EXHIBIT 4(B)
Execution Copy
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DPL INC.
TO
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
TRUSTEE
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INDENTURE
DATED AS OF MARCH 1, 2000
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TABLE OF CONTENTS
PARTIES...................................................................... 1
RECITAL OF THE COMPANY........................................................5
ARTICLE ONE...................................................................5
Definitions and Other Provisions of General Application.......................5
SECTION 101. DEFINITIONS..................................................5
ACT.....................................................................6
AFFILIATE...............................................................6
ASSETS..................................................................6
AUTHENTICATING AGENT....................................................6
AUTHORIZED OFFICER......................................................6
BOARD OF DIRECTORS......................................................6
BOARD RESOLUTION........................................................6
BUSINESS DAY............................................................6
CASH TRANSACTION........................................................6
COMMISSION..............................................................6
COMPANY.................................................................7
COMPANY REQUEST.........................................................7
CONSOLIDATED CAPITALIZATION.............................................7
CONSOLIDATED INDEBTEDNESS...............................................7
CONSOLIDATED SHAREHOLDERS' EQUITY.......................................7
CONSOLIDATED SUBSIDIARY.................................................7
CORPORATE TRUST OFFICE..................................................7
CORPORATION.............................................................7
DEFAULTED INTEREST......................................................7
DISCOUNT SECURITY.......................................................7
DOLLAR..................................................................7
DP&L....................................................................7
ELIGIBLE OBLIGATIONS....................................................8
EVENT OF DEFAULT........................................................8
GOVERNMENTAL AUTHORITY..................................................8
GOVERNMENT OBLIGATIONS..................................................8
HOLDER..................................................................8
INDENTURE...............................................................8
INTEREST PAYMENT DATE...................................................8
MANDATORY SINKING FUND PAYMENT..........................................8
MATURITY................................................................8
OFFICER'S CERTIFICATE...................................................9
OPINION OF COUNSEL......................................................9
OPTIONAL SINKING FUND PAYMENT...........................................9
OUTSTANDING.............................................................9
PAYING AGENT...........................................................10
PERIODIC OFFERING......................................................10
PERSON.................................................................10
PLACE OF PAYMENT.......................................................10
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PREDECESSOR SECURITY...................................................10
REDEMPTION DATE........................................................10
REDEMPTION PRICE.......................................................10
REGULAR RECORD DATE....................................................11
REQUIRED CURRENCY......................................................11
RESPONSIBLE OFFICER....................................................11
SECURITIES.............................................................11
SECURITY REGISTER" and "SECURITY REGISTRAR.............................11
SPECIAL RECORD DATE....................................................11
STATED INTEREST RATE...................................................11
STATED MATURITY........................................................11
SUBSIDIARY.............................................................11
TRANCHE................................................................11
TRUST INDENTURE ACT....................................................11
TRUSTEE................................................................12
UNITED STATES..........................................................12
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS........................12
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE......................12
SECTION 104. ACTS OF HOLDERS.............................................13
SECTION 105. NOTICES, ETC. TO TRUSTEE AND COMPANY........................15
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.....................16
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT...........................16
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS....................16
SECTION 109. SUCCESSORS AND ASSIGNS......................................16
SECTION 110. SEPARABILITY CLAUSE.........................................17
SECTION 111. BENEFITS OF INDENTURE.......................................17
SECTION 112. GOVERNING LAW...............................................17
SECTION 113. LEGAL HOLIDAYS..............................................17
ARTICLE TWO..................................................................17
Security Forms...............................................................17
SECTION 201. FORMS GENERALLY.............................................17
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.............18
ARTICLE THREE................................................................18
The Securities...............................................................18
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES........................18
SECTION 302. DENOMINATIONS...............................................22
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING..............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
ARTICLE FOUR.................................................................29
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Redemption of Securities.....................................................29
SECTION 401. APPLICABILITY OF ARTICLE....................................29
SECTION 402. ELECTION TO REDEEM; NOTICE TO TRUSTEE.......................30
SECTION 403. SELECTION OF SECURITIES TO BE REDEEMED......................30
SECTION 404. NOTICE OF REDEMPTION........................................30
SECTION 405. SECURITIES PAYABLE ON REDEMPTION DATE.......................32
SECTION 406. SECURITIES REDEEMED IN PART.................................32
ARTICLE FIVE.................................................................32
Sinking Funds................................................................32
SECTION 501. APPLICABILITY OF ARTICLE....................................32
SECTION 502. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.......33
SECTION 503. REDEMPTION OF SECURITIES FOR SINKING FUND...................33
ARTICLE SIX..................................................................35
Covenants....................................................................35
SECTION 601. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST..................35
SECTION 602. MAINTENANCE OF OFFICE OR AGENCY.............................35
SECTION 603. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST...........36
SECTION 604. CORPORATE EXISTENCE.........................................37
SECTION 605. MAINTENANCE OF PROPERTIES...................................37
SECTION 606. ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE...............37
SECTION 607. WAIVER OF CERTAIN COVENANTS.................................38
SECTION 608. LIMITATION ON LIENS.........................................38
ARTICLE SEVEN................................................................41
Satisfaction and Discharge...................................................41
SECTION 701. SATISFACTION AND DISCHARGE OF SECURITIES....................41
SECTION 702. SATISFACTION AND DISCHARGE OF INDENTURE.....................43
SECTION 703. APPLICATION OF TRUST MONEY..................................44
ARTICLE EIGHT................................................................44
Events of Default; Remedies..................................................44
SECTION 801. EVENTS OF DEFAULT...........................................44
SECTION 802. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT..........45
SECTION 803. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE..................................................47
SECTION 804. TRUSTEE MAY FILE PROOFS OF CLAIM............................47
SECTION 805. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.48
SECTION 806. APPLICATION OF MONEY COLLECTED..............................48
SECTION 807. LIMITATION ON SUITS.........................................49
SECTION 808. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST...........................49
SECTION 809. RESTORATION OF RIGHTS AND REMEDIES..........................49
SECTION 810. RIGHTS AND REMEDIES CUMULATIVE..............................50
SECTION 811. DELAY OR OMISSION NOT WAIVER................................50
SECTION 812. CONTROL BY HOLDERS OF SECURITIES............................50
SECTION 813. WAIVER OF PAST DEFAULTS.....................................51
SECTION 814. UNDERTAKING FOR COSTS.......................................51
SECTION 815. WAIVER OF STAY OR EXTENSION LAWS............................51
ARTICLE NINE.................................................................52
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The Trustee..................................................................52
SECTION 901. CERTAIN DUTIES AND RESPONSIBILITIES.........................52
SECTION 902. NOTICE OF DEFAULTS..........................................52
SECTION 903. CERTAIN RIGHTS OF TRUSTEE...................................53
SECTION 904. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES......54
SECTION 905. MAY HOLD SECURITIES.........................................54
SECTION 906. MONEY HELD IN TRUST.........................................54
SECTION 907. COMPENSATION AND REIMBURSEMENT..............................54
SECTION 908. DISQUALIFICATION; CONFLICTING INTERESTS.....................55
SECTION 909. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.....................55
SECTION 910. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR...........56
SECTION 911. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR......................58
SECTION 912. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.59
SECTION 913. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY...........59
SECTION 914. CO-TRUSTEES AND SEPARATE TRUSTEES...........................60
SECTION 915. APPOINTMENT OF AUTHENTICATING AGENT.........................61
ARTICLE TEN..................................................................63
Holders' Lists and Reports by Trustee and Company............................63
SECTION 1001. LISTS OF HOLDERS...........................................63
SECTION 1002. REPORTS BY TRUSTEE AND COMPANY.............................63
ARTICLE ELEVEN...............................................................63
Consolidation, Merger, Conveyance or Other Transfer..........................63
SECTION 1101. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.......63
SECTION 1102. SUCCESSOR CORPORATION SUBSTITUTED..........................64
ARTICLE TWELVE...............................................................64
Supplemental Indentures......................................................64
SECTION 1201. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.........64
SECTION 1202. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS............66
SECTION 1203. EXECUTION OF SUPPLEMENTAL INDENTURES.......................67
SECTION 1204. EFFECT OF SUPPLEMENTAL INDENTURES..........................67
SECTION 1205. CONFORMITY WITH TRUST INDENTURE ACT........................67
SECTION 1206. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.........68
SECTION 1207. MODIFICATION WITHOUT SUPPLEMENTAL INDENTURE................68
ARTICLE THIRTEEN.............................................................68
Meetings of Holders; Action Without Meeting..................................68
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED..................68
SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS.........................69
SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS.......................69
SECTION 1304. QUORUM; ACTION.............................................70
SECTION 1305. ATTENDANCE AT MEETINGS; DETERMINATION OF VOTING RIGHTS;....70
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF MEETINGS............71
SECTION 1307. ACTION WITHOUT MEETING.....................................72
ARTICLE FOURTEEN.............................................................72
Immunity of Incorporators, Shareholders, Officers and Directors..............72
SECTION 1401. LIABILITY SOLELY CORPORATE.................................72
Signatures...................................................................71
iv
INDENTURE, dated as of March 1, 2000, between DPL INC., a
corporation duly organized and existing under the laws of the State of Ohio
(herein called the "Company"), having its principal xxxxxx xx Xxxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxx, Xxxx 00000, and BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION,
a national banking association, having its principal corporate trust office at 1
Bank Xxx Xxxxx, Xxxxx XX0-0000, Xxxxxxx, Xxxxxxxx 00000-0000, as Trustee (herein
called the "Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), in an unlimited aggregate principal amount to be issued in one or
more series as contemplated herein; and all acts necessary to make this
Indenture a valid agreement of the Company have been performed.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires, capitalized terms used herein
shall have the meanings assigned to them in Article One of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the
singular;
(b) all terms used herein without definition which are defined in
the Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in the United States, 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, the Company
shall, to the extent required, conform to any order, rule or
5
regulation of any administrative agency, regulatory authority or
other governmental body having jurisdiction over the Company; and
(d) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally in Article Nine and Section 608,
are defined in that Article and Section.
"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 the management and policies of such Person, directly or through one or
more intermediaries, whether through the ownership of voting securities, by
contract or otherwise; and the terms "CONTROLLING" and "CONTROLLED" have
meanings correlative to the foregoing.
"ASSETS" has the meaning specified in Section 608(b)(4).
"AUTHENTICATING AGENT" means any Person (other than the Company or an
Affiliate of the Company) authorized by the Trustee pursuant to Section 915 to
act on behalf of the Trustee to authenticate one or more series of Securities or
Tranche thereof.
"AUTHORIZED OFFICER" means the Chairman of the Board, the President,
any Vice President, the Treasurer, any Assistant Treasurer, or any other officer
or agent of the Company duly authorized by the Board of Directors to act in
respect of matters relating to this Indenture.
"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
Secretary or an Assistant 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.
"CASH TRANSACTION" has the meaning specified in Section 913(a).
"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 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.
6
"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 REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Company by an Authorized Officer and delivered to the
Trustee.
"CONSOLIDATED CAPITALIZATION" has the meaning specified in Section
608(b)(1).
"CONSOLIDATED INDEBTEDNESS" has the meaning specified in Section
608(b)(5).
"CONSOLIDATED SHAREHOLDERS' EQUITY" has the meaning specified in
Section 608(b)(2).
"CONSOLIDATED SUBSIDIARY" has the meaning specified in Section
608(b)(3).
"CORPORATE TRUST OFFICE" means the principal corporate trust office of
the Trustee at which, at any particular time, its corporate trust business shall
be administered, which office at the date of execution and delivery of this
Indenture is located at 0 Xxxx Xxx Xxxxx, Xxxxx XX0-0000, Xxxxxxx, Xxxxxxxx
00000-0000, Attention: Global Corporate Trust Services, except for purposes of
Section 602, such term shall mean the office or agency of the Trustee in the
Borough of Manhattan, The City of New York, which office at the date hereof is
located at 00 Xxxx Xxxxxx, Xxxxxx Xxxxx, Xxx Xxxx, XX 00000.
"CORPORATION" means a corporation, association, company, joint stock
company or business trust.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DISCOUNT SECURITY" means any Security which provides for an amount
less than the principal amount thereof to be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 802. "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.
"DP&L" means The Dayton Power and Light Company, an Ohio corporation,
its successors and assigns.
