__________________________________________
DELMARVA POWER & LIGHT COMPANY
TO
WILMINGTON TRUST COMPANY
TRUSTEE
_________
INDENTURE
(FOR UNSECURED SUBORDINATED DEBT SECURITIES
RELATING TO TRUST SECURITIES)
DATED AS OF OCTOBER 1, 1996
__________________________________________
TABLE OF CONTENTS
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITAL OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
Definitions and Other Provisions of General Application . . . . . . . . 1
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Additional Interest . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . 2
Authorized Officer . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Company Request" or "Company Order" . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . 3
corporation . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . 3
"Dollar" or "$" . . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . 3
Governmental Authority . . . . . . . . . . . . . . . . . . . 3
Government Obligations . . . . . . . . . . . . . . . . . . . 3
Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Officer's Certificate . . . . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . 4
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . 4
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . 5
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Place of Payment . . . . . . . . . . . . . . . . . . . . . . 5
Predecessor Security . . . . . . . . . . . . . . . . . . . . 5
Preferred Securities . . . . . . . . . . . . . . . . . . . . 6
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Price . . . . . . . . . . . . . . . . . . . . . . 6
Regular Record Date . . . . . . . . . . . . . . . . . . . . . 6
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE
PART OF THE INDENTURE.
Responsible Officer . . . . . . . . . . . . . . . . . . . . . 6
Securities . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Security Register" and "Security Registrar" . . . . . . . . 6
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . 6
Special Record Date . . . . . . . . . . . . . . . . . . . . . 6
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . 6
Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trust Agreement . . . . . . . . . . . . . . . . . . . . . . . 7
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
United States . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 102. Compliance Certificates and Opinions . . . . . . . . 7
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . 8
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . . 9
SECTION 105. Notices, etc. to Trustee and Company . . . . . . . . 10
SECTION 106. Notice to Holders of Securities; Waiver . . . . . . 11
SECTION 107. Conflict with Trust Indenture Act . . . . . . . . . 12
SECTION 108. Effect of Headings and Table of Contents . . . . . . 12
SECTION 109. Successors and Assigns . . . . . . . . . . . . . . . 12
SECTION 110. Separability Clause . . . . . . . . . . . . . . . . 12
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . . . 12
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . 12
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . . . . 13
ARTICLE TWO
Security Forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . 13
SECTION 202. Form of Trustee's Certificate of Authentication . . 14
ARTICLE THREE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
The Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . 14
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . 17
SECTION 303. Execution, Authentication, Delivery and Dating . . . 18
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . 19
SECTION 305. Registration, Registration of Transfer and Exchange 20
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . 21
SECTION 307. Payment of Interest; Interest Rights Preserved . . . 22
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . 23
SECTION 309. Cancellation by Security Registrar . . . . . . . . . 23
SECTION 310. Computation of Interest . . . . . . . . . . . . . . 24
SECTION 311. Extension of Interest Payment . . . . . . . . . . . 24
SECTION 312. Additional Interest. . . . . . . . . . . . . . . . . 24
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE
PART OF THE INDENTURE.
ARTICLE FOUR
Redemption of Securities . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 401. Applicability of Article . . . . . . . . . . . . . . 25
SECTION 402. Election to Redeem; Notice to Trustee . . . . . . . 25
SECTION 403. Selection of Securities to Be Redeemed . . . . . . . 25
SECTION 404. Notice of Redemption . . . . . . . . . . . . . . . . 26
SECTION 405. Securities Payable on Redemption Date . . . . . . . 27
SECTION 406. Securities Redeemed in Part . . . . . . . . . . . . 27
ARTICLE FIVE
Sinking Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 501. Applicability of Article . . . . . . . . . . . . . . 28
SECTION 502. Satisfaction of Sinking Fund Payments with Securities 28
SECTION 503. Redemption of Securities for Sinking Fund . . . . . 28
ARTICLE SIX
Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 601. Payment of Principal, Premium and Interest . . . . . 29
SECTION 602. Maintenance of Office or Agency . . . . . . . . . . 29
SECTION 603. Money for Securities Payments to Be Held in Trust . 30
SECTION 604. Corporate Existence . . . . . . . . . . . . . . . . 31
SECTION 605. Maintenance of Properties . . . . . . . . . . . . . 31
SECTION 606. Annual Officer's Certificate as to Compliance. . . . 32
SECTION 607. Waiver of Certain Covenants . . . . . . . . . . . . 32
SECTION 608. Restriction on Payment of Dividends . . . . . . . . 32
SECTION 609. Maintenance of Trust Existence . . . . . . . . . . . 33
ARTICLE SEVEN
Satisfaction and Discharge . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 701. Defeasance . . . . . . . . . . . . . . . . . . . . . 33
SECTION 702. Satisfaction and Discharge of Indenture . . . . . . 36
SECTION 703. Application of Trust Money . . . . . . . . . . . . . 36
ARTICLE EIGHT
Events of Default; Remedies . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 801. Events of Default . . . . . . . . . . . . . . . . . 37
SECTION 802. Acceleration of Maturity; Rescission and Annulment . 38
SECTION 803. Collection of Indebtedness and Suits for Enforcement
by Trustee . . . . . . . . . . . . . . . . . . . . . 40
SECTION 804. Trustee May File Proofs of Claim . . . . . . . . . . 40
SECTION 805. Trustee May Enforce Claims Without Possession of
Securities . . . . . . . . . . . . . . . . . . . . . 41
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE
PART OF THE INDENTURE.
SECTION 806. Application of Money Collected . . . . . . . . . . . 41
SECTION 807. Limitation on Suits . . . . . . . . . . . . . . . . 42
SECTION 808. Unconditional Right of Holders to Receive Principal,
Premium and Interest . . . . . . . . . . . . . . . 43
SECTION 809. Restoration of Rights and Remedies . . . . . . . . . 43
SECTION 810. Rights and Remedies Cumulative . . . . . . . . . . . 43
SECTION 811. Delay or Omission Not Waiver . . . . . . . . . . . . 43
SECTION 812. Control by Holders of Securities . . . . . . . . . . 44
SECTION 813. Waiver of Past Defaults . . . . . . . . . . . . . . 44
SECTION 814. Undertaking for Costs . . . . . . . . . . . . . . . 44
SECTION 815. Waiver of Stay or Extension Laws . . . . . . . . . . 45
ARTICLE NINE
The Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 901. Certain Duties and Responsibilities . . . . . . . . 45
SECTION 902. Notice of Defaults . . . . . . . . . . . . . . . . . 46
SECTION 903. Certain Rights of Trustee . . . . . . . . . . . . . 47
SECTION 904. Not Responsible for Recitals or Issuance of . . . .
Securities. . . . . . . . . . . . . . . . . . . . . 48
SECTION 905. May Hold Securities . . . . . . . . . . . . . . . . 48
SECTION 906. Money Held in Trust . . . . . . . . . . . . . . . . 48
SECTION 907. Compensation and Reimbursement . . . . . . . . . . . 48
SECTION 908. Disqualification; Conflicting Interests. . . . . . . 49
SECTION 909. Corporate Trustee Required; Eligibility . . . . . . 50
SECTION 910. Resignation and Removal; Appointment of Successor . 50
SECTION 911. Acceptance of Appointment by Successor . . . . . . . 52
SECTION 912. Merger, Conversion, Consolidation or Succession to .
Business . . . . . . . . . . . . . . . . . . . . . 53
SECTION 913. Preferential Collection of Claims Against Company . 54
SECTION 914. Co-trustees and Separate Trustees. . . . . . . . . . 54
SECTION 915. Appointment of Authenticating Agent . . . . . . . . 55
ARTICLE TEN
Holders' Lists and Reports by Trustee and Company . . . . . . . . . . . 57
SECTION 1001. Lists of Holders . . . . . . . . . . . . . . . . . 57
SECTION 1002. Reports by Trustee . . . . . . . . . . . . . . . . 58
SECTION 1003. Reports to the Trustee . . . . . . . . . . . . . . 58
ARTICLE ELEVEN
Consolidation, Merger, Conveyance or Other Transfer . . . . . . . . . 58
SECTION 1101. Company May Consolidate, etc., Only on Certain Terms
58
SECTION 1102. Successor Corporation Substituted . . . . . . . . . 59
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE
PART OF THE INDENTURE.
ARTICLE TWELVE
Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 1201. Supplemental Indentures Without Consent of Holders 59
SECTION 1202. Supplemental Indentures With Consent of Holders . . 61
SECTION 1203. Execution of Supplemental Indentures . . . . . . . 62
SECTION 1204. Effect of Supplemental Indentures . . . . . . . . . 63
SECTION 1205. Conformity With Trust Indenture Act . . . . . . . . 63
SECTION 1206. Reference in Securities to Supplemental Indentures 63
SECTION 1207. Modification Without Supplemental Indenture . . . . 63
ARTICLE THIRTEEN
Meetings of Holders; Action Without Meeting . . . . . . . . . . . . . . 64
SECTION 1301. Purposes for Which Meetings May Be Called . . . . . 64
SECTION 1302. Call, Notice and Place of Meetings . . . . . . . . 64
SECTION 1303. Persons Entitled to Vote at Meetings . . . . . . . 65
SECTION 1304. Quorum; Action . . . . . . . . . . . . . . . . . . 65
SECTION 1305. Attendance at Meetings; Determination of Voting Rights;
Conduct and Adjournment of Meetings . . . . . . . . 66
SECTION 1306. Counting Votes and Recording Action of Meetings . . 67
SECTION 1307. Action Without Meeting . . . . . . . . . . . . . . 67
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders, Officers and Directors . . . . 67
SECTION 1401. Liability Solely Corporate . . . . . . . . . . . . 67
ARTICLE FIFTEEN
Subordination of Securities . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1501. Securities Subordinate to Senior Indebtedness. . . 68
SECTION 1502. Payment Over of Proceeds of Securities . . . . . . 68
SECTION 1503. Disputes with Holders of Certain Senior . . . . . .
Indebtedness . . . . . . . . . . . . . . . . . . . 70
SECTION 1504. Subrogation . . . . . . . . . . . . . . . . . . . . 71
SECTION 1505. Obligation of the Company Unconditional . . . . . . 71
SECTION 1506. Priority of Senior Indebtedness Upon Maturity . . . 71
SECTION 1507. Trustee as Holder of Senior Indebtedness . . . . . 72
SECTION 1508. Notice to Trustee to Effectuate Subordination . . . 72
SECTION 1509. Modification, Extension, etc. of Senior Indebtedness 72
SECTION 1510. Trustee Has No Fiduciary Duty to Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . . . . 73
SECTION 1511. Paying Agents Other Than the Trustee . . . . . . . 73
SECTION 1512. Rights of Holders of Senior Indebtedness Not
Impaired . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 1513. Effect of Subordination Provisions; Termination . . 73
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE
PART OF THE INDENTURE.
< Page>
Testimonium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Signatures and Seals . . . . . . . . . . . . . . . . . . . . . . . . . 74
Acknowledgements . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE
PART OF THE INDENTURE.
DELMARVA POWER & LIGHT COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF OCTOBER 1, 1996
TRUST INDENTURE ACT SECTION INDENTURE SECTION
SECTION 310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . 909
(a)(2) . . . . . . . . . . . . . . . . . . . . . . 909
(a)(3) . . . . . . . . . . . . . . . . . . . . . . 914
(a)(4) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . 908
910
SECTION 311 (a) . . . . . . . . . . . . . . . . . . . . . . . 913
(b) . . . . . . . . . . . . . . . . . . . . . . . 913
(c) . . . . . . . . . . . . . . . . . . . . . . . 913
SECTION 312 (a) . . . . . . . . . . . . . . . . . . . . . . . 1001
(b) . . . . . . . . . . . . . . . . . . . . . . . 1001
(c) . . . . . . . . . . . . . . . . . . . . . . . 1001
SECTION 313 (a) . . . . . . . . . . . . . . . . . . . . . . . 1002
(b) . . . . . . . . . . . . . . . . . . . . . . . 1002
(c) . . . . . . . . . . . . . . . . . . . . . . . 1002
SECTION 314 (a) . . . . . . . . . . . . . . . . . . . . . . . 1003
(a)(4) . . . . . . . . . . . . . . . . . . . . . . 606
(b) . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . 102
SECTION 315 (a) . . . . . . . . . . . . . . . . . . . . . . . 901
903
(b) . . . . . . . . . . . . . . . . . . . . . . . 902
(c) . . . . . . . . . . . . . . . . . . . . . . . 901
(d) . . . . . . . . . . . . . . . . . . . . . . . 901
(e) . . . . . . . . . . . . . . . . . . . . . . . 814
SECTION 316 (a) . . . . . . . . . . . . . . . . . . . . . . . 812
813
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . 802
812
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . 813
(a)(2) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . 808
SECTION 317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . 803
(a)(2) . . . . . . . . . . . . . . . . . . . . . . 804
(b) . . . . . . . . . . . . . . . . . . . . . . . 603
SECTION 318 (a) . . . . . . . . . . . . . . . . . . . . . . . 107
INDENTURE, dated as of October 1, 1996, between DELMARVA POWER &
LIGHT COMPANY, a corporation duly organized and existing under the laws of
the States of Delaware and Virginia (herein called the "Company"), having
its principal office at 000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, and
WILMINGTON TRUST COMPANY, a corporation of the State of Delaware, having
its principal corporate trust office at Xxxxxx Square North, 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, 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 subordinated 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 account-
ing principles applicable to the Company, the Company shall, to the
extent required, conform to any order, rule or 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, are defined
in that Article.
"ACT", when used with respect to any Holder of a Security, has
the meaning specified in Section 104.
"ADDITIONAL INTEREST" has the meaning specified in Section
312.
"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.
"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.
"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.
"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.
"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 de-
livered to the Trustee.
"CORPORATE TRUST OFFICE" means the office of the Trustee at
which at any particular time its corporate trust business shall be
principally administered, which office at the date of execution and
delivery of this Indenture is located at Xxxxxx Square North, 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust
Office.
"CORPORATION" means a corporation, association, company, joint
stock company or business trust.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DOLLAR" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time shall be legal
tender for the payment of public and private debts.
"EVENT OF DEFAULT" has the meaning specified in Section 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.
"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.
"GUARANTEE" means the guarantee agreement delivered
from the Company to a Trust, for the benefit of the
holders of Preferred Securities issued by such Trust.
"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.
"MATURITY", when used with respect to any Security,
means the date on which the principal of such Security or
an installment of principal becomes due and payable as
provided in such Security or in this Indenture, whether at
the Stated Maturity, by declaration of acceleration, upon
call for redemption or otherwise.
"OFFICER'S CERTIFICATE" means a certificate signed by
an Authorized Officer and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of
counsel, who may be counsel for the Company, or other
counsel acceptable to the Trustee.
"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 by the
Trustee or delivered to the Trustee for cancellation;
(b) Securities deemed to have been paid in
accordance with Section 701; and
(c) Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of which
other Securities have been authenticated and
delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to
it and the Company that such Securities are held by a
bona fide purchaser or purchasers in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether or not the
Holders of the requisite principal amount of the
Securities Outstanding under this Indenture, or the
Outstanding Securities of any series, 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, 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, as the case may be, determined without regard to
this provision) 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 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.
"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, 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 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.
"PREFERRED SECURITIES" means any preferred trust
interests issued by a Trust or similar securities issued
by permitted successors to such Trust in accordance with
the Trust Agreement pertaining to such Trust.
"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.
"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.