"ELIGIBLE OBLIGATIONS" means:
(a) with respect to Securities denominated in Dollars, Government
Obligations; or
(b) with respect to Securities denominated in a currency other than
Dollars or in a composite currency, such other obligations or
instruments as shall be specified with respect to such Securities, as
contemplated by Section 301.
"EVENT OF DEFAULT" has the meaning specified in Section 801.
"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 of the foregoing, or
any department, agency, authority or other instrumentality of any of the
foregoing.
7
"GOVERNMENT OBLIGATIONS" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
and 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 $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 supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of a particular series of Securities established as
contemplated by Section 301.
"INTEREST PAYMENT DATE", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"MANDATORY SINKING FUND PAYMENT" has the meaning specified in Section 501.
"MATURITY", when used with respect to any Security, means the date on which the
principal or an installment of principal of such Security 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.
"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, which opinion shall be acceptable to the Trustee.
"OPTIONAL SINKING FUND PAYMENT" has the meaning specified in Section 501.
"OUTSTANDING", when used with respect to Securities, means, as of the date of
determination, all Securities theretofore authenticated and delivered under this
Indenture, except:
(a) Securities theretofore canceled or delivered to the Security
Registrar for cancellation;
(b) Securities deemed to have been paid in accordance with Section
701; and
8
(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 any request,
demand, authorization, direction, notice, consent or waiver hereunder or whether
or not a quorum is present at a meeting of Holders of Securities,
(x) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor
(unless the Company, such Affiliate or such obligor owns all
Securities Outstanding under this Indenture, or 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 the pledgee establishes
to the satisfaction of the Trustee the pledgee's 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 802 provided that (i) if, as of such date,
the principal amount payable at the Stated Maturity of a Security is
not determinable, the principal amount of such Security which shall be
deemed to be Outstanding shall be the amount as specified or
determined as contemplated by Section 301, and (ii) the principal
amount of a Security denominated in one or more foreign currencies or
currency units which shall be deemed to be Outstanding shall be the
U.S. dollar equivalent, determined as of such date in the manner
provided as contemplated by Section 301, of the principal amount of
such Security (or, in the case of Security described in clause (i) or
(ii) above, of the amount determined as provided in such clause);
provided, further, that, in the case of any Security the principal of which is
payable from time to time without presentment or surrender, the principal amount
of such Security that shall be deemed to be Outstanding at any time for all
purposes of this Indenture shall be the original principal amount thereof less
the aggregate amount of principal thereof theretofore paid.
"PAYING AGENT" means any Person, including the Company, authorized by the
Company to pay the principal of, and premium, if any, or interest, if any, on
any Securities on behalf of the Company.
9
"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 upon the issuance of
such Securities.
"PERSON" means any individual, corporation, partnership, 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 602, principal of and premium, if any,
and interest, if any, on the Securities of such series or Tranche are payable.
"PREDECESSOR SECURITY" of any particular Security means every previous Security
evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed (to the extent
lawful) to evidence the same debt as the mutilated, destroyed, lost or stolen
Security.
"REDEMPTION DATE", when used with respect to any Security to be redeemed, means
the date fixed for such redemption by or pursuant to this Indenture.
"REDEMPTION PRICE", when used with respect to any Security to be redeemed, means
the price at which it is to be redeemed pursuant to this Indenture.
"REGULAR RECORD DATE" for the interest payable on any Interest Payment Date on
the Securities of any series means the date specified for that purpose as
contemplated by Section 301.
"REQUIRED CURRENCY" has the meaning specified in Section 311.
"RESPONSIBLE OFFICER", when used with respect to the Trustee, means any officer
of the Trustee assigned by the Trustee to administer its corporate trust
matters.
"SECURITIES" has the meaning stated in the first recital of this Indenture and
more particularly means any securities authenticated and delivered under this
Indenture.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective meanings
specified in Section 305.
"SELF-LIQUIDATING PAPER" has the meaning specified in Section 913(b).
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest on the
Securities of any series means a date fixed by the Trustee pursuant to Section
307.
"STATED INTEREST RATE" means a rate (whether fixed or variable) at which an
obligation by its terms is stated to bear simple interest. Any calculation or
other determination to be made under this Indenture by reference to the Stated
Interest Rate on a Security shall be made without regard to the effective
interest cost to the Company of such Security and without regard to the Stated
10
Interest Rate on, or the effective cost to the Company of, any other
indebtedness in respect of which the Company's obligations are evidenced or
secured in whole or in part by such Security.
"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).
"SUBSIDIARY" means a corporation more than 50% of the outstanding voting stock
of which is owned, directly or indirectly, by the Company or by one or more
other Subsidiaries, or by the Company and one or more other Subsidiaries. For
the purposes of this definition, "voting stock" means stock that ordinarily has
voting power for the election of directors, whether at all times or only so long
as no senior class of stock has such voting power by reason of any contingency.
"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 such Person,
"Trustee" as used with respect to the Securities of any series shall mean the
Trustee with respect to Securities of that series.
"UNITED STATES" means the United States of America, its Territories, its
possessions and other areas subject to its political jurisdiction.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided in this Indenture, upon any
application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officer's Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating
to the proposed action (including any covenants compliance with which
constitutes a condition precedent) have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all
such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
11
(a) a statement that each Person 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 Person, such Person
has made such examination or investigation as is necessary to enable
such Person to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such Person,
such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only
one document, but one such Person may certify or give an opinion with
respect to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the matters upon which such
Officer's Certificate or opinion are based are erroneous. Any such
certificate or Opinion of Counsel may be based, insofar as it relates
to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that
the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions
or other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
Whenever, subsequent to the receipt by the Trustee of any Board
Resolution, 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
12
indicates that action has been taken by or at the request of the
Company which could not have been taken had the original document or
instrument not contained such error or omission, the action so taken
shall not be invalidated or otherwise rendered ineffective but shall
be and remain in full force and effect, except to the extent that such
action was a result of willful misconduct or bad faith. Without
limiting the generality of the foregoing, any Securities issued under
the authority of such defective document or instrument shall
nevertheless be the valid obligations of the Company entitled to the
benefits of this Indenture equally and ratably with all other
Outstanding Securities, except as aforesaid.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
election, waiver or other action provided by this Indenture to be
made, given or taken by Holders may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such
Holders in person or by an agent duly appointed in writing or,
alternatively, may be embodied in and evidenced by the record of
Holders voting in favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders duly called and held
in accordance with the provisions of Article Thirteen, or a
combination of such instruments and any such record. Except as herein
otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the
Trustee and, where it is hereby expressly required, to the Company.
Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Holders signing such instrument or instruments
and so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the
holding by any Person of a Security, shall be sufficient for any
purpose of this Indenture and (subject to Section 901) conclusive in
favor of the Trustee and the Company, if made in the manner provided
in this Section. The record of any meeting of Holders shall be proved
in the manner provided in Section 1306.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that
the individual signing such instrument or writing acknowledged to him
the execution thereof or may be proved in any other manner which the
Trustee and the Company deem sufficient. Where such execution is by a
signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority.
(c) The 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
13
done by the Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
(e) Until such time as written instruments shall have been delivered
to the Trustee with respect to the requisite percentage of principal
amount of Securities for the action contemplated by such instruments,
any such instrument executed and delivered by or on behalf of a Holder
may be revoked with respect to any or all of such Securities by
written notice by such Holder or any subsequent Holder, proven in the
manner in which such instrument was proven.
(f) Securities of any series, or any Tranche thereof, authenticated
and delivered after any Act of Holders may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any
action taken by such Act of Holders. If the Company shall so
determine, new Securities of any series, or any Tranche thereof, so
modified as to conform, in the opinion of the Trustee and the Company,
to such action may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series or Tranche.
(g) If the Company shall solicit from Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, fix in advance a record date for the
determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but
the Company shall have no obligation to do so. If such a record date
is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or after such record
date, but only the Holders of record at the close of business on the
record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of the
Outstanding Securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or
other Act, and for that purpose the Outstanding Securities shall be
computed as of the record date.
SECTION 105. NOTICES, ETC. TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent,
election, waiver or Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished to, or
filed with, the Trustee by any Holder or by the Company, or the
Company by the Trustee or by any Holder, shall be sufficient for every
purpose hereunder (unless otherwise herein expressly provided) if in
writing and delivered personally to an officer or other responsible
employee of the addressee, or transmitted by facsimile transmission or
other direct written electronic means to such telephone number or
other electronic communications address as the parties hereto shall
from time to time designate, or transmitted by certified or 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 One Trust Company, National Association
14
1 Bank Xxx Xxxxx, Xxxxx XX0-0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Global Corporate Trust Services Division/Xxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Company, to:
DPL Inc.
Xxxxxxxxxx Xxxxx Xxxxxxxxx
Xxxxxx, Xxxx 00000
Attention: Corporate Secretary
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Any communication contemplated herein shall be deemed to have been
made, given, furnished and filed if personally delivered, on the date
of delivery, if transmitted by facsimile transmission or other direct
written electronic means, on the date of transmission, and if
transmitted by certified or 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, if any, and not
earlier than the earliest date, if any, prescribed for the giving of
such notice.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such
notice to Holders by mail, then such notification as shall be made
with the approval of the Trustee in a manner reasonably calculated, to
the extent practicable under the circumstances, to provide prompt
notice, 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.
15
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 of the provisions
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 and
Trustee shall bind their respective successors and assigns, whether so
expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or the Securities shall be
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 laws of the State of New York, without regard
to the principles of conflicts of laws of the State of New York other
than Section 5-1401 of the New York General Obligations Law.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture
or of the Securities other than a provision in Securities of any
series, or any Tranche thereof, or in the Board Resolution or
Officer's Certificate which establishes the terms of the Securities of
such series or Tranche, which specifically states that such provision
shall apply in lieu of this Section) payment of interest or principal
and premium, if any, need not be made at such Place of Payment on such
date, but may be made on the next succeeding Business Day at such
Place of Payment, with the same force and effect, and in the same
amount, as if made on the Interest Payment Date or Redemption Date, or
at the Stated Maturity, as the case may be, and, if such payment is
made or duly provided for on such Business Day, no interest shall
16
accrue on the amount so payable for the period from and after such
Interest Payment Date, Redemption Date or Stated Maturity, as the case
may be, to such Business Day.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The definitive Securities of each series shall be in substantially the
form or forms thereof established in the indenture supplemental hereto
establishing such series or in a Board Resolution establishing such
series, or in an Officer's Certificate pursuant to such supplemental
indenture or Board Resolution, in each case with such appropriate
insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the
rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by
their execution of the Securities. If the form or forms of Securities
of any series are established in a Board Resolution or in an Officer's
Certificate pursuant to a Board Resolution, such Board Resolution and
Officer's Certificate, if any, shall be delivered to the Trustee at or
prior to the delivery of the Company Order contemplated by Section 303
for the authentication and delivery of such Securities.
Unless otherwise specified as contemplated by Sections 301 or 1201(g),
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.