"SENIOR INDEBTEDNESS" means all obligations (other
than non-recourse obligations and the indebtedness issued
under this Indenture) of, or guaranteed or assumed by, the
Company for borrowed money, including both senior and
subordinated indebtedness for borrowed money (other than
the Securities), or for the payment of money relating to
any lease which is capitalized on the consolidated balance
sheet of the Company and its subsidiaries in accordance
with generally accepted accounting principles as in effect
from time to time, or evidenced by bonds, debentures,
notes or other similar instruments, and in each case,
amendments, renewals, extensions, modifications and
refundings of any such indebtedness or obligations,
whether existing as of the date of this Indenture or
subsequently incurred by the Company unless, in the case
of any particular indebtedness, renewal, extension or
refunding, the instrument creating or evidencing the same
or the assumption or guarantee of the same expressly
provides that such indebtedness, renewal, extension or
refunding is not superior in right of payment to or is
pari passu with the Securities; provided that the
Company's obligations under the Guarantee shall not be
deemed to be Senior Indebtedness.
"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 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).
"TRUST" means Delmarva Power Financing I, a statutory
business trust created under the laws of the State of
Delaware, or any other Trust designated pursuant to
Section 301 hereof or any permitted successor under the
Trust Agreement pertaining to such Trust.
"TRUST AGREEMENT" means the Amended and Restated
Trust Agreement, dated as of October 1, 1996, relating to
Delmarva Power Financing I or an Amended and Restated
Trust Agreement relating to a Trust designated pursuant to
Section 301 hereof, in each case, among the Company, as
Depositor, the trustees named therein and several holders
referred to therein as they may be amended from time to
time.
"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, if requested by
the Trustee, 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:
(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 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 and serial numbers of Securities
held by any Person, and the date of holding the same, shall be
proved by the Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act of a Holder shall bind every
future Holder of the same Security and the Holder of every Security
issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such
Security.
(e) Until such time as written instruments shall have been
delivered to the Trustee with respect to the requisite percentage
of principal amount of Securities for the action contemplated by
such instruments, any such instrument executed and delivered by or
on behalf of a Holder may be revoked with respect to any or all of
such Securities by written notice by such Holder or any subsequent
Holder, proven in the manner in which such instrument was proven.
(f) Securities of any series 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 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.
(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:
Wilmington Trust Company
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Company, to:
Delmarva Power & Light Company
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Treasurer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Any communication contemplated herein shall be deemed to have
been made, given, furnished and filed if personally delivered, on the date
of delivery, if transmitted by facsimile transmission or other direct
written electronic means, on the date of transmission, and if transmitted
by 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 shall constitute a sufficient notification for
every purpose hereunder. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders.
Any notice required by this Indenture may be waived in writing
by the Person entitled to receive such notice, either before or after the
event otherwise to be specified therein, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision of this Indenture limits, qualifies or
conflicts with another provision hereof which is required or deemed to be
included in this Indenture by, or is otherwise governed by, any 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, the Holders and, so long as the notice described in
Section 1513 hereof has not been given, the holders of Senior Indebtedness,
any benefit or any legal or equitable right, remedy or claim under this
Indenture; provided, however, that if the Property Trustee fails to enforce
its rights with respect to the Securities or the related Trust Agreement, a
holder of Preferred Securities may institute a legal proceeding directly
against the Company to enforce the Property Trustee's rights with respect
to the Securities or such Trust Agreement, to the fullest extent permitted
by law, without first instituting any legal proceeding against the Property
Trustee or any other person or entity.
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 conflict of laws principles, except to the extent that the law of
any other jurisdiction shall be mandatorily applicable.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Security shall not be a Business Day at any Place
of Payment, then (notwithstanding any other provision of this Indenture or
of the Securities other than a provision in Securities of any series, or in
the Board Resolution or Officer's Certificate which establishes the terms
of the Securities of such series, 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, except that if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case 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 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 Section 301, the
Securities of each series shall be issuable in registered form without
coupons. The definitive Securities shall be produced in such manner as
shall be determined by the officers executing such Securities, as evidenced
by their execution thereof.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in
substantially the form set forth below:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
_________________________________
as Trustee
By: _____________________________
Authorized Signatory
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited; provided,
however, that all Securities shall be issued to a Trust in exchange for
securities of the Company or to evidence loans by a Trust of the proceeds
of the issuance of Preferred Securities of such Trust plus the amount
deposited by the Company with such Trust from time to time.
The Securities may be issued in one or more series. 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 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 is payable or any formulary or other
method or other means by which such date or dates shall be
determined, by reference 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
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 or otherwise; the date or dates from which
such interest shall accrue; the Interest Payment Dates on which
such interest shall be payable and the Regular Record Date, if any,
for the interest payable on such Securities on any Interest Payment
Date; the right of the Company, if any, to extend the interest
payment periods and the duration of any such extension as
contemplated by Section 311; and the basis of computation of
interest, if other than as provided in Section 310;
(f) the place or places at which or methods by which (i) the
principal of and premium, if any, and interest, if any, on
Securities of such series shall be payable, (ii) registration of
transfer of Securities of such series may be effected, (iii)
exchanges of Securities of such series may be effected and (iv)
notices and demands to or upon the Company in respect of the
Securities of such series and this Indenture may be served; the
Security Registrar for such series; 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 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,
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 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
shall be issuable if other than denominations of $25 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 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 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 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 may be determined with reference to an index or other fact
or event ascertainable outside this Indenture, the manner in which
such amounts shall be determined to the extent not established
pursuant to clause (e) of this paragraph;
(n) if other than the principal amount thereof, the portion
of the principal amount of Securities of such series 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, in addition to those set forth in
Article Six;
(p) the terms, if any, pursuant to which the Securities of
such series 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 Government Obligations in respect of the
Securities of such series 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 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 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 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 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;
(v) the designation of the Trust to which Securities of such
series are to be issued; and
(w) any other terms of the Securities of such series not
inconsistent with the provisions of this Indenture.
All Securities of any one series shall be substantially
identical, except as to principal amount and date of issue and except as
may be set forth in the terms of such series as contemplated above. The
Securities of each series shall be subordinated in right of payment to
Senior Indebtedness as provided in Article Fifteen.
SECTION 302. DENOMINATIONS.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, the Securities of each series shall be
issuable in denominations of $25 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, 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 Secu-
rities 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 original issue of such Securities.
The Trustee shall authenticate and deliver Securities of a
series, for original issue, at one time or from time to time in accordance
with the Company Order referred to below, upon receipt by the Trustee of:
(a) the instrument or instruments establishing the form or
forms and terms of such series, as provided in Sections 201 and
301;
(b) a Company Order requesting the authentication and
delivery of such Securities and, to the extent that the terms of
such Securities shall not have been established in an 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,
establishing such terms;
(c) the Securities of such series, executed on behalf of the
Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect that:
(i) the form or forms of such Securities have been duly
authorized by the Company and have been established in
conformity with the provisions of this Indenture;
(ii) the terms of such Securities have been duly
authorized by the Company and have been established in
conformity with the provisions of this Indenture; and
(iii) 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).
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 that is not reasonably acceptable to the
Trustee.
Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, 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 sub-
stantially 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, 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; provided, however, that temporary Securities need not
recite specific redemption, sinking fund, conversion or exchange
provisions.
Unless otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, after the preparation of defini-
tive Securities of such series, the temporary Securities of such series
shall be exchangeable, without charge to the Holder thereof, for definitive
Securities of such series 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, of authorized denominations and
of like tenor and aggregate principal amount.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of the same series
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 provide
for the registration of Securities of such series and the registration of
transfer thereof. The Company shall designate one Person to maintain the
Security Register for the Securities of each series on a consolidated
basis, and such Person is referred to herein, with respect to such series,
as the "Security Registrar." Anything herein to the contrary
notwithstanding, the Company may designate one or more of its offices as an
office in which a register with respect to the Securities of one or more
series shall be maintained, and the Company may designate itself the
Security Registrar with respect to one or more of such series. The
Security Register shall be open for inspection by the Trustee and the
Company at all reasonable times.