Dated:
---------------------------------
as Trustee
By:
------------------------------
Authorized Signatory
17
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. Subject to the
last paragraph of this Section, prior to the authentication and
delivery of Securities of any series there shall be established by
specification in a supplemental indenture or in a Board Resolution, or
in an Officer's Certificate pursuant to a supplemental indenture or a
Board Resolution:
(a) the title of the Securities of such series (which shall
distinguish the Securities of such series from Securities of all other
series);
(b) any limit upon the aggregate principal amount of the Securities of
such series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of such series pursuant to Section 304, 305, 306, 406 or
1206 and except for any Securities which, pursuant to Section 303, are
deemed never to have been authenticated and delivered hereunder);
(c) the Person or Persons (without specific identification) to whom
interest on Securities of such series, or any Tranche thereof, shall
be payable on any Interest Payment Date, 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);
(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; and the basis of computation of interest, if
other than as provided in Section 310;
18
(f) the place or places at which or methods by which (1) the principal
of and premium, if any, and interest, if any, on Securities of such
series, or any Tranche thereof, shall be payable, (2) registration of
transfer of Securities of such series, or any Tranche thereof, may be
effected, (3) exchanges of Securities of such series, or any Tranche
thereof, may be effected and (4) 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 for
such series or Tranche; and if such is the case, that the principal of
such Securities shall be payable without presentment or surrender
thereof;
(g) the period or periods within which, or the date or dates on which,
the price or prices at which and the terms and conditions upon which
the Securities of such series, or any Tranche thereof, may be
redeemed, in whole or in part, at the option of the Company and any
restrictions on such redemptions, including but not limited to a
restriction on a partial redemption by the Company of the Securities
of any series, or any Tranche thereof, resulting in delisting of such
Securities from any national exchange;
(h) the obligation or obligations, if any, of the Company to redeem or
purchase 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
$1,000 and any integral multiple thereof;
(j) the currency or currencies, including composite currencies, in
which payment of the principal of and premium, if any, and interest,
if any, on the Securities of such series, or any Tranche thereof,
shall be payable (if other than in Dollars);
(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 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
19
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 802;
(o) any Events of Default, in addition to those specified in Section
801, with respect to the Securities of such series, and any covenants
of the Company for the benefit of the Holders of the Securities of
such series, or any Tranche thereof, in addition to those set forth in
Article Six;
(p) the terms, if any, pursuant to which the Securities of such
series, or any Tranche thereof, may be converted into or exchanged for
shares of capital stock or other securities of the Company or any
other Person;
(q) the obligations or instruments, if any, which shall be considered
to be Eligible Obligations in respect of the Securities of such
series, or any Tranche thereof, denominated in a currency other than
Dollars or in a composite currency, and any 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 701;
(r) if the Securities of such series, or any Tranche thereof, are to
be issued in global form, (i) any limitations on the rights of the
Holder or Holders of such Securities to transfer or exchange the same
or to obtain the registration of transfer thereof, (ii) any
limitations on the rights of the Holder or Holders thereof to obtain
certificates therefor in definitive form in lieu of temporary form and
(iii) any and all other matters incidental to such Securities;
(s) if the Securities of such series, or any Tranche thereof, are to
be issuable as bearer securities, any and all matters incidental
thereto which are not specifically addressed in a supplemental
indenture as contemplated by clause (g) of Section 1201;
(t) to the extent not established pursuant to clause (r) of this
paragraph, any limitations on the rights of the Holders of the
Securities of such Series, or any Tranche thereof, to transfer or
exchange such Securities or to obtain the registration of transfer
thereof; and if a service charge will be made for the registration of
transfer or exchange of Securities of such series, or any Tranche
thereof, the amount or terms thereof;
(u) any exceptions to Section 113, or variation in the definition of
Business Day, with respect to the Securities of such series, or any
Tranche thereof;
(v) any collateral security, assurance or guarantee for the Securities
of such series;
20
(w) the non-applicability of Section 608 to the Securities of such
Series or any exceptions or modifications of Section 608 with respect
to the Securities of such Series;
(x) any rights or duties of another Person to assume the obligations
of the Company with respect to the Securities of such series (whether
as joint obligor, primary obligor, secondary obligor or substitute
obligor) and any rights or duties to discharge and release any obligor
with respect to the Securities of such series or the Indenture to the
extent related to such series; and
(y) any other terms of the Securities of such series, or any Tranche
thereof, not inconsistent with the provisions of this Indenture.
With respect to Securities of a series subject to a Periodic Offering,
the indenture supplemental hereto or the Board Resolution which
establishes such series, or the Officer's Certificate pursuant to such
supplemental indenture or Board Resolution, as the case may be, may
provide general terms or parameters for Securities of such series and
provide either that the specific terms of Securities of such series,
or any Tranche thereof, shall be specified in a Company Order or that
such terms shall be determined by the Company or its agents in
accordance with procedures specified in a Company Order as
contemplated by the clause (b) of Section 303.
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 minimum denominations of $1,000 and
any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, or any Tranche thereof, the Securities
shall be executed on behalf of the Company by an Authorized Officer
and may have the corporate seal of the Company affixed thereto or
reproduced thereon attested by any other Authorized Officer or by the
Secretary or an Assistant Secretary of the Company. The signature of
any or all of these officers on the Securities may be manual or
facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at the time of execution Authorized Officers or the Secretary
or an Assistant Secretary of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such
Securities.
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;
21
(b) a Company Order requesting the authentication and delivery of such
Securities and, to the extent that the terms of such Securities shall
not have been established in an indenture supplemental hereto or in a
Board Resolution, or in an Officer's Certificate pursuant to a
supplemental indenture or Board Resolution, all as contemplated by
Sections 201 and 301, either (i) establishing such terms or (ii) in
the case of Securities of a series subject to a Periodic Offering,
specifying procedures, acceptable to the Trustee, by which such terms
are to be established (which procedures may provide, to the extent
acceptable to the Trustee, for authentication and delivery pursuant to
oral or electronic instructions from the Company or any agent or
agents thereof, which oral instructions are to be promptly confirmed
electronically or in writing), in either case in accordance with the
instrument or instruments delivered pursuant to clause (a) above;
(c) an Officer's Certificate stating that (i) the Company is not, and
upon the authentication by the Trustee of the series of Securities,
will not be in default under any of the terms or covenants contained
in the Indenture, and (ii) all conditions that must be met by the
Company to issue Securities under the Indenture have been met;
(d) the Securities of such series, executed on behalf of the Company
by an Authorized Officer;
(e) 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) such Securities, when authenticated and delivered by the
Trustee and issued and delivered by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel,
will have been duly issued under this Indenture and will
constitute valid and legally binding obligations of the Company,
entitled to the benefits provided by this Indenture, and
enforceable in accordance with their terms, subject, as to
enforcement, to laws relating to or affecting generally the
enforcement of creditors' rights, including, without limitation,
bankruptcy and insolvency laws and to general principles of
equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law);
provided, however, that, with respect to Securities of a series
subject to a Periodic Offering, the Trustee shall be entitled to
receive such Opinion of Counsel only once at or prior to the time of
the first authentication 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:
22
(x) when the terms of such Securities shall have been established
pursuant to a Company Order or Orders or pursuant to such
procedures (acceptable to the Trustee) as may be specified from
time to time by a Company Order or Orders, all as contemplated by
and in accordance with the instrument or instruments delivered
pursuant to clause (a) above, such terms will have been duly
authorized by the Company and will have been established in
conformity with the provisions of this Indenture; and
(y) such Securities, when authenticated and delivered by the
Trustee in accordance with this Indenture and the Company Order
or Orders or specified procedures referred to in paragraph (x)
above and issued and delivered by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel,
will have been duly issued under this Indenture and will
constitute valid and legally binding obligations of the Company,
entitled to the benefits provided by the Indenture, and
enforceable in accordance with their terms, subject, as to
enforcement, to laws relating to or affecting generally the
enforcement of creditors' rights, including, without limitation,
bankruptcy and insolvency laws, and to general principles of
equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law).
With respect to Securities of a series subject to a Periodic Offering,
the Trustee may conclusively rely, as to the authorization by the
Company of any of such Securities, the form, terms thereof and the
legality, validity, binding effect and enforceability thereof, and
compliance of the authentication and delivery thereof with the terms
and conditions of this Indenture, upon the Opinion of Counsel and
other documents delivered pursuant to Sections 201 and 301 and this
Section, as applicable, at or prior to the time of the first
authentication of Securities of such series unless and until such
opinion or other documents have been superseded or revoked or expire
by their terms. In connection with the authentication and delivery of
Securities of a series 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 or terms of the Securities of any series have been
established by or pursuant to a Board Resolution or an Officer's
Certificate as permitted by Sections 201 or 301, the Trustee shall not
be required to authenticate such Securities if the issuance of such
Securities pursuant to this Indenture will materially or adversely
affect the Trustee's own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
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, 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
23
substantially in the form provided for herein executed by the Trustee
or an Authenticating Agent by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence,
that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered
hereunder to the Company, or any Person acting on its behalf, but
shall never have been issued and sold by the Company, and the Company
shall deliver such Security to the Trustee for cancellation as
provided in Section 309 together with a written statement (which need
not comply with Section 102 and need not be accompanied by an Opinion
of Counsel) stating that such Security has never been issued and sold
by the Company, for all purposes of this Indenture such Security shall
be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits hereof.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, or any
Tranche thereof, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued, with
such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
Unless otherwise specified as contemplated by Section 301 with respect
to the Securities of any series, or any Tranche thereof, if temporary
Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay
after the preparation of definitive Securities of such series or
Tranche, the temporary Securities of such series or Tranche shall be
exchangeable, 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 602 in a Place of Payment for such Securities. Upon such
surrender of temporary Securities for such exchange, the Company
shall, except as aforesaid, execute and the Trustee shall authenticate
and deliver in exchange therefor definitive Securities of the same
series and Tranche of authorized denominations and of like tenor and
aggregate principal amount.
Until exchanged in full as hereinabove provided, temporary Securities
shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and Tranche and
of like tenor authenticated and delivered hereunder.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept in each office designated pursuant
to Section 602, with respect to the Securities of each series, a
register (all registers kept in accordance with this Section being
collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall
24
provide for the registration of Securities of such series, or any
Tranche thereof, and the registration of transfer thereof. The Company
shall designate one Person to maintain the Security Register for the
Securities of each series on a consolidated basis, and such Person is
referred to herein, with respect to such series, as the "Security
Registrar." Anything herein to the contrary notwithstanding, the
Company may designate one or more of its offices as an office in which
a register with respect to the Securities of one or more series shall
be maintained. The Security Register shall be open for inspection by
the Trustee and the Company at all reasonable times.
Except as otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, upon
surrender for registration of transfer of any Security of such series
or Tranche at the office or agency of the Company maintained pursuant
to Section 602 in a Place of Payment for such series or Tranche, the
Company shall execute, and the Trustee shall authenticate and deliver,
in the name of the designated transferee or transferees, one or more
new Securities of the same series and Tranche, of authorized
denominations and of like tenor and aggregate principal amount.
Except as otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, any
Security of such series or Tranche may be exchanged at the option of
the Holder, for one or more new Securities of the same series and
Tranche, of authorized denominations and of like tenor and aggregate
principal amount, upon surrender of the Securities to be exchanged at
any such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive.
All Securities delivered upon any registration of transfer or exchange
of Securities shall be valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture,
as the Securities surrendered upon such registration of transfer or
exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company, the Trustee or
the Security Registrar) be duly endorsed or shall be accompanied by a
written instrument of transfer in form satisfactory to the Company,
the Trustee or the Security Registrar, as the case may be, duly
executed by the Holder thereof or his attorney duly authorized in
writing.
Unless otherwise specified as contemplated by Section 301 with respect
to Securities of any series, or any Tranche thereof, no service charge
shall be made for any registration of transfer or exchange of
Securities, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 406 or 1206
not involving any transfer.
The Company shall not be required to execute or to provide for the
registration of transfer of or the exchange of (a) Securities of any
series, or any Tranche thereof, during a period of 15 days immediately
preceding the date notice of redemption of any such securities is
25
mailed or (b) any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in
part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and Tranche, and
of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a)
evidence to their satisfaction of the ownership of and the
destruction, loss or theft of any Security and (b) such security or
indemnity as may be reasonably required by them to save each of them
and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security is held by a
Person purporting to be the owner of such Security, the Company shall
execute and the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security, a new Security of the same
series and Tranche, and of like tenor and principal amount and bearing
a number not contemporaneously outstanding.
Notwithstanding the foregoing, in case any such mutilated, destroyed,
lost or stolen Security has become or is about to become due and
payable, the Company in its discretion may, 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
original additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone other than the Holder of such new Security, and
any such new Security shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other
Securities of such series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen
Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise specified as contemplated by Section 301 with respect
to the Securities of any series, or any Tranche thereof, interest on
any Security which is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for
such interest.
26
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the related Regular Record Date by virtue of
having been such Holder, and such Defaulted Interest may be paid by
the Company, at its election in each case, as provided in clause (a)
or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on a date (herein called a "Special Record Date") for the
payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security
of such series and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit on or prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit
of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company, shall promptly cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of
Securities of such series at the address of such Holder as it appears
in the Security Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date.
(b) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall
carry the rights to interest accrued and unpaid, and to accrue, which
were carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the
27
absolute owner of such Security for the purpose of receiving payment
of principal of and premium, if any, and (subject to Sections 305 and
307) interest, if any, on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and 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 TRUSTEE.