Except as otherwise specified as contemplated by Section 301
with respect to the Securities of any series, upon surrender for
registration of transfer of any Security of such series at the office or
agency of the Company maintained pursuant to Section 602 in a Place of
Payment for such series, 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, 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, any Security of such series
may be exchanged at the option of the Holder, for one or more new
Securities of the same series, 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, 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 during a period of 15 days immediately preceding the date of the
mailing of any notice of redemption of such Securities called for
redemption or (b) any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in ex-
change therefor a new Security of the same series, 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 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, 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.
Subject to Section 311, 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 pro-
posed 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 pay-
ment 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 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 SECURITY REGISTRAR.
All Securities surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to any Person
other than the Security Registrar, be delivered to the Security Registrar
and, if not theretofore canceled, shall be promptly canceled by the
Security Registrar. The Company may at any time deliver to the Security
Registrar for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever or which the Company shall not have issued and sold, and all
Securities so delivered shall be promptly canceled by the Security
Registrar. No Securities shall be authenticated in lieu of or in exchange
for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Securities held by the
Security Registrar shall be disposed of in accordance with a Company Order
delivered to the Security Registrar and the Trustee, and the Security
Registrar shall promptly deliver a certificate of disposition to the
Trustee and the Company unless, by a Company Order, similarly delivered,
the Company shall direct that canceled Securities be returned to it. The
Security Registrar shall promptly deliver evidence of any cancellation of a
Security in accordance with this Section 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, 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. EXTENSION OF INTEREST PAYMENT.
The Company shall have the right at any time, so long as the
Company is not in default in the payment of interest on the Securities of
any series hereunder, to extend interest payment periods on all Securities
of one or more series, if so specified as contemplated by Section 301 with
respect to such Securities and upon such terms as may be specified as
contemplated by Section 301 with respect to such Securities.
SECTION 312. ADDITIONAL INTEREST.
So long as any Preferred Securities remain outstanding, if the
Trust which issued such Preferred Securities shall be required to pay, with
respect to its income derived from the interest payments on the Securities
of any series, any amounts for or on account of any taxes, duties,
assessments or governmental charges of whatever nature imposed by the
United States, or any other taxing authority, then, in any such case, the
Company will pay as interest on such series such additional interest
("Additional Interest") as may be necessary in order that the net amounts
received and retained by such Trust after the payment of such taxes,
duties, assessments or governmental charges shall result in such Trust's
having such funds as it would have had in the absence of the payment of
such taxes, duties, assessments or governmental charges.
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 401. APPLICABILITY OF ARTICLE.
Securities of any series 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) 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 are to be
redeemed, the particular Securities to be redeemed shall be selected by the
Trustee from the Outstanding Securities of such series 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 any integral multiple
thereof) of the principal amount of Securities of such series of a
denomination larger than the minimum authorized denomination for Securities
of such series; 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, 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 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,
(c) if less than all the Securities of any series are to be
redeemed, the identification of the particular Securities to be
redeemed and the portion of the principal amount of any Security to
be redeemed in part,
(d) that on the Redemption Date the Redemption Price,
together with accrued interest, if any, to the Redemption Date,
will become due and payable upon each such Security to be redeemed
and, if applicable, that interest thereon will cease to accrue on
and after said date,
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and accrued
interest, if any, unless it shall have been specified as
contemplated by Section 301 with respect to such Securities that
such surrender shall not be required,
(f) that the redemption is for a sinking or other fund, if
such is the case, and
(g) such other matters as the Company shall deem desirable or
appropriate.
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 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.
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, of any authorized denomination requested by
such Holder and of like tenor and in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security
so surrendered.
ARTICLE FIVE
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, except as
otherwise specified as contemplated by Section 301 for Securities of such
series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series 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 is herein referred to
as an "optional sinking fund payment." If provided for by the terms of
Securities of any series, 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 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 in
respect of which a mandatory sinking fund payment is to be made and (b) may
apply as a credit Securities of such series 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 or Outstanding Securities
purchased by the Company, 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, 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;
(b) the amount, if any, of the optional sinking fund payment
to be made together with such mandatory sinking fund payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking fund
payment which is to be satisfied by the payment of cash;
(e) the portion, if any, of such aggregate sinking fund
payment which is to be satisfied by delivering and crediting
Securities of such series 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
deliver such Officer's Certificate, the next succeeding sinking
fund payment for such series 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.
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 (including Additional Interest), 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 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 loca-
tion, 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 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, 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, 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, it shall, on or before each
due date of the principal of and premium, if any, and interest, if any, on
any of such Securities, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal and premium
or interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided. The Company shall promptly
notify the Trustee of any failure by the Company (or any other obligor on
such Securities) to make any payment of principal of or premium, if any, or
interest, if any, on such Securities.
Whenever the Company shall have one or more Paying Agents for
the Securities of any series, 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 sum 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, 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 default,
upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent and furnish
to the Trustee such information as it possesses regarding the names
and addresses of the Persons entitled to such sums.
The Company may at any time pay, or by Company Order direct
any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent and, if so stated in a Company Order delivered to the Trustee,
in accordance with the provisions of Article Seven; and, upon such payment
by any Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of and
premium, if any, or interest, if any, on any Security and remaining
unclaimed for two years after such principal and premium, if any, or
interest has become due and payable shall be paid to the Company on Company
Request, or, if then held by the Company, shall be discharged from such
trust; and, upon such payment or discharge, the Holder of such Security
shall, as an unsecured general creditor and not as 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 September 15 in each year, commencing September
15, 1997, the Company shall deliver to the Trustee an Officer's Certificate
which need not comply with Section 102, executed by the principal executive
officer, the principal financial officer or the principal accounting
officer of the Company, as to such officer's knowledge of the Company's
compliance with all conditions and covenants under this Indenture, such
compliance to be determined without regard to any period of grace or
requirement of notice under this Indenture.
SECTION 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, as contemplated by Section 301, if before the time for such
compliance the Holders of at least a majority in aggregate principal amount
of the Outstanding Securities of all series 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,
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 at least 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;
provided, however, that so long as a Trust holds Securities of any series,
such Trust may not waive compliance or waive any default in compliance by
the Company with any covenant or other term contained in this Indenture or
the Securities of such series without the approval of the holders of at
least a majority in aggregate liquidation preference of the outstanding
Preferred Securities issued by such Trust affected, obtained as provided in
the Trust Agreement pertaining to such Trust.
SECTION 608. RESTRICTION ON PAYMENT OF DIVIDENDS.
So long as any Preferred Securities of any series remain
outstanding, the Company shall not declare or pay any dividend on, or
redeem, purchase, acquire or make a liquidation payment with respect to,
any of the Company's capital stock, or make any guarantee payments with
respect to the foregoing (other than payments under the Guarantee relating
to such Preferred Securities) if at such time (a) the Company shall be in
default with respect to its payment or other obligations under the
Guarantee relating to such Preferred Securities, (b) there shall have
occurred and be continuing a payment default (whether before or after
expiration of any period of grace) or an Event of Default hereunder or
(c) the Company shall have elected to extend any interest payment period as
provided in Section 311, and any such period, or any extension thereof,
shall be continuing.
SECTION 609. MAINTENANCE OF TRUST EXISTENCE.