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than
the Trustee, be delivered to the Trustee and, if not theretofore
canceled, shall be promptly canceled by the Trustee. The Company may
at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may
have acquired in any manner whatsoever or which the Company shall not
have issued and sold, and all Securities so delivered shall be
promptly canceled by the Trustee. No Securities shall be authenticated
in lieu of or in exchange for any Securities canceled as provided in
this Section, except as expressly permitted by this Indenture. All
canceled Securities held by the Trustee shall be disposed of in
accordance with the customary procedures of the Trustee at the time in
effect. 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 360-day
year consisting of twelve 30-day months and for any period shorter
than a full month, on the basis of the actual number of days elapsed
in such period.
SECTION 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 or interest thereon, shall not be discharged
or satisfied by any tender by the Company, or recovery by the Trustee,
in any currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the Trustee timely
holding the full amount of the Required Currency then due and payable.
If any such tender or recovery is in a currency other than the
Required Currency, the Trustee may take such actions as it considers
appropriate to exchange such currency for the Required Currency. The
costs and risks of any such exchange, including without limitation the
risks of delay and exchange rate fluctuation, shall be borne by the
Company, the Company shall remain fully liable for any shortfall or
delinquency in the full amount of Required Currency then due and
payable, and in no circumstances shall the Trustee be liable therefor
except in the case of its negligence or willful misconduct.
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ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 401. APPLICABILITY OF ARTICLE.
Securities of any series, or any Tranche thereof, which are redeemable
before their Stated Maturity shall be redeemable in accordance with
their terms and (except as otherwise specified as contemplated by
Section 301 for Securities of such series or Tranche) in accordance
with this Article.
SECTION 402. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution or an Officer's Certificate. The
Company shall, at least 45 days prior to the Redemption Date fixed by
the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee 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 Trustee 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, in the absence of any
such provision, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities
of such series or Tranche or any integral multiple thereof) of the
principal amount of Securities of such series or Tranche of a
denomination larger than the minimum authorized denomination for
Securities of such series or Tranche; provided, however, that if, as
indicated in an Officer's Certificate, the Company shall have offered
to purchase all or any principal amount of the Securities then
Outstanding of any series, or any Tranche thereof, and less than all
of such Securities as to which such offer was made shall have been
tendered to the Company for such purchase, the Trustee, if so directed
by Company Order, shall select for redemption all or any principal
amount of such Securities which have not been so tendered.
The Trustee shall promptly notify the Company and the Security
Registrar in writing of the Securities selected for redemption and, in
the case of any Securities selected to be redeemed in part, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed
29
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 30
nor more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price (if known),
(c) if less than all the Securities of any series or Tranche are to be
redeemed, the identification of the particular Securities to be
redeemed and the portion of the principal amount of any Security to be
redeemed in part,
(d) that on the Redemption Date the Redemption Price, together with
accrued interest, if any, to the Redemption Date, will become due and
payable upon each such Security to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date,
(e) the place or places where such Securities are to be surrendered
for payment of the Redemption Price and accrued interest, if any,
unless it shall have been specified as contemplated by Section 301
with respect to such Securities that such surrender shall not be
required,
(f) that the redemption is for a sinking or other fund, if such is the
case,
(g) CUSIP number, if any, and
(h) such other matters as the Company shall deem desirable or
appropriate.
Unless otherwise specified with respect to any Securities in
accordance with Section 301, with respect to any notice of redemption
of Securities at the election of the Company, unless, upon the giving
of such notice, such Securities shall be deemed to have been paid in
accordance with Section 701, such notice may state that such
redemption shall be conditional upon the receipt by the Paying Agent
or Agents for such Securities, on or prior to the date fixed for such
redemption, of money sufficient to pay the principal of and premium,
if any, and interest, if any, on such Securities and that if such
money shall not have been so received such notice shall be of no force
or effect and the Company shall not be required to redeem such
Securities. In the event that such notice of redemption contains such
a condition and such money is not so received, the redemption shall
not be made and within a reasonable time thereafter notice shall be
given, in the manner in which the notice of redemption was given, that
such money was not so received and such redemption was not required to
be made, and the Paying Agent or Agents for the Securities otherwise
to have been redeemed shall promptly return to the Holders thereof any
30
of such Securities which had been surrendered for payment upon such
redemption.
Notice of redemption of Securities to be redeemed at the election of
the Company, and any notice of non-satisfaction of a condition for
redemption as aforesaid, shall be given by the Company or, at the
Company's request, by the Security Registrar in the name and at the
expense of the Company. Notice of 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.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security.
SECTION 406. SECURITIES REDEEMED IN PART.
Upon the surrender of any Security which is to be redeemed only in
part at a Place of Payment therefor (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in
writing), the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security, without
service charge, a new Security or Securities of the same series and
Tranche, of any authorized denomination requested by such Holder and
of like tenor and in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security
so surrendered.
31
ARTICLE FIVE
SINKING FUNDS
SECTION 501. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of the Securities of any series, or any Tranche
thereof, except as otherwise specified as contemplated by Section 301
for Securities of such series or Tranche.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series, or any Tranche thereof, is herein
referred to as a "mandatory sinking fund payment", and any payment in
excess of such minimum amount provided for by the terms of Securities
of any series, or any Tranche thereof, is herein referred to as an
"optional sinking fund payment". If provided for by the terms of
Securities of any series, or any Tranche thereof, the cash amount of
any sinking fund payment may be subject to reduction as provided in
Section 502. Each sinking fund payment shall be applied to the
redemption of Securities of the series or Tranche in respect of which
it was made as provided for by the terms of such Securities.
SECTION 502. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (a) may deliver to the Trustee Outstanding Securities
(other than any previously called for redemption) of a series or
Tranche in respect of which a mandatory sinking fund payment is to be
made and (b) may apply as a credit Securities of such series or
Tranche which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of such
mandatory sinking fund payment with respect to the Securities of such
series; provided, however, that no Securities shall be applied in
satisfaction of a mandatory sinking fund payment if such Securities
shall have been previously so applied. Securities so applied shall be
received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such mandatory sinking
fund payment shall be reduced accordingly.
SECTION 503. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days prior to each sinking fund payment date for the
Securities of any series, or any Tranche thereof, the Company shall
deliver to the Trustee an Officer's Certificate specifying:
(a) the amount of the next succeeding mandatory sinking fund payment
for such series or Tranche;
(b) the amount, if any, of the optional sinking fund payment to be
made together with such mandatory sinking fund payment;
32
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking fund payment which
is to be satisfied by the payment of cash; and
(e) the portion, if any, of such aggregate sinking fund payment which
is to be satisfied by delivering and crediting Securities of such
series or Tranche pursuant to Section 502 and stating the basis for
such credit and that such Securities have not previously been so
credited, and the Company shall also deliver to the Trustee any
Securities to be so delivered.
If the Company shall not have delivered such Officer's Certificate
and, to the extent applicable, all such Securities, on or prior to the
45th day prior to such sinking fund payment date, the sinking fund
payment for such series or Tranche in respect of such sinking fund
payment date shall be made entirely in cash in the amount of the
mandatory sinking fund payment. Not less than 30 days before each such
sinking fund payment date the Trustee shall select the Securities to
be redeemed upon such sinking fund payment date in the manner
specified in Section 403 and cause notice of the redemption thereof to
be given in the name of and at the expense of the Company in the
manner provided in Section 404. Such notice having been duly given,
the redemption of such Securities shall be made upon the terms and in
the manner stated in Sections 405 and 406.
The Trustee shall not redeem or cause to be redeemed any Security of a
series with sinking fund moneys or mail any notice of redemption of
Securities of such series by operation of the sinking fund during the
continuance of a default in payment of interest with respect to
Securities of that series or an Event of Default with respect to the
Securities of that series except that, where the mailing of notice of
redemption of any Securities shall theretofore have been made, the
Trustee shall redeem or cause to be redeemed such Securities, provided
that it shall have received from the Company a sum sufficient for such
redemption. Except as aforesaid, any moneys in the sinking fund for
such series at the time when any such default or Event of Default,
shall occur, and any moneys thereafter paid into the sinking fund,
shall, during the continuance of such default or Event of Default, be
deemed to have been collected under Article Five and held for the
payment of all such Securities. In case such Event of Default shall
have been waived as provided in Section 813 hereof or the default or
Event of Default cured on or before the 45th day preceding the sinking
fund payment date, such moneys shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this Section
503 to the redemption of such Securities.
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ARTICLE SIX
COVENANTS
SECTION 601. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company shall pay the principal of and premium, if any, and
interest, if any, on the Securities of each series in accordance with
the terms of such Securities and this Indenture.
SECTION 602. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of Payment for the Securities
of each series, or any Tranche thereof, an office or agency where
payment of such Securities shall be made, 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 603. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to the Securities of any series, or any Tranche thereof, it
shall, on or before each due date of the principal of and premium, if
any, and interest, if any, on any of such Securities, segregate and
hold in trust for the benefit of the Persons entitled thereto a sum
34
sufficient to pay the principal and premium or interest so becoming
due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided. The Company shall promptly notify the
Trustee of any failure by the Company (or any other obligor on such
Securities) to make any payment of principal of or premium, if any, or
interest, if any, on such Securities.
Whenever the Company shall have one or more Paying Agents for the
Securities of any series, or any Tranche thereof, it shall, on or
before each due date of the principal of and premium, if any, and
interest, if any, on such Securities, deposit with such Paying Agents
sums sufficient (without duplication) to pay the principal and premium
or interest so becoming due, such sums to be held in trust for the
benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the Company
shall promptly notify the Trustee of any failure by it so to act.
The Company shall cause each Paying Agent for the Securities of any
series, or any Tranche thereof, other than the Company or the Trustee,
to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent shall:
(a) hold all sums held by it for the payment of the principal of and
premium, if any, or interest, if any, on such Securities in trust for
the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any failure by the Company (or any
other obligor upon such Securities) to make any payment of principal
of or premium, if any, or interest, if any, on such Securities; and
(c) at any time during the continuance of any such failure, upon the
written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent and furnish to the Trustee such
information as it possesses regarding the names and addresses of the
Persons entitled to such sums.
The Company may at any time pay, or by Company Order direct any Paying
Agent to pay, to the Trustee all sums held in trust by the Company or
such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such
Paying Agent and, if so stated in a Company Order delivered to the
Trustee, in accordance with the provisions of Article Seven; and, upon
such payment by any Paying Agent to the Trustee, such Paying Agent
shall be released from all further liability with respect to such
money. The Company initially authorizes the Trustee to act as Paying
Agent for the Securities on its behalf. The Company may at any time
and from time to time authorize one or more Persons to act as Paying
Agent in addition to or in place of the Trustee with respect to any
series of Securities issued under this Indenture.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of and
premium, if any, or interest, if any, on any Security and remaining
unclaimed for two years after such principal and premium, if any, or
interest has become due and payable shall be paid to the Company on
Company Request, or, if then held by the Company, shall be discharged
35
from such trust; and, upon such payment or discharge, the Holder of
such Security shall, as an unsecured general creditor and not as a
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
30 days from the date of such mailing, any unclaimed balance of such
money then remaining will be paid to the Company.
SECTION 604. CORPORATE EXISTENCE.
Subject to the rights of the Company under Article Eleven, the Company
shall do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence.
SECTION 605. MAINTENANCE OF PROPERTIES.
The Company shall cause (or, with respect to property owned in common
with others, make reasonable effort to cause) all its properties used
or useful in the conduct of its business to be maintained and kept in
good condition, repair and working order and shall cause (or, with
respect to property owned in common with others, make reasonable
effort to cause) to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as, in the
judgment of the Company, may be necessary so that the business carried
on in connection therewith may be properly conducted; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing, or causing the discontinuance of, the operation and
maintenance of any of its properties if such discontinuance is, in the
judgment of the Company, desirable in the conduct of its business.