So long as Preferred Securities of any series remain
outstanding, the Company shall (i) maintain direct or indirect ownership of
all interests in the Trust which issued such Preferred Securities, other
than such Preferred Securities, (ii) not voluntarily (to the extent
permitted by law) dissolve, liquidate or wind up such Trust, except in
connection with a distribution of the Securities to the holders of the
Preferred Securities in liquidation of such Trust, (iii) remain the sole
Depositor under the Trust Agreement (the "Depositor") of such Trust and
timely perform in all material respects all of its duties as Depositor of
such Trust, and (iv) use reasonable efforts to cause such Trust to remain a
business trust and otherwise continue to be treated as a grantor trust for
Federal income tax purposes provided that any permitted successor to the
Company under this Indenture may succeed to the Company's duties as
Depositor of such Trust; and provided further that the Company may permit
such Trust to consolidate or merge with or into another business trust or
other permitted successor under the Trust Agreement pertaining to such
Trust so long as the Company agrees to comply with this Section 609 with
respect to such successor business trust or other permitted successor.
ARTICLE SEVEN
SATISFACTION AND DISCHARGE
SECTION 701. DEFEASANCE.
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, Government Obligations, which
shall not contain provisions permitting the redemption or other
prepayment thereof at the option of the issuer thereof, the princi-
pal 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, 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:
(i) if such deposit shall have been made prior to the
Maturity of such Securities, a Company Order stating that the
money and Government Obligations deposited in accordance with
this Section shall be held in trust, as provided in Section
703; and
(ii) if Government Obligations shall have been
deposited, an Opinion of Counsel that the obligations so
deposited constitute Government 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
(iii) An Opinion of Counsel to the effect that the
Holders of such Securities will not recognize income, gain or
loss for Federal income tax purposes as a result of the
satisfaction and discharge of the Company's indebtedness in
respect of such Securities, and such Holders will be subject
to Federal income taxation on the same amounts and in the same
manner and at the same times as if such satisfaction and
discharge had occurred.
Upon the deposit of money or Government Obligations, or both,
in accordance with this Section, together with the documents required by
clauses (i), (ii) and (iii) 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 Opinion of Counsel specified in clause (iii) 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 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 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.
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 Government 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 Government Obligations shall have been deposited as
provided in this Section against, any tax, fee or other charge imposed on
or assessed against such Government Obligations or the principal or
interest received in respect of such Government 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 Government 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.
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 In-
denture 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 Government Obligations
held by the Trustee pursuant to Section 703.
SECTION 703. APPLICATION OF TRUST MONEY.
Neither the Government Obligations nor the money deposited
pursuant to Section 701, nor the principal or interest payments on any such
Government 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 Government Obligations, if not then needed for such purpose, shall, to
the extent practicable, be invested in Government 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 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, fur-
ther, that, so long as there shall not have occurred and be continuing an
Event of Default, any moneys held in accordance with this Section on the
Maturity of all such Securities in excess of the amount required to pay the
principal of and premium, if any, and interest, if any, then due on such
Securities shall be paid over to the Company free and clear of any trust,
lien or pledge under this Indenture except the lien provided by Section
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, including any Additional
Interest, on any Security of such series within 30 days after the
same becomes due and payable (whether or not payment is prohibited
by the provisions of Article Fifteen hereof); provided, however,
that a valid extension of the interest payment period by the
Company as contemplated in Section 311 of this Indenture shall not
constitute a failure to pay interest for this purpose; or
(b) failure to pay the principal of or premium, if any, on
any Security of such series at its Maturity (whether or not payment
is prohibited by the provisions of Article Fifteen hereof); or
(c) failure to perform or breach of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty
a default in the performance of which or breach of which is
elsewhere in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit of
one or more series of Securities other than such series) for a
period of 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 10% in principal amount
of the Outstanding Securities of such series, a written notice
specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder,
unless the Trustee, or the Trustee and the Holders of a principal
amount of Securities of such series not less than the principal
amount of Securities the Holders of which gave such notice, as the
case may be, shall agree in writing to an extension of such period
prior to its expiration; provided, however, that the Trustee, or
the Trustee and the Holders of such principal amount of Securities
of such series, as the case may be, shall be deemed to have agreed
to an extension of such period if corrective action is initiated by
the Company within such period and is being diligently pursued; or
(d) 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 in-
solvent, or approving as properly filed a petition by one or more
Persons other than the Company seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under any
applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other
similar official for the Company or for any substantial part of its
property, or ordering the winding up or liquidation of its affairs,
and any such decree or order for relief or any such other decree or
order shall have remained unstayed and in effect for a period of 90
consecutive days; or
(e) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insol-
vency, 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
(f) 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 interest on, 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 25% in principal amount of the
Securities of such series may then declare the principal of all Securities
of such series and interest accrued thereon to be due and payable
immediately; provided, however, that, in the case of the Securities of a
series issued to a Trust, if, upon an Event of Default, the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding
Securities of that series fail to declare the principal of all the
Securities of that series to be immediately due and payable, the holders of
at least 25% in aggregate liquidation amount of the corresponding series of
Preferred Securities then outstanding shall have such right by a notice in
writing to the Company and the Trustee; and upon any such declaration such
principal amount (or specified amount) of and the accrued interest
(including any Additional Interest) on all the Securities of such series
shall become immediately due and payable (provided that the payment of
principal and interest on such Securities shall remain subordinated to the
extent provided in Article Fifteen hereof). 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 or an Event of Default
specified in Section 801(d) or (e) shall have occurred and be continuing,
either the Trustee or the Holders of not less than 25% 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 (provided that the payment of principal and interest on
such Securities shall remain subordinated to the extent provided in the
Indenture).
At any time after such a declaration of acceleration with
respect to Securities of any series shall have been made and before a judg-
ment 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
(i) all overdue interest on all Securities of such
series;
(ii) 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;
(iii) 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;
(iv) 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 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 premium, if any, and on any overdue principal
and interest, at the rate or rates prescribed therefor in such Securities,
and, in addition thereto, such further amount as shall be sufficient to
cover any amounts due to the Trustee under Section 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 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
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.
Subject to the provisions of Article Fifteen, 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 not less than 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;
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 and 311) 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. Any holder of related Preferred
Securities shall have the right to institute suit for the enforcement of
any such payment to such holder with respect to Securities relating to such
Preferred Securities having a principal amount equal to the aggregate
liquidation preference amount of the related Preferred Securities held by
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.
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. 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 not less than 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;
provided, however, that so long as a Trust holds the Securities of any
series, such Trust may not waive any past default without the consent of at
least a majority in aggregate liquidation preference of the outstanding
Preferred Securities issued by such Trust affected, obtained as provided in
the Trust Agreement pertaining to such Trust.
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; provided, however, that the provisions of this Section
shall not apply to any suit instituted by the Company, to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group
of Holders, holding in the aggregate more than 10% in aggregate principal
amount of the Outstanding 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) Except during the continuance of an Event of Default,
(i) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture;
provided, however, that, in the case of any such certificates
or opinions which by any provisions hereof are specifically
required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his own
affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct
except that
(i) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error or
judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of Holders pursuant to Section
812 relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities of such
series.
(d) 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.
(e) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 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(c), no such notice to Holders shall be given until
at least 45 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 written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the
request or direction of any Holder pursuant to this Indenture,
unless such Holder shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall
(subject to applicable legal requirements) be entitled to examine,
during normal business hours, the books, records and premises of
the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder; 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 (i) a Responsible Officer of the Trustee shall have
actual knowledge of the default or Event of Default, as the case
may be, or (ii) 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,
and for the sole benefit of, the Company.
SECTION 907. COMPENSATION AND REIMBURSEMENT.
The Company shall
(a) pay to the Trustee from time to time compensation for all
services rendered by it hereunder in accordance with a separate fee
agreement between the Company and the Trustee (which compensation
shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, reimburse
the Trustee upon its request for all reasonable expenses,
disbursements and advances reasonably incurred or made by the
Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except to the extent that
any such expense, disbursement or advance may be attributable to
the Trustee's negligence, wilful misconduct or bad faith; and
(c) indemnify the Trustee for, and hold it harmless from and
against, any loss, liability or expense incurred by it arising out
of or in connection with the acceptance or administration of the
trust or trusts hereunder or the performance of its duties
hereunder, including the reasonable costs and expenses of defending
itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder,
except to the extent any such loss, liability or expense may be
attributable to its negligence, wilful misconduct or bad faith.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee as
such other than property and funds held in trust under Section 703 (except
as otherwise provided in Section 703). "Trustee" for purposes of this
Section shall include any predecessor Trustee; provided, however, that the
negligence, wilful misconduct or bad faith of any Trustee hereunder shall
not affect the rights of any other Trustee hereunder.