SECTION 606. ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
Not later than June 1 in each year, commencing June 1, 2000, the
Company shall deliver to the Trustee an Officer's Certificate which
need not comply with Section 102, 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 607. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in (a) Section 602 or any
additional covenant or restriction specified with respect to the
Securities of any series, or any Tranche thereof, as contemplated by
Section 301, if before the time for such compliance the Holders of a
majority in aggregate principal amount of the Outstanding Securities
of all series and Tranches with respect to which compliance with
Section 602 or such additional covenant or restriction is to be
omitted, considered as one class, shall, by Act of such Holders,
36
either waive such compliance in such instance or generally waive
compliance with such term, provision or condition and (b) Section 604,
605 or Article Eleven if before the time for such compliance the
Holders of a majority in principal amount of Securities Outstanding
under this Indenture shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such
term, provision or condition; but, in the case of (a) or (b), no such
waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the
Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
SECTION 608. LIMITATION ON LIENS.
(a) Except as otherwise specified as contemplated by Section 301 for
Securities of any series, so long as any Securities of any series are
Outstanding, the Company will not pledge, mortgage, hypothecate or
grant a security interest in, or permit any mortgage, pledge, security
interest or other lien upon, any capital stock of DP&L, to secure any
Indebtedness (hereinafter defined) without making effective provision
whereby the Outstanding Securities shall (so long as such other
Indebtedness shall be so secured) be equally and ratably secured with
any and all such other Indebtedness and any other indebtedness
similarly entitled to be equally and ratably secured; provided,
however, that this restriction shall not apply to nor prevent the
creation or existence of:
(1) any mortgage, pledge, security interest, lien or encumbrance upon
any such capital stock created at the time of the acquisition of such
capital stock by the Company or within one year after such time to
secure all or a portion of the purchase price for such capital stock;
(2) any mortgage, pledge, security interest, lien or encumbrance upon
any such capital stock existing thereon at the time of the acquisition
thereof by the Company (whether or not the obligations secured thereby
are assumed by the Company);
(3) any extension, renewal of refunding of any mortgage, pledge,
security interest, lien or encumbrance permitted by Subsection (1) or
(2) above on capital stock of DP&L theretofore subject thereto (or
substantially the same capital stock) or any portion thereof; or
(4) any judgment, levy, execution, attachment or other similar lien
arising in connection with court proceedings, provided that either
(i) the execution or enforcement of each such lien is effectively
stayed within 30 days after entry of the corresponding judgment
(or the corresponding judgment has been discharged within such 30
day period) and the claims secured thereby are being contested in
good faith by appropriate proceedings timely commenced and
diligently prosecuted;
(ii) the payment of each such lien is covered in full by
insurance and the insurance company has not denied or contested
coverage thereof; or
37
(iii) so long as each such lien is adequately bonded, any
appropriate legal proceedings that may have been duly initiated
for the review of the corresponding judgment, decree or order
shall not have been fully terminated or the period within which
such proceedings may be initiated shall not have expired.
For purposes of this Section 608, "Indebtedness" means all
indebtedness, whether or not represented by bonds, debentures, notes
or other securities, created or assumed by the Company for the
repayment of money borrowed. All indebtedness for money borrowed
secured by a lien upon property owned by the Company and upon which
indebtedness for money borrowed the Company customarily pays interest,
even though the Company has not assumed or become liable for the
payment of such indebtedness for money borrowed, shall for purposes of
this Section 608 be deemed to be Indebtedness of the Company. All
indebtedness of others for money borrowed which is guaranteed as to
payment of principal by the Company or in effect guaranteed by the
Company through a contingent agreement to purchase such indebtedness
shall for purposes of this Section 608 be deemed to be Indebtedness of
the Company, but no other contingent obligation of the Company in
respect of indebtedness for money borrowed or other obligations
incurred by others shall for purposes of this Section 608 be deemed to
be Indebtedness of the Company.
In case the Company shall propose to pledge, mortgage, hypothecate or
grant a security interest in any capital stock of DP&L owned by the
Company to secure any Indebtedness, other than as permitted by
Subsections (a)(1) to (a)(3), inclusive, of this Section, the Company
will prior thereto give written notice thereof to the Trustee, and the
Company will prior to or simultaneously with such pledge, mortgage,
hypothecation or grant of security interest, by supplemental indenture
executed to the Trustee (or to the extent legally necessary to another
trustee or an additional or separate trustee), in form satisfactory to
the Trustee, effectively secure (for so long as such other
Indebtedness shall be so secured) all the Securities equally and
ratably with such Indebtedness and with any other indebtedness for
money borrowed similarly entitled to be equally and ratably secured.
(b) Except as otherwise specified as contemplated by Section 301 for
Securities of any series, the provisions of Subsection (a) of this
Section 608 shall not apply in the event that the Company shall
pledge, mortgage, hypothecate or grant a security interest in or other
lien upon any capital stock of DP&L to secure any Indebtedness which
would otherwise be subject to the foregoing restriction up to an
aggregate amount which, together with all other Indebtedness (other
than mortgages, pledges, security interests, liens or encumbrances
permitted by Subsection (a) of this Section 608) which would otherwise
be subject to the foregoing restriction, does not at the time exceed
10% of Consolidated Capitalization.
For purposes of this Section 608:
(1) The term "Consolidated Capitalization" means the sum obtained by
adding (i) Consolidated Shareholders' Equity, (ii) Consolidated
Indebtedness for money borrowed (exclusive of any thereof which is due
and payable within one year of the date such sum is determined) and,
38
without duplication, (iii) any preference or preferred stock of the
Company or any Consolidated Subsidiary which is subject to mandatory
redemption or sinking fund provisions.
(2) The term "Consolidated Shareholders' Equity" means the total
Assets of the Company and its Consolidated Subsidiaries less all
liabilities of the Company and its Consolidated Subsidiaries. As used
in this definition, "liabilities" means all obligations which would,
in accordance with generally accepted accounting principles, be
classified on a balance sheet as liabilities, including without
limitation, (i) indebtedness secured by property of the Company or any
of its Consolidated Subsidiaries whether or not the Company or such
Consolidated Subsidiary is liable for the payment thereof unless, in
the case that the Company or such Consolidated Subsidiary is not so
liable, such property has not been included among the Assets of the
Company or such Consolidated Subsidiary on such balance sheet, (ii)
deferred liabilities, (iii) indebtedness of the Company or any of its
Consolidated Subsidiaries that is expressly subordinated in right and
priority of payment to other liabilities of the Company or such
Consolidated Subsidiary. As used in this definition, "liabilities"
includes preference or preferred stock of the Company or any
Consolidated Subsidiary only to the extent of any such preference or
preferred stock that is subject to mandatory redemption or sinking
fund provisions.
(3) The term "Consolidated Subsidiary" means at any date any
Subsidiary the financial statements of which under generally accepted
accounting principles in the United States would be consolidated with
those of the Company in its consolidated financial statements as of
such date.
(4) The "Assets" of any Person means the whole or any part of its
business, property, assets, cash and receivables.
(5) The term "Consolidated Indebtedness" means total indebtedness as
shown on the consolidated balance sheet of the Company and its
Consolidated Subsidiaries.
ARTICLE SEVEN
SATISFACTION AND DISCHARGE
SECTION 701. SATISFACTION AND DISCHARGE OF SECURITIES.
Any Security or Securities, or any portion of the principal amount
thereof, shall be deemed to have been paid for all purposes of this
Indenture, and the entire indebtedness of the Company in respect
thereof shall be deemed to have been satisfied and discharged, if
there shall have been irrevocably deposited with the Trustee or any
Paying Agent (other than the Company), in trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the Maturity of such
Securities or portions thereof, Eligible Obligations, which shall not
contain provisions permitting the redemption or other prepayment
39
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 on or prior
to Maturity; provided, however, that in the case of the provision for
payment or redemption of less than all the Securities of any series or
Tranche, such Securities or portions thereof shall have been selected
by the Trustee as provided herein and, in the case of a redemption,
the notice requisite to the validity of such redemption shall have
been given or irrevocable authority shall have been given by the
Company to the Trustee to give such notice, under arrangements
satisfactory to the Trustee; and provided, further, that the Company
shall have delivered to the Trustee and such Paying Agent:
(x) if such deposit shall have been made prior to the Maturity of such
Securities, a Company Order stating that the money and Eligible
Obligations deposited in accordance with this Section shall be held in
trust, as provided in Section 703; and
(y) if Eligible Obligations shall have been deposited, an Opinion of
Counsel that the obligations so deposited constitute Eligible
Obligations and do not contain provisions permitting the redemption or
other prepayment 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 requirements set forth
in clause (b) above have been satisfied; and
(z) if such deposit shall have been made prior to the Maturity of such
Securities, an Officer's Certificate stating the Company's intention
that, upon delivery of such Officer's Certificate, its indebtedness in
respect of such Securities or portions thereof will have been
satisfied and discharged as contemplated in this Section.
Upon the deposit of money or Eligible Obligations, or both, in
accordance with this Section, together with the documents required by
clauses (x), (y) and (z) above, the Trustee shall, upon receipt of a
Company Request, acknowledge in writing that the Security or
Securities or portions thereof with respect to which such deposit was
made are deemed to have been paid for all purposes of this Indenture
and that the entire indebtedness of the Company in respect thereof has
been satisfied and discharged as contemplated in this Section. In the
event that all of the conditions set forth in the preceding paragraph
shall have been satisfied in respect of any Securities or portions
thereof except that, for any reason, the Officer's Certificate
specified in clause (z) shall not have been delivered, such Securities
or portions thereof shall nevertheless be deemed to have been paid for
all purposes of this Indenture, and the Holders of such Securities or
portions thereof shall nevertheless be no longer entitled to the
benefits of this Indenture or of any of the covenants of the Company
under Article Six (except the covenants contained in Sections 602 and
603) or any other covenants made in respect of such Securities or
portions thereof as contemplated by Section 301, but the indebtedness
of the Company in respect of such Securities or portions thereof shall
not be deemed to have been satisfied and discharged prior to Maturity
for any other purpose, and the Holders of such Securities or portions
40
thereof shall continue to be entitled to look to the Company for
payment of the indebtedness represented thereby; and, upon Company
Request, the Trustee shall acknowledge in writing that such Securities
or portions thereof are deemed to have been paid for all purposes of
this Indenture.
If payment at Stated Maturity of less than all of the Securities of
any series, or any Tranche thereof, is to be provided for in the
manner and with the effect provided in this Section, the 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 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, 503 (as to notice of redemption), 602, 603, 907
and 915 and this Article Seven 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 or
discharged, pursuant to this Section (without regard to the provisions
of this paragraph), the Trustee or any Paying Agent, as the case may
be, 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, such Security shall thereupon be
deemed retroactively not to have been paid and any satisfaction and
discharge of the Company's indebtedness in respect thereof shall
retroactively be deemed not to have been effected, and such Security
shall be deemed to remain Outstanding and (b) any satisfaction and
discharge of the Company's indebtedness in respect of any Security
shall be subject to the provisions of the last paragraph of Section
603.
41
SECTION 702. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further
effect (except as hereinafter expressly provided), and the Trustee, at
the expense of the Company, shall execute proper instruments
acknowledging 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 701, any Security, previously deemed to have been paid for
purposes of this Indenture, shall be deemed retroactively not to have
been so paid, this Indenture shall thereupon be deemed retroactively
not to have been satisfied and discharged, as aforesaid, and to remain
in full force and effect, and the Company shall execute and deliver
such instruments as the Trustee shall reasonably request to evidence
and acknowledge the same.
Notwithstanding the satisfaction and discharge of this Indenture as
aforesaid, the obligations of the Company and the Trustee under
Sections 304, 305, 306, 404, 503 (as to notice of redemption), 602,
603, 907 and 915 and this Article Seven shall survive.
Upon satisfaction and discharge of this Indenture as provided in this
Section, the Trustee shall assign, transfer and turn over to the
Company, subject to the lien provided by Section 907, any and all
money, securities and other property then held by the Trustee for the
benefit of the Holders of the Securities other than money and Eligible
Obligations held by the Trustee pursuant to Section 703.
SECTION 703. APPLICATION OF TRUST MONEY.
Neither the Eligible Obligations nor the money deposited pursuant to
Section 701, nor the principal or interest payments on any such
Eligible Obligations, shall be withdrawn or used for any purpose other
than, and shall be held in trust for, the payment of the principal of
and premium, if any, and interest, if any, on the Securities or
portions of principal amount thereof in respect of which such deposit
was made, all subject, however, to the provisions of Section 603;
provided, however, that, so long as there shall not have occurred and
be continuing an Event of Default, any cash received from such
principal or interest payments on such Eligible Obligations, if not
then needed for such purpose, shall, to the extent practicable and
upon Company Request, be invested in Eligible Obligations of the type
described in clause (b) in the first paragraph of Section 701 maturing
at such times and in such amounts as shall be sufficient, together
with any other moneys and the principal of and interest on any other
Eligible Obligations then held by the Trustee, to pay when due the
principal of and premium, if any, and interest, if any, due and to
become due on such Securities or portions thereof on and prior to the
Maturity thereof, and interest earned from such reinvestment shall be
paid over to the Company as received, free and clear of any trust,
lien or pledge under this Indenture except the lien provided by
Section 907; and provided, further, that, so long as there shall not
42
have occurred and be continuing an Event of Default, any moneys held
in accordance with this Section on the Maturity of all such Securities
in excess of the amount required to pay the principal of and premium,
if any, and interest, if any, then due on such Securities shall be
paid over to the Company free and clear of any trust, lien or pledge
under this Indenture except the lien provided by Section 907; and
provided, further, that if an Event of Default shall have occurred and
be continuing, moneys to be paid over to the Company pursuant to this
Section shall be held until such Event of Default shall have been
waived or cured.
ARTICLE EIGHT
EVENTS OF DEFAULT; REMEDIES
SECTION 801. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events:
(a) failure to pay interest, if any, on any Security of such series
within 30 days after the same becomes due and payable; or
(b) failure to pay the principal of or premium, if any, on any
Security of such series at its Maturity; or
(c) default in the payment of any sinking fund installment, when and
as due by the terms of a Security of that series;
(d) failure to perform or breach of any covenant or warranty of the
Company in this Indenture (other than a covenant or warranty a default
in the performance of which or breach of which is elsewhere in this
Section specifically dealt with or which has expressly been included
in this Indenture solely for the benefit of one or more series of
Securities other than such series) for a period of 60 days after there
has been given, by registered or certified mail, to the Company by the
Trustee, or to the Company and the Trustee by the Holders of at least
33% in principal amount of the Outstanding Securities of such series,
a written notice specifying such default or breach and requiring it to
be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(e) the entry by a court having jurisdiction in the premises of (1) a
decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or (2) a decree or
order adjudging the Company 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
43
any such other decree or order shall have remained unstayed and in
effect for a period of 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; or
(g) any other Event of Default specified with respect to Securities of
such series.
SECTION 802. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default due to the default in payment of principal of,
or premium, if any, or interest on, or payment of any sinking fund
installment with respect to any series of Securities or due to the
default in the performance or breach of any other covenant or warranty
of the Company applicable to the Securities of such series but not
applicable to all Outstanding Securities shall have occurred and be
continuing, either the Trustee or the Holders of not less than 33% in
principal amount of the Securities of such series may then declare the
principal amount (or, if any of the Securities of such series are
Discount Securities, such portion of the principal amount as may be
specified in the terms thereof as contemplated by Section 301) of all
Securities of such series and interest accrued thereon to be due and
payable immediately. If an Event of Default due to default in the
performance of any other of the covenants or agreements herein
applicable to all Outstanding Securities (other than an Event of
Default specified in Section 801(e) or (f)) shall have occurred and be
continuing, either the Trustee or the Holders of not less than 33% in
principal amount of all Securities then Outstanding (considered as one
class), and not the Holders of the Securities of any one of such
series, may declare the principal of all Securities and interest
accrued thereon to be due and payable immediately. If an Event of
Default specified in Section 801(e) or (f) shall have occurred, then
and in every such case, the principal amount (or, if any Securities
are Discount Securities, such portion of the principal amount as may
be specified in the terms thereof) of all the Securities shall,
without any notice to the Company or any other act on the part of the
Trustee or any Holder of the Securities, become and be immediately due
and payable.
As a consequence of each such declaration (herein referred to as a
declaration of acceleration) with respect to Securities of any series,
the principal amount (or portion thereof in the case of Discount
Securities) of such Securities, premium, if any, and interest accrued
thereon shall become due and payable immediately.
44
At any time after such a declaration of acceleration with respect to
Securities of any series shall have been made and before a judgment or
decree for payment of the money due shall have been obtained by the
Trustee as hereinafter in this Article provided, the Event or Events
of Default giving rise to such declaration of acceleration shall,
without further act, be deemed to have been waived, and such
declaration and its consequences shall, without further act, be deemed
to have been rescinded and annulled, if
(a) the Company shall have paid or deposited with the Trustee a sum
sufficient to pay
(1) all overdue interest on all Securities of such series;
(2) the principal of and premium, if any, on any Securities of
such series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or
rates prescribed therefor in such Securities;
(3) to the extent that payment of such interest is lawful,
interest upon overdue interest, if any, at the rate or rates
prescribed therefor in such Securities;
(4) all amounts due to the Trustee under Section 907;
and
(b) any other Event or Events of Default with respect to Securities of
such series, other than the nonpayment of the principal of and accrued
interest on Securities of such series which shall have become due
solely by such declaration of acceleration, shall have been cured or
waived as provided in Section 813.
No such rescission shall affect any subsequent Event of Default or
impair any right consequent thereon.
SECTION 803. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
If an Event of Default described in clause (a) or (b) of Section 801
shall have occurred and be continuing, the Company shall, upon demand
of the Trustee, pay to it, for the benefit of the Holders of the
Securities of the series with respect to which such Event of Default
shall have occurred, the whole amount then due and payable on such
Securities for principal and premium, if any, and interest, if any,
and, to the extent permitted by law, interest on any overdue principal
and interest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as shall be
sufficient to cover any amounts due to the Trustee under Section 907.
If the Company shall fail to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of the
sums so due and unpaid, may prosecute such proceeding to judgment or
final decree and may enforce the same against the Company or any other
obligor upon such Securities and collect the moneys adjudged or
decreed to be payable in the manner provided by law out of the
45
property of the Company or any other obligor upon such Securities,
wherever situated.
If an Event of Default with respect to Securities of any series shall
have occurred and be continuing, the Trustee may in its discretion
proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of
any power granted herein, or to enforce any other proper remedy.
SECTION 804. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor
upon the Securities or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the
principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand on the Company for the payment
of overdue principal or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise, (a) to file and prove a
claim for the whole amount of principal, premium, if any, and
interest, if any, owing and unpaid in respect of the Securities and to
file such other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for
amounts due to the Trustee under Section 907) and of the Holders
allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding
is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any
amounts due it under Section 907.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any
plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in
any such proceeding.
SECTION 805. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
46
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the
Holders in respect of which such judgment has been recovered.
SECTION 806. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of
principal or premium, if any, or interest, if any, upon presentation
of the Securities in respect of which or for the benefit of which such
money shall have been collected and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully
paid:
FIRST: To the payment of all amounts due the Trustee under Section
907;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities for principal of and premium, if any, and interest, if any,
in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal, premium, if any, and interest, if any, respectively; and
THIRD: To the payment of the remainder, if any, to the Company or to
whomsoever may be lawfully entitled to receive the same or as a court
of competent jurisdiction may direct.
SECTION 807. LIMITATION ON SUITS.
No Holder shall have any right to institute any proceeding, judicial
or otherwise, with respect to this Indenture, or for the appointment
of a receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder shall have previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of such series;
(b) the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series in respect of which an Event of
Default shall have occurred and be continuing, considered as one
class, shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(c) such Holder or Holders shall have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity shall have failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request shall have
been given to the Trustee during such 60-day period by the Holders of
a majority in aggregate principal amount of the Outstanding Securities
of all series in respect of which an Event of Default shall have
occurred and be continuing, considered as one class;
47
it being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other of such Holders or to obtain or to
seek to obtain priority or preference over any other of such Holders
or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 808. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and premium, if
any, and (subject to Section 307) 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 809. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding shall
have been discontinued or abandoned for any reason, or shall have been
determined adversely to the Trustee or to such Holder, then and in
every such case, subject to any determination in such proceeding, the
Company, and 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 810. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided in the last paragraph of Section 306, no
right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 811. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to exercise any
right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient,
by the Trustee or by the Holders, as the case may be.
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SECTION 812. CONTROL BY HOLDERS OF SECURITIES.
If an Event of Default shall have occurred and be continuing in
respect of a series of Securities, the Holders of a majority in
principal amount of the Outstanding Securities of such series shall
have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred on the Trustee, with respect to the
Securities of such series; provided, however, that if an Event of
Default shall have occurred and be continuing with respect to more
than one series of Securities, the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all such series,
considered as one class, shall have the right to make such direction,
and not the Holders of the Securities of any one of such series; and
provided, further, that such direction shall not be in conflict with
any rule of law or with this Indenture. The Trustee may take any other
action, deemed proper by the Trustee, which is not inconsistent with
any such direction, provided that the Trustee shall have determined
that such action would not be unduly prejudicial to Holders not taking
part in such action. Before proceeding to exercise any right or power
hereunder at the direction of such Holders, the Trustee shall be
entitled to receive from such Holders reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by
it in compliance with any such direction.
SECTION 813. WAIVER OF PAST DEFAULTS.
The Holders of a majority in principal amount of the Outstanding
Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with
respect to such series and its consequences, except a default
(a) in the payment of the principal of or premium, if any, or
interest, if any, on any Security of such series, or
(b) in respect of a covenant or provision hereof which under Section
1202 cannot be modified or amended without the consent of the Holder
of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any and
all Events of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other default or impair any right
consequent thereon.
SECTION 814. UNDERTAKING FOR COSTS.
The Company and the Trustee agree, and each Holder by his acceptance
thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by
any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith
of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by
49
the Company, to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the
aggregate more than 10% in aggregate principal amount of the
Outstanding Securities of all series in respect of which such suit may
be brought, considered as one class, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of or
premium, if any, or interest, if any, on any Security on or after the
Stated Maturity or Maturities expressed in such Security (or, in the
case of redemption, on or after the Redemption Date).
SECTION 815. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the performance of this Indenture;
and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been
enacted.
ARTICLE NINE
THE TRUSTEE
SECTION 901. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The Trustee shall have and be subject to all the duties and
responsibilities specified with respect to an indenture trustee in the
Trust Indenture Act and no implied covenants or obligations shall be
read into this Indenture against the Trustee. For purposes of Sections
315(a) and 315(c) of the Trust Indenture Act, the term "default" is
hereby defined as an Event of Default which has occurred and is
continuing.
(b) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of
any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(c) Notwithstanding anything contained in this Indenture to the
contrary, the duties and responsibilities of the Trustee under this
Indenture shall be subject to the protections, exculpations and
limitations on liability afforded to the Trustee under the provisions
of the Trust Indenture Act, including those provisions of such Act
deemed by such Act to be included herein.
(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.
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SECTION 902. NOTICE OF DEFAULTS.
The Trustee shall give notice of any default hereunder with respect to
the Securities of any series to the Holders of Securities of such
series in the manner and to the extent required to do so by the Trust
Indenture Act, unless such default shall have been cured or waived;
provided, however, that in the case of any default of the character
specified in Section 801(d), no such notice to Holders shall be given
until at least 30 days after the occurrence thereof. For the purpose
of this Section, the term "default" means any event which is, or after
notice or lapse of time, or both, would become, an Event of Default.
SECTION 903. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 901 and to the applicable
provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting in good faith 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 reasonably believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order, or as
otherwise expressly provided herein, and any resolution of the Board
of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any Holder pursuant to this Indenture, unless such Holder
shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall (subject to applicable legal
51
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 default or
Event of Default, as the case may be, with respect to the Securities
of any series for which it is acting as Trustee unless either (1) a
Responsible Officer of the Trustee shall have actual knowledge of the
default or Event of Default, as the case may be, or (2) written notice
of such default or Event of Default, as the case may be, shall have
been given to the Trustee by the Company, any other obligor on such
Securities or by any Holder of such Securities.
SECTION 904. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities (except the
Trustee's certificates of authentication) shall be taken as the
statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of
this Indenture or of the Securities. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application
by the Company of Securities or the proceeds thereof.
SECTION 905. MAY HOLD SECURITIES.
Each of the Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 908 and 913, may otherwise deal
with the Company with the same rights it would have if it were not the
Trustee, Authenticating Agent, Paying Agent, Security Registrar or
such other agent.
SECTION 906. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds, except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it
hereunder except as expressly provided herein or otherwise agreed with
the Company.