In addition to the rights provided to the Trustee pursuant to
the provisions of the immediately preceding paragraph of this Section 907,
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.
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. For purposes of Section 310(b)(1) of the Trust
Indenture Act and to the extent permitted thereby, the Trustee, in its
capacity as trustee in respect of the Securities of any series, shall not
be deemed to have a conflicting interest arising from its capacity as
trustee in respect of the Securities of any other series. The Trust
Agreement and the Guarantee Agreement pertaining to each Trust shall be
deemed to be specifically described in this Indenture for the purposes of
clause (i) of the first proviso contained in Section 310(b) of the Trust
Indenture Act.
SECTION 909. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be
(a) a corporation organized and doing business under the laws
of the United States, any State or Territory thereof or the
District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at
least $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; provided, however,
that so long as any Preferred Securities remain outstanding, the
Trust which issued such Preferred Securities shall not execute any
Act to remove the Trustee without the consent of the holders of a
majority in aggregate liquidation preference of Preferred
Securities issued by such Trust outstanding, obtained as provided
in the Trust Agreement pertaining to such Trust.
(d) If at any time:
(i) 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
(ii) 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
(iii) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (x) the Company by a Board Resolution may remove
the Trustee with respect to all Securities or (y) subject to Section 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 Board Resolution, 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
Board Resolution 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 (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 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; provided, however that 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 (i) 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, (ii) 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 (iii) shall add
to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate
and apart from any trust or trusts hereunder administered by any
other such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and
each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such successor
Trustee relates; provided, however that 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, 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 25% 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;
(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 appoint an Authenticating Agent or Agents with
respect to the Securities of one or more series, which shall be authorized
to act on behalf of the Trustee to authenticate Securities of such series
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 cor-
poration resulting from any merger, conversion or consolidation to which
such Authenticating Agent shall be a party, or any corporation succeeding
to the corporate agency or corporate trust business of an Authenticating
Agent, shall continue to be an Authenticating Agent, provided such
corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the
Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may
at any time terminate the agency of an Authenticating Agent by giving
written notice thereof to such Authenticating Agent and to the Company.
Upon receiving such a notice of resignation or upon such a termination, or
in case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Company.
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 Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section,
and the Trustee shall be entitled to be reimbursed for such payments, in
accordance with, and subject to the provisions of Section 907.
The provisions of Sections 308, 904 and 905 shall be ap-
plicable 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.
__________________________________________
As Trustee
By________________________________________
As Authenticating Agent
By________________________________________
Authorized Signatory
If all of the Securities of a series may not be originally
issued at one time, and if the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of
Payment where the Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so requested by the
Company in writing (which writing need not comply with Section 102 and need
not be accompanied by an Opinion of Counsel), shall appoint, in accordance
with this Section and in accordance with such procedures as shall be
acceptable to the Trustee, an Authenticating Agent having an office in a
Place of Payment designated by the Company with respect to such series of
Securities.
ARTICLE 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, 1996, 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.
(a) The Trustee shall transmit to the Holders such reports
concerning the Trustee and its actions under this Indenture as may be
required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant thereto. Such of those reports as are required to be
transmitted by the Trustee pursuant to Section 313(a) of the Trust
Indenture Act shall be so transmitted within 60 days after December 31 of
each year, commencing December 31, 1996.
(b) A copy of each such report shall, at the time of such
transmission to the Holders, be filed by the Trustee with each stock
exchange upon which the Securities are listed, with the Commission and with
the Company. The Company shall notify the Trustee when any Securities
shall have been listed on any stock exchange.
SECTION 1003. REPORTS TO THE TRUSTEE. The Company shall provide to the
Trustee such documents, reports, compliance certificates and information as
may be required by Section 314 of the Trust Indenture Act in the form, in
the manner and at the times required thereby.
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
(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 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 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 only pursuant to the
provisions of Section 1202 hereof or when no Security of such
series 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 as contemplated by Sections 201 and 301; or
(g) to provide for the authentication and delivery of bearer
securities and coupons appertaining thereto representing interest,
if any, thereon and for the procedures for the registration,
exchange and replacement thereof and for the giving of notice to,
and the solicitation of the vote or consent of, the holders
thereof, and for any and all other matters incidental thereto; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a separate or successor Trustee with respect to the
Securities of one or more series 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 of, the Securities; or
(j) to change any place or places where (i) the principal of
and premium, if any, and interest, if any, on all or any series of
Securities shall be payable, (ii) all or any series of Securities
may be surrendered for registration of transfer, (iii) all or any
series of Securities may be surrendered for exchange and (iv)
notices and demands to or upon the Company in respect of all or any
series of Securities and this Indenture may be served; or
(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 in any
material respect.
Without limiting the generality of the foregoing, if the Trust
Indenture Act as in effect at the date of the execution and delivery of
this Indenture or at any time thereafter shall be amended and
(x) if any such amendment shall require one or more
changes to any provisions hereof or the inclusion herein of
any additional provisions, or shall by operation of law be
deemed to effect such changes or incorporate such provisions
by reference or otherwise, this Indenture shall be deemed to
have been amended so as to conform to such amendment to the
Trust Indenture Act, and the Company and the Trustee may,
without the consent of any Holders, enter into an indenture
supplemental hereto to effect or evidence such changes or
additional provisions; or
(y) if any such amendment shall permit one or more
changes to, or the elimination of, any provisions hereof
which, at the date of the execution and delivery hereof or at
any time thereafter, are required by the Trust Indenture Act
to be contained herein, this Indenture shall be deemed to have
been amended to effect such changes or elimination, and the
Company and the Trustee may, without the consent of any
Holders, enter into an indenture supplemental hereto to
evidence such amendment hereof.
SECTION 1202. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities of all series then Outstanding
under this Indenture, considered as one class, by Act of said Holders de-
livered 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 no such supplemental indenture shall:
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on (except as provided in
Section 311 hereof), 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 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, if applicable, in
liquidation preference of any series of Preferred Securities), 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
(c) modify any of the provisions of this Section, Section 607
or Section 813 with respect to the Securities of any series, except
to increase the percentages in principal amount referred to in this
Section or such other Sections or to provide that other provisions
of this Indenture cannot be modified or waived without the consent
of the Holder of each Outstanding Security affected thereby;
provided, however, that this clause shall not be deemed to require
the consent of any Holder with respect to changes in the references
to "the Trustee" and concomitant changes in this Section, or the
deletion of this proviso, in accordance with the requirements of
Sections 911(b) and 1201(h).
Notwithstanding the foregoing, so long as any of the Preferred Securities
remain outstanding, the Trustee may not consent to a supplemental indenture
under this Section 1202 without the prior consent, obtained as provided in
a Trust Agreement pertaining to a Trust which issued such Preferred
Securities, of the holders of not less than a majority in aggregate
liquidation preference of all Preferred Securities issued by such Trust
affected, considered as one class, or, in the case of changes described in
clauses (a), (b) and (c) above, 100% in aggregate liquidation preference of
all such Preferred Securities then outstanding which would be affected
thereby, considered as one class. 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 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.
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 authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If
the Company shall so determine, new Securities of any series 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.
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 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.