SECTION 907. 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);
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(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 costs of
collection (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except to the extent that
any such expense, disbursement or advance may be attributable to the
Trustee's negligence, willful misconduct or bad faith; and
(c) indemnify the Trustee for, and hold it harmless from and against,
any and all loss, demands, claims, liability, causes of action or
expense (including reasonable attorneys' fees and expenses) 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, demand, claim, liability, cause of
action or expense may be attributable to its negligence, willful
misconduct or bad faith. At the option of the Trustee, the Company
shall assume the defense of the Trustee with counsel acceptable to the
Trustee.
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 703 (except as otherwise provided in Section 703). "Trustee"
for purposes of this Section shall include any predecessor Trustee;
provided, however, that the negligence, willful misconduct or bad
faith of any Trustee hereunder shall not affect the rights of any
other Trustee hereunder.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 801(d) or Section
801(e), the expenses (including the reasonable charges and expenses of
its counsel) and the compensation for the services are intended to
constitute expenses of administration under any applicable Federal or
State bankruptcy, insolvency or other similar law.
The provisions of this Section 907 shall survive termination of this
Indenture and the resignation or removal of the Trustee.
SECTION 908. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee shall have or acquire any conflicting interest within
the meaning of the Trust Indenture Act, it shall either eliminate such
conflicting interest or resign to the extent, in the manner and with
the effect, and subject to the conditions, provided in the Trust
Indenture Act and this Indenture. To the extent permitted by such Act,
the Trustee shall not be deemed to have a conflicting interest by
virtue of being a trustee under this Indenture with respect to
Securities of more than one series.
SECTION 909. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be
53
(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 $50,000,000
and subject to supervision or examination by Federal or State
authority, or
(b) if and to the extent permitted by the Commission by rule,
regulation or order upon application, a corporation or other Person
organized and doing business under the laws of a foreign government,
authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least $50,000,000 or the Dollar
equivalent of the applicable foreign currency and subject to
supervision or examination by authority of such foreign government or
a political subdivision thereof substantially equivalent to
supervision or examination applicable to United States institutional
trustees,
and, in either case, qualified and eligible under this Article and the
Trust Indenture Act. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of
such supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 910. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 911. (b) The
Trustee may resign at any time with respect to the Securities of one
or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section
911 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 908 after
written request therefor by the Company or by any Holder who has
been a bona fide Holder for at least six months, or
54
(2) the Trustee shall cease to be eligible under Section 909 and
shall fail to resign after written request therefor by the
Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or
of its property shall be appointed or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (x) the Company by a Board Resolution may
remove the Trustee with respect to all Securities or (y) subject
to Section 814, any Holder who has been a bona fide Holder for at
least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any
cause (other than as contemplated in clause (y) in Subsection (d) of
this Section), with respect to the Securities of one or more series,
the Company, by a Company Order, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of that or those
series (it being understood that any such successor Trustee may be
appointed with respect to the Securities of one or more or all of such
series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply
with the applicable requirements of Section 911. If, within one year
after such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee with respect to the Securities of
any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section
911, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company
or the Holders and accepted appointment in the manner required by
Section 911, any Holder who has been a bona fide Holder of a Security
of such series for at least six months may, on behalf of itself and
all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(f) So long as no event which is, or after notice or lapse of time, or
both, would become, an Event of Default shall have occurred and be
continuing, and except with respect to a Trustee appointed by Act of
the Holders of a majority in principal amount of the Outstanding
Securities pursuant to Subsection (e) of this Section, if the Company
shall have delivered to the Trustee (i) a Company Order appointing a
successor Trustee, effective as of a date specified therein, and (ii)
an instrument of acceptance of such appointment, effective as of such
date, by such successor Trustee in accordance with Section 911, the
Trustee shall be deemed to have resigned as contemplated in Subsection
55
(b) of this Section, the successor Trustee shall be deemed to have
been appointed by the Company pursuant to Subsection (e) of this
Section and such appointment shall be deemed to have been accepted as
contemplated in Section 911, all as of such date, and all other
provisions of this Section and Section 911 shall be applicable to such
resignation, appointment and acceptance except to the extent
inconsistent with this Subsection (f).
(g) The Company (or, should the Company fail so to act promptly, the
successor trustee at the expense of the Company) shall give notice of
each resignation and each removal of the Trustee with respect to the
Securities of any series and each appointment of a successor Trustee
with respect to the Securities of any series by mailing written notice
of such event by first-class mail, postage prepaid, to all Holders of
Securities of such series as their names and addresses appear in the
Security Register. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address
of its corporate trust office.
SECTION 911. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of all series, every such successor Trustee
so appointed shall execute, acknowledge and deliver to the Company and
to the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall
become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon
payment of all sums owed to it, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect
to the Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with respect to
all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of
that or those series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee and (3) shall add
to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such
Trustees co-trustees of the same trust and that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such
56
Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates;
but, on request of the Company or any successor Trustee, such retiring
Trustee, upon payment of all sums owed to it, shall duly assign,
transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder with respect to the Securities
of that or those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any instruments which fully vest in and confirm to such
successor Trustee all such rights, powers and trusts referred to in
Subsection (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 912. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from
any merger, conversion or consolidation to which the Trustee shall be
a party, or any corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the
parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by
merger, conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so authenticated
with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 913. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If the Trustee shall be or become a creditor of the Company or any
other obligor upon the Securities (other than by reason of a
relationship described in Section 311(b) of the Trust Indenture Act),
the Trustee shall be subject to any and all applicable provisions of
the Trust Indenture Act regarding the collection of claims against the
Company or such other obligor. For purposes of Section 311(b) of the
Trust Indenture Act:
(a) the term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand;
(b) the term "self-liquidating paper" means any draft, xxxx of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
57
processing, manufacturing, shipment, storage or sale of goods, wares
or merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the creation
of the creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, xxxx of exchange,
acceptance or obligation.
SECTION 914. CO-TRUSTEES AND SEPARATE TRUSTEES.
At any time or times, for the purpose of meeting the legal
requirements of any applicable jurisdiction, the Company and the
Trustee shall have power to appoint, and, upon the written request of
the Trustee or of the Holders of at least 33% in principal amount of
the Securities then Outstanding, the Company shall for such purpose
join with the Trustee in the execution and delivery of all instruments
and agreements necessary or proper to appoint, one or more Persons
approved by the Trustee either to act as co-trustee, jointly with the
Trustee, or to act as separate trustee, in either case with such
powers as may be provided in the instrument of appointment, and to
vest in such Person or Persons, in the capacity aforesaid, any
property, title, right or power deemed necessary or desirable, subject
to the other provisions of this Section. If the Company does not join
in such appointment within 15 days after the receipt by it of a
request so to do, or if an Event of Default shall have occurred and be
continuing, the Trustee alone shall have power to make such
appointment.
Should any written instrument or instruments from the Company be
required by any co-trustee or separate trustee so appointed to more
fully confirm to such co-trustee or separate trustee such property,
title, right or power, any and all such instruments shall, on request,
be executed, acknowledged and delivered by the Company.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following
conditions:
(a) the Securities shall be authenticated and delivered, and all
rights, powers, duties and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, the Trustee hereunder, shall
be exercised solely, by the Trustee;
(b) the rights, powers, duties and obligations hereby conferred or
imposed upon the Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or
performed either by the Trustee or by the Trustee and such co-trustee
or separate trustee jointly, as shall be provided in the instrument
appointing such co-trustee or separate trustee, except to the extent
that under any law of any jurisdiction in which any particular act is
to be performed, the Trustee shall be incompetent or unqualified to
perform such act, in which event such rights, powers, duties and
obligations shall be exercised and performed by such co-trustee or
separate trustee;
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(c) the Trustee at any time, by an instrument in writing executed by
it, with the concurrence of the Company, may accept the resignation of
or remove any co-trustee or separate trustee appointed under this
Section, and, if an Event of Default shall have occurred and be
continuing, the Trustee shall have power to accept the resignation of,
or remove, any such co-trustee or separate trustee without the
concurrence of the Company. Upon the written request of the Trustee,
the Company shall join with the Trustee in the execution and delivery
of all instruments and agreements necessary or proper to effectuate
such resignation or removal. A successor to any co-trustee or separate
trustee so resigned or removed may be appointed in the manner provided
in this Section;
(d) no co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Trustee, or any other
such trustee hereunder; and
(e) any Act of Holders delivered to the Trustee shall be deemed to
have been delivered to each such co-trustee and separate trustee.
SECTION 915. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may, with the consent of the Company, appoint an
Authenticating Agent or Agents with respect to the Securities of one
or more series, or 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 and upon 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, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not
less than $50,000,000 and subject to supervision or examination by
Federal or State authority. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with
the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding
to the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating Agent,
provided such corporation shall be otherwise eligible under this
Section, without the execution or filing of any paper or any further
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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, 904 and 905 shall be applicable to
each Authenticating Agent.
If an appointment with respect to the Securities of one or more series
shall be made pursuant to this Section, the Securities of such series
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.
Dated:
---------------------------------------
As Trustee
By
-------------------------------------
As Authenticating Agent
By
-------------------------------------
As Authenticating Agent
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
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an office in a Place of Payment designated by the Company with respect
to such series of Securities.
ARTICLE TEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 1001. LISTS OF HOLDERS.
Semiannually, not later than June 1 and December 1 in each year,
commencing December 1, 2000, and at such other times as the Trustee
may request in writing, the Company shall furnish or cause to be
furnished to the Trustee information as to the names and addresses of
the Holders, and the Trustee shall preserve such information and
similar information received by it in any other capacity and afford to
the Holders access to information so preserved by it, all to such
extent, if any, and in such manner as shall be required by the Trust
Indenture Act; provided, however, that no such list need be furnished
so long as the Trustee shall be the Security Registrar.
SECTION 1002. REPORTS BY TRUSTEE AND COMPANY.
Within 60 days after May 15 of each year, commencing with May 15,
2000, the Trustee shall transmit to the Holders, the Commission and
each securities exchange upon which any Securities are listed, a
report, dated as of May 15, with respect to any events and other
matters described in Section 313(a) of the Trust Indenture Act, in
such manner and to the extent required by the Trust Indenture Act. The
Trustee shall transmit to the Holders, the Commission and each
securities exchange upon which any Securities are listed, and the
Company shall file with the Trustee (within 30 days after filing with
the Commission in the case of reports which pursuant to the Trust
Indenture Act must be filed with the Commission and furnished to the
Trustee) and transmit to the Holders, such other information, reports
and other documents, if any, at such times and in such manner, as
shall be required by the Trust Indenture Act. The Company shall notify
the Trustee of the listing of any Securities on any securities
exchange. Delivery of such reports, information and documents by the
Company to the Trustee is for informational purposes only and the
Trustee's receipt of such shall not constitute constructive notice of
any information contained therein or determinable from information
contained therein, including the Company's compliance with any of its
covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officer's Certificates).
ARTICLE ELEVEN
CONSOLIDATION, MERGER, CONVEYANCE OR OTHER TRANSFER
SECTION 1101. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other
corporation, or convey or otherwise transfer or lease its properties
and assets substantially as an entirety to any Person, unless
61
(a) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a Person organized and validly
existing under the laws of the United States, any State thereof or the
District of Columbia, and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the
principal of and premium, if any, and interest, if any, on all
Outstanding Securities and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(b) immediately after giving effect to such transaction no Event of
Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have occurred and be
continuing; and
(c) the Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, or other transfer or lease and such
supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transactions
have been complied with.
SECTION 1102. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation by the Company with or merger by the Company
into any other corporation or any conveyance, or other transfer or
lease of the properties and assets of the Company substantially as an
entirety in accordance with Section 1101, the successor corporation
formed by such consolidation or into which the Company is merged or
the Person to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if
such successor Person had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor Person
shall be relieved of all obligations and covenants under this
Indenture and the Securities Outstanding hereunder.