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 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
by the Company or by the Holders of 33% in aggregate principal
amount of all of such series, 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 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 shall be valid without notice if the Holders of all
Outstanding Securities of such series 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 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 a Person shall be (a) a Holder of one or
more Outstanding Securities of such series, 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 by such Holder or Holders. The only
Persons who shall be entitled to attend any meeting of Holders of
Securities of any series 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 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; 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, considered as one
class, the Persons entitled to vote such specified percentage in principal
amount of the Outstanding Securities of such series, 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, 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 ad-
journment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for such
period as may be determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Except as provided by Section
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 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 with respect to which such meeting shall have been called, con-
sidered 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, 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, 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 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 which case the Company or the Holders of Securities of
the series 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 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 represented at the meeting,
considered as one class; and the meeting may be held as so ad-
journed 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 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.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, 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, stockholder,
officer or director, as such, past, present or future of the Company or of
any predecessor or successor corporation (either directly or through the
Company or a predecessor or successor corporation), whether by virtue of
any constitutional provision, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise; it being expressly agreed and
understood that this Indenture and all the Securities are solely corporate
obligations, and that no personal liability whatsoever shall attach to, or
be incurred by, any incorporator, stockholder, officer or director, past,
present or future, of the Company or of any predecessor or successor
corporation, either directly or indirectly through the Company or any
predecessor or successor corporation, because of the indebtedness hereby
authorized or under or by reason of any of the obligations, covenants or
agreements contained in this Indenture or in any of the Securities or to be
implied herefrom or therefrom, and 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.
ARTICLE FIFTEEN
SUBORDINATION OF SECURITIES
SECTION 1501. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS.
The Company, for itself, its successors and assigns, covenants
and agrees, and each Holder of the Securities of each series, by its
acceptance thereof, likewise covenants and agrees, that the payment of the
principal of and premium, if any, and interest, if any, on each and all of
the Securities is hereby expressly subordinated and subject to the extent
and in the manner set forth in this Article, in right of payment to the
prior payment in full of all Senior Indebtedness.
Each Holder of the Securities of each series, by its
acceptance thereof, authorizes and directs the Trustee on its behalf to
take such action as may be necessary or appropriate to effectuate the
subordination as provided in this Article, and appoints the Trustee its
attorney-in-fact for any and all such purposes.
SECTION 1502. PAYMENT OVER OF PROCEEDS OF SECURITIES.
In the event (a) of any insolvency or bankruptcy proceedings
or any receivership, liquidation, reorganization or other similar
proceedings in respect of the Company or a substantial part of its
property, or of any proceedings for liquidation, dissolution or other
winding up of the Company, whether or not involving insolvency or
bankruptcy, or (b) subject to the provisions of Section 1503, that (i) a
default shall have occurred with respect to the payment of principal of or
interest on or other monetary amounts due and payable on any Senior
Indebtedness, or (ii) there shall have occurred a default (other than a
default in the payment of principal or interest or other monetary amounts
due and payable) in respect of any Senior Indebtedness, as defined therein
or in the instrument under which the same is outstanding, permitting the
holder or holders thereof to accelerate the maturity thereof (with notice
or lapse of time, or both), and such default shall have continued beyond
the period of grace, if any, in respect thereof, and, in the cases of
subclauses (i) and (ii) of this clause (b), such default shall not have
been cured or waived or shall not have ceased to exist, or (c) that the
principal of and accrued interest on the Securities of any series shall
have been declared due and payable pursuant to Section 801 and such
declaration shall not have been rescinded and annulled as provided in
Section 802, then:
(1) the holders of all Senior Indebtedness shall
first be entitled to receive payment of the full amount
due thereon, or provision shall be made for such payment
in money or money's worth, before the Holders of any of
the Securities are entitled to receive a payment on
account of the principal of or interest on the
indebtedness evidenced by the Securities, including,
without limitation, any payments made pursuant to
Articles Four and Five;
(2) any payment by, or distribution of assets of,
the Company of any kind or character, whether in cash,
property or securities, to which any Holder or the
Trustee would be entitled except for the provisions of
this Article, shall be paid or delivered by the person
making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or
otherwise, directly to the holders of such Senior
Indebtedness or their representative or representatives
or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to
the aggregate amounts remaining unpaid on account of such
Senior Indebtedness held or represented by each, to the
extent necessary to make payment in full of all Senior
Indebtedness remaining unpaid after giving effect to any
concurrent payment or distribution (or provision
therefor) to the holders of such Senior Indebtedness,
before any payment or distribution is made to the Holders
of the indebtedness evidenced by the Securities or to the
Trustee under this Indenture; and
(3) in the event that, notwithstanding the
foregoing, any payment by, or distribution of assets of,
the Company of any kind or character, whether in cash,
property or securities, in respect of principal of or
interest on the Securities or in connection with any
repurchase by the Company of the Securities, shall be
received by the Trustee or any Holder before all Senior
Indebtedness is paid in full, or provision is made for
such payment in money or money's worth, such payment or
distribution in respect of principal of or interest on
the Securities or in connection with any repurchase by
the Company of the Securities shall be paid over to the
holders of such Senior Indebtedness or their
representative or representatives or to the trustee or
trustees under any indenture under which any instruments
evidencing any such Senior Indebtedness may have been
issued, ratably as aforesaid, for application to the
payment of all Senior Indebtedness remaining unpaid until
all such Senior Indebtedness shall have been paid in
full, after giving effect to any concurrent payment or
distribution (or provision therefor) to the holders of
such Senior Indebtedness.
Notwithstanding the foregoing, at any time after the 123rd day
following the date of deposit of cash or Government Obligations pursuant to
Section 701 (provided all conditions set out in such Section shall have
been satisfied), the funds so deposited and any interest thereon will not
be subject to any rights of holders of Senior Indebtedness including,
without limitation, those arising under this Article Fifteen; provided that
no event described in clauses (d) and (e) of Section 801 with respect to
the Company has occurred during such 123-day period.
For purposes of this Article only, the words "cash, property
or securities" shall not be deemed to include shares of stock of the
Company as reorganized or readjusted, or securities of the Company or any
other corporation provided for by a plan or reorganization or readjustment
which are subordinate in right of payment to all Senior Indebtedness which
may at the time be outstanding to the same extent as, or to a greater
extent than, the Securities are so subordinated as provided in this
Article. The consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or dissolution of the
Company following the conveyance or transfer of its property as an
entirety, or substantially as an entirety, to another corporation upon the
terms and conditions provided for in Article Eleven hereof shall not be
deemed a dissolution, winding-up, liquidation or reorganization for the
purposes of this Section 1502 if such other corporation shall, as a part of
such consolidation, merger, conveyance or transfer, comply with the
conditions stated in Article Eleven hereof. Nothing in Section 1501 or in
this Section 1502 shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 907.
SECTION 1503. DISPUTES WITH HOLDERS OF CERTAIN SENIOR INDEBTEDNESS.
Any failure by the Company to make any payment on or perform
any other obligation in respect of Senior Indebtedness, other than any
indebtedness incurred by the Company or assumed or guaranteed, directly or
indirectly, by the Company for money borrowed (or any deferral, renewal,
extension or refunding thereof) or any other obligation as to which the
provisions of this Section shall have been waived by the Company in the
instrument or instruments by which the Company incurred, assumed,
guaranteed or otherwise created such indebtedness or obligation, shall not
be deemed a default under clause (b) of Section 1502 if (i) the Company
shall be disputing its obligation to make such payment or perform such
obligation and (ii) either (A) no final judgment relating to such dispute
shall have been issued against the Company which is in full force and
effect and is not subject to further review, including a judgment that has
become final by reason of the expiration of the time within which a party
may seek further appeal or review, or (B) in the event that a judgment that
is subject to further review or appeal has been issued, the Company shall
in good faith be prosecuting an appeal or other proceeding for review and a
stay or execution shall have been obtained pending such appeal or review.
SECTION 1504. SUBROGATION.
Senior Indebtedness shall not be deemed to have been paid in
full unless the holders thereof shall have received cash (or securities or
other property satisfactory to such holders) in full payment of such Senior
Indebtedness then outstanding. Subject to the prior payment in full of all
Senior Indebtedness, the rights of the Holders of the Securities shall be
subrogated to the rights of the holders of Senior Indebtedness to receive
any further payments or distributions of cash, property or securities of
the Company applicable to the holders of the Senior Indebtedness until all
amounts owing on the Securities shall be paid in full; and such payments or
distributions of cash, property or securities received by the Holders of
the Securities, by reason of such subrogation, which otherwise would be
paid or distributed to the holders of such Senior Indebtedness shall, as
between the Company, its creditors other than the holders of Senior
Indebtedness, and the Holders, be deemed to be a payment by the Company to
or on account of Senior Indebtedness, it being understood that the
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders, on the one hand, and the
holders of the Senior Indebtedness, on the other hand.
SECTION 1505. OBLIGATION OF THE COMPANY UNCONDITIONAL.
Nothing contained in this Article or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as among the
Company, its creditors other than the holders of Senior Indebtedness and
the Holders, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders the principal of and interest on the
Securities as and when the same shall become due and payable in accordance
with their terms, or is intended to or shall affect the relative rights of
the Holders and creditors of the Company other than the holders of Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or
any Holder from exercising all remedies otherwise permitted by applicable
law upon default under this Indenture, subject to the rights, if any, under
this Article of the holders of Senior Indebtedness in respect of cash,
property or securities of the Company received upon the exercise of any
such remedy.
Upon any payment or distribution of assets or securities of
the Company referred to in this Article, the Trustee and the Holders shall
be entitled to rely upon any order or decree of a court of competent
jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending for the purpose of ascertaining the
persons entitled to participate in such distribution, the holders of the
Senior Indebtedness and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed
thereon, and all other facts pertinent thereto or to this Article.
SECTION 1506. PRIORITY OF SENIOR INDEBTEDNESS UPON MATURITY.
Upon the maturity of the principal of any Senior Indebtedness
by lapse of time, acceleration or otherwise, all matured principal of
Senior Indebtedness and interest and premium, if any, thereon shall first
be paid in full before any payment of principal or premium, if any, or
interest, if any, is made upon the Securities or before any Securities can
be acquired by the Company or any sinking fund payment is made with respect
to the Securities (except that required sinking fund payments may be
reduced by Securities acquired before such maturity of such Senior
Indebtedness).
SECTION 1507. TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS.
The Trustee shall be entitled to all rights set forth in this
Article with respect to any Senior Indebtedness at any time held by it, to
the same extent as any other holder of Senior Indebtedness. Nothing in this
Article shall deprive the Trustee of any of its rights as such holder.
SECTION 1508. NOTICE TO TRUSTEE TO EFFECTUATE SUBORDINATION.
Notwithstanding the provisions of this Article or any other
provision of the Indenture, the Trustee shall not be charged with knowledge
of the existence of any facts which would prohibit the making of any
payment of moneys to or by the Trustee unless and until the Trustee shall
have received written notice thereof from the Company, from a Holder or
from a holder of any Senior Indebtedness or from any representative or
representatives of such holder and, prior to the receipt of any such
written notice, the Trustee shall be entitled, subject to Section 901, in
all respects to assume that no such facts exist; provided, however, that,
if prior to the fifth Business Day preceding the date upon which by the
terms hereof any such moneys may become payable for any purpose, or in the
event of the execution of an instrument pursuant to Section 702
acknowledging satisfaction and discharge of this Indenture, then if prior
to the second Business Day preceding the date of such execution, the
Trustee shall not have received with respect to such moneys the notice
provided for in this Section, then, anything herein contained to the
contrary notwithstanding, the Trustee may, in its discretion, receive such
moneys and/or apply the same to the purpose for which they were received,
and shall not be affected by any notice to the contrary, which may be
received by it on or after such date; provided, however, that no such
application shall affect the obligations under this Article of the persons
receiving such moneys from the Trustee.
SECTION 1509. MODIFICATION, EXTENSION, ETC. OF SENIOR INDEBTEDNESS.
The holders of Senior Indebtedness may, without affecting in
any manner the subordination of the payment of the principal of and
premium, if any, and interest, if any, on the Securities, at any time or
from time to time and in their absolute discretion, agree with the Company
to change the manner, place or terms of payment, change or extend the time
of payment of, or renew or alter, any Senior Indebtedness, or amend or
supplement any instrument pursuant to which any Senior Indebtedness is
issued, or exercise or refrain from exercising any other of their rights
under the Senior Indebtedness including, without limitation, the waiver of
default thereunder, all without notice to or assent from the Holders or the
Trustee.
SECTION 1510. TRUSTEE HAS NO FIDUCIARY DUTY TO HOLDERS OF SENIOR
INDEBTEDNESS.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants and
objectives as are specifically set forth in this Indenture, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall
not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness, and shall not be liable to any such holders if it shall
mistakenly pay over or deliver to the Holders or the Company or any other
Person, money or assets to which any holders of Senior Indebtedness shall
be entitled by virtue of this Article or otherwise.
SECTION 1511. PAYING AGENTS OTHER THAN THE TRUSTEE.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the
term "Trustee" as used in this Article shall in such case (unless the
context shall otherwise require) be construed as extending to and including
such Paying Agent within its meaning as fully for all intents and purposes
as if such Paying Agent were named in this Article in addition to or in
place of the Trustee; provided, however, that Sections 1507, 1508 and 1510
shall not apply to the Company if it acts as Paying Agent.
SECTION 1512. RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS NOT IMPAIRED.
No right of any present or future holder of Senior
Indebtedness to enforce the subordination herein shall at any time or in
any way be prejudiced or impaired by any act or failure to act on the part
of the Company or by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge
thereof any such holder may have or be otherwise charged with.
SECTION 1513. EFFECT OF SUBORDINATION PROVISIONS; TERMINATION.
Notwithstanding anything contained herein to the contrary,
other than as provided in the immediately succeeding sentence, all the
provisions of this Indenture shall be subject to the provisions of this
Article, so far as the same may be applicable thereto.
Notwithstanding anything contained herein to the contrary, the
provisions of this Article Fifteen shall be of no further effect, and the
Securities shall no longer be subordinated in right of payment to the prior
payment of Senior Indebtedness, if the Company shall have delivered to the
Trustee a notice to such effect. Any such notice delivered by the Company
shall not be deemed to be a supplemental indenture for purposes of Article
Twelve.
_________________________
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.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the day and year first above
written.
DELMARVA POWER & LIGHT COMPANY
By: /s/ X.X. Xxxxxx
-------------------------------------------
Senior Vice President, Treasurer and
Chief Financial Officer
WILMINGTON TRUST COMPANY, Trustee
By: /s/ Xxxxx Xxxxx
--------------------------------------------
STATE OF DELAWARE )
) ss.:
COUNTY OF )
On the 1st day of October, 1996, before me personally came
X.X. Xxxxxx, to me known, who, being by me duly sworn, did depose and say
that she is the Senior Vice President, Treasurer and Chief Financial
Officer of Delmarva Power & Light Company, one of the corporations
described in and which executed the foregoing instrument; that she knows
the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed her name thereto by like
authority.
/s/ Xxxxxx X. Xxxxxx
----------------------------------
Xxxxxx X. Xxxxxx
Notary Public, State of Delaware
My Commission Expires March 23, 0000
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the 3rd day of October, 1996, before me personally came
Xxxxx Xxxxx, to me known, who, being by me duly sworn, did depose and say
that she is a Vice President of Wilmington Trust Company, one of the
corporations described in and which executed the foregoing instrument; that
she knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation, and that she signed her name
thereto by like authority.
/s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxxxx
NOTARY PUBLIC, State of New York
No. 00-0000000
Qualified in Kings County
Commission Expires 11/30/96