ARTICLE TWELVE
SUPPLEMENTAL INDENTURES
SECTION 1201. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company and the Trustee, at
any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(a) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company
herein and in the Securities, all as provided in Article Eleven; or
(b) to add one or more covenants of the Company or other provisions
for the benefit of 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
62
Tranches thereof, or to surrender any right or power herein conferred
upon the Company; or
(c) to add any additional Events of Default with respect to all or any
series of Securities Outstanding hereunder; or
(d) to change or eliminate any provision of this Indenture or to add
any new provision to this Indenture; provided, however, that if such
change, elimination or addition shall adversely affect the interests
of the Holders of Securities of any series or Tranche Outstanding on
the date of such indenture supplemental hereto in any material
respect, such change, elimination or addition shall become effective
with respect to such series or Tranche only pursuant to the provisions
of Section 1202 hereof or when no Security of such series or Tranche
remains Outstanding; or
(e) to provide collateral security for all but not part of the
Securities; or
(f) to establish the form or terms of Securities of any series or
Tranche as contemplated by Sections 201 and 301; or
(g) to provide for the authentication and delivery of bearer
securities and coupons appertaining thereto representing interest, if
any, thereon and for the procedures for the registration, exchange and
replacement thereof and for the giving of notice to, and the
solicitation of the vote or consent of, the holders thereof, and for
any and all other matters incidental thereto; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a separate or successor Trustee or co-trustee with
respect to the Securities of one or more series and to add to or
change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of
Section 911(b); or
(i) to provide for the procedures required to permit the Company to
utilize, at its option, a noncertificated system of registration for
all, or any series or Tranche of, the Securities; or
(j) to change any place or places where (1) the principal of and
premium, if any, and interest, if any, on all or any series of
Securities, or any Tranche thereof, shall be payable, (2) all or any
series of Securities, or any Tranche thereof, may be surrendered for
registration of transfer, (3) all or any series of Securities, or any
Tranche thereof, may be surrendered for exchange and (4) notices and
demands to or upon the Company in respect of all or any series of
Securities, or any Tranche thereof, and this Indenture may be served;
(k) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other changes to the provisions hereof or to
add other provisions with respect to matters or questions arising
under this Indenture, provided that such other changes or additions
shall not adversely affect the interests of the Holders of Securities
of any series or Tranche in any material respect; or
63
(l) to effect or maintain the qualification of this Indenture under
the Trust Indenture Act.
SECTION 1202. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
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, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any
provisions to, or changing in any manner or eliminating any of the
provisions of, this Indenture or modifying in any manner the rights of
the Holders of Securities of such series under the 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, or reduce the principal
amount thereof or the rate of interest thereon (or the amount of any
installment of interest thereon) or change the method of calculating
such rate or reduce any premium payable upon the redemption thereof,
or reduce the amount of the principal of a Discount Security that
would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 802, or change the coin or
currency (or other property), in which any Security or any premium or
the interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated
Maturity of any Security (or, in the case of redemption, on or after
the Redemption Date), without, in any such case, the consent of the
Holder of such Security, or
(b) reduce the percentage in principal amount of the Outstanding
Securities of any series, or any Tranche thereof, the consent of the
Holders of which is required for any such supplemental indenture, or
the consent of the Holders of which is required for any waiver of
compliance with any provision of this Indenture or of any default
hereunder and its consequences, or reduce the requirements of Section
1304 for quorum or voting, without, in any such case, the consent of
the Holders of each Outstanding Security of such series or Tranche, or
(c) modify any of the provisions of this Section, Section 607 or
Section 813 with respect to the Securities of any series, or any
Tranche thereof, except to increase the percentages in principal
amount referred to in this Section or such other Sections or to
provide that other provisions of this Indenture cannot be modified or
64
waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant changes in this
Section, or the deletion of this proviso, in accordance with the
requirements of Sections 911(b), 914 and 1201(h).
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities,
or one or more Tranches thereof, or which modifies the rights of the
Holders of Securities of such series 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. A waiver by a Holder of such Holder's right to consent under
this Section shall be deemed to be a consent of such Holder.
SECTION 1203. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 901) shall be fully
protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by
this Indenture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee's own
rights, duties, immunities or liabilities under this Indenture or
otherwise.
SECTION 1204. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby. Any
supplemental indenture permitted by this Article may restate this
Indenture in its entirety, and, upon the execution and delivery
thereof, any such restatement shall supersede this Indenture as
theretofore in effect for all purposes.
SECTION 1205. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in
effect.
SECTION 1206. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series, or any Tranche thereof, authenticated and
delivered after the execution of any supplemental indenture pursuant
to this Article may, and shall if required by the Trustee, bear a
65
notation in form approved by the Trustee as to any matter provided for
in such supplemental indenture. If the Company shall so determine, new
Securities of any series, or any Tranche thereof, so modified as to
conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series or Tranche.
SECTION 1207. MODIFICATION WITHOUT SUPPLEMENTAL INDENTURE.
If the terms of any particular series of Securities shall have been
established in a Board Resolution or an Officer's Certificate as
contemplated by Section 301, and not in an indenture supplemental
hereto, additions to, changes in or the elimination of any of such
terms may be effected by means of a supplemental Board Resolution or
Officer's Certificate, as the case may be, delivered to, and accepted
by, the Trustee; provided, however, that such supplemental Board
Resolution or Officer's Certificate shall not be accepted by the
Trustee or otherwise be effective unless all conditions set forth in
this Indenture which would be required to be satisfied if such
additions, changes or elimination were contained in a supplemental
indenture shall have been appropriately satisfied. Upon the acceptance
thereof by the Trustee, any such supplemental Board Resolution or
Officer's Certificate shall be deemed to be a "supplemental indenture"
for purposes of Section 1204 and 1206.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of one or more, or all, series, or
any Tranche or Tranches thereof, may be called at any time and from
time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be made, given or taken by
Holders of Securities of such series or Tranches.
SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Securities of one or more, or all, series, or any Tranche or Tranches
thereof, for any purpose specified in Section 1301, to be held at such
time and at such place in the Borough of Manhattan, The City of New
York, as the Trustee shall determine, or, with the approval of the
Company, at any other place. Notice of every such meeting, setting
forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 106, not less than 21 nor more than 180
days prior to the date fixed for the meeting.
(b) If the Trustee shall have been requested to call a meeting of the
Holders of Securities of one or more, or all, series, or any Tranche
or Tranches thereof, by the Company or by the Holders of 33% in
aggregate principal amount of all of such series and Tranches,
66
considered as one class, for any purpose specified in Section 1301, by
written request setting forth in reasonable detail the action proposed
to be taken at the meeting, and the Trustee shall not have given the
notice of such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of such
series and Tranches in the amount above specified, as the case may be,
may determine the time and the place in the Borough of Manhattan, The
City of New York, or in such other place as shall be determined or
approved by the Company, for such meeting and may call such meeting
for such purposes by giving notice thereof as provided in Subsection
(a) of this Section.
(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 1303. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities of one
or more, or all, series, or any Tranche or Tranches thereof, a Person
shall be (a) a Holder of one or more Outstanding Securities of such
series or Tranches, or (b) a Person appointed by an instrument in
writing as proxy for a Holder or Holders of one or more Outstanding
Securities of such series or Tranches by such Holder or Holders. The
only Persons who shall be entitled to attend any meeting of Holders of
Securities of any series or Tranche shall be the Persons entitled to
vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its
counsel.
SECTION 1304. QUORUM; ACTION.
The Persons entitled to vote a majority in aggregate principal amount
of the Outstanding Securities of the series and Tranches with respect
to which a meeting shall have been called as hereinbefore provided,
considered as one class, shall constitute a quorum for a meeting of
Holders of Securities of such series and Tranches; provided, however,
that if any action is to be taken at such meeting which this Indenture
expressly provides may be taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of the
Outstanding Securities of such series and Tranches, considered as one
class, the Persons entitled to vote such specified percentage in
principal amount of the Outstanding Securities of such series and
Tranches, considered as one class, shall constitute a quorum. In the
absence of a quorum within one hour of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of
Securities of such series and Tranches, be dissolved. In any other
case the meeting may be adjourned for such period as may be determined
by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting,
such adjourned meeting may be further adjourned for such period as may
be determined by the chairman of the meeting prior to the adjournment
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of such adjourned meeting. Except as provided by Section 1305(e),
notice of the reconvening of any meeting adjourned for more than 30
days shall be given as provided in Section 1302(a) not less than 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 1202, any resolution presented to a
meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of
the Holders of a majority in aggregate principal amount of the
Outstanding Securities of the series and Tranches with respect to
which such meeting shall have been called, considered as one class;
provided, however, that, except as so limited, any resolution with
respect to any action which this Indenture expressly provides may be
taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of such
series and Tranches, considered as one class, may be adopted at a
meeting or an adjourned meeting duly reconvened and at which a quorum
is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities
of such series and Tranches, considered as one class.
Any resolution passed or decision taken at any meeting of Holders of
Securities duly held in accordance with this Section shall be binding
on all the Holders of Securities of the series and Tranches with
respect to which such meeting shall have been held, whether or not
present or represented at the meeting.
SECTION 1305. ATTENDANCE AT MEETINGS; DETERMINATION OF VOTING
RIGHTS;CONDUCT AND ADJOURNMENT OF MEETINGS.
(a) Attendance at meetings of Holders of Securities may be in person
or by proxy; and, to the extent permitted by law, any such proxy shall
remain in effect and be binding upon any future Holder of the
Securities with respect to which it was given unless and until
specifically revoked by the Holder or future Holder of such Securities
before being voted.
(b) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable
for any meeting of Holders of Securities in regard to proof of the
holding of such Securities and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence
of the right to vote, and such other matters concerning the conduct of
the meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of
Securities shall be proved in the manner specified in Section 104 and
the appointment of any proxy shall be proved in the manner specified
in Section 104. Such regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed valid and
genuine without the proof specified in Section 104 or other proof.
(c) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders as provided in Section 1302(b), in
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which case the Company or the Holders of Securities of the series and
Tranches calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons
entitled to vote a majority in aggregate principal amount of the
Outstanding Securities of all series and Tranches represented at the
meeting, considered as one class.
(d) At any meeting each Holder or proxy shall be entitled to one vote
for each $1 principal amount of Securities held or represented by him;
provided, however, that no vote shall be cast or counted at any
meeting in respect of any Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote, except as a
Holder of a Security or proxy.
(e) Any meeting duly called pursuant to Section 1302 at which a quorum
is present may be adjourned from time to time by Persons entitled to
vote a majority in aggregate principal amount of the Outstanding
Securities of all series and Tranches represented at the meeting,
considered as one class; and the meeting may be held as so adjourned
without further notice.
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders shall
be by written ballots on which shall be subscribed the signatures of
the Holders or of their representatives by proxy and the principal
amounts and serial numbers of the Outstanding Securities, of the
series and Tranches with respect to which the meeting shall have been
called, held or represented by them. The permanent chairman of the
meeting shall appoint two inspectors of votes who shall count all
votes cast at the meeting for or against any resolution and who shall
make and file with the secretary of the meeting their verified written
reports of all votes cast at the meeting. A record of the proceedings
of each meeting of Holders shall be prepared by the secretary of the
meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more persons having knowledge of the facts
setting forth a copy of the notice of the meeting and showing that
said notice was given as provided in Section 1302 and, if applicable,
Section 1304. Each copy shall be signed and verified by the affidavits
of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to
be preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting. Any record so signed and verified shall
be conclusive evidence of the matters therein stated.
SECTION 1307. ACTION WITHOUT MEETING.
In lieu of a vote of Holders at a meeting as hereinbefore contemplated
in this Article, any request, demand, authorization, direction,
notice, consent, waiver or other action may be made, given or taken by
Holders by written instruments as provided in Section 104.
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ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS
SECTION 1401. LIABILITY SOLELY CORPORATE.
No recourse shall be had for the payment of the principal of or
premium, if any, or interest, if any, on any Securities, or any part
thereof, or for any claim based thereon or otherwise in respect
thereof, or of the indebtedness represented thereby, or upon any
obligation, covenant or agreement under this Indenture, against any
incorporator, shareholder, 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, shareholder, 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 that any such personal liability is hereby expressly
waived and released as a condition of, and as part of the
consideration for, the execution of this Indenture and the issuance of
the Securities.
-------------------------
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the day and year first above written.
DPL INC.
By: /s/ X. X. Xxxxxx
------------------------------------
X.X. Xxxxxx
Group Vice President and Secretary
BANK ONE TRUST COMPANY,
NATIONAL ASSOCIATION, Trustee
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
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