Exhibit 4(a)
COLUMBUS SOUTHERN POWER COMPANY
AND
THE FIRST NATIONAL BANK OF CHICAGO
AS TRUSTEE
--------------------
INDENTURE
Dated as of September 1, 1995
--------------------
Junior Subordinated Debentures
CROSS-REFERENCE TABLE
Section of
Trust Indenture Act Section of
of 1939, as amended Indenture
310(a) 7.09
310(b) 7.08
7.10
310(c) Inapplicable
311(a) 7.13
311(b) 7.13
311(c) Inapplicable
312(a) 5.01
5.02(a)
312(b) 5.02(c)
5.02(d)
312(c) 5.02(e)
313(a) 5.04(a)
313(b) 5.04(b)
313(c) 5.04(a)
5.04(b)
313(d) 5.04(c)
314(a) 5.03
314(b) Inapplicable
314(c) 13.06(a)
314(d) Inapplicable
314(e) 13.06(b)
314(f) Inapplicable
315(a) 7.01(a)
7.02
315(b) 6.07
315(c) 7.01(a)
315(d) 7.01(b)
315(e) 6.08
316(a) 6.06
8.04
316(b) 6.04
316(c) 8.01
317(a) 6.02
317(b) 4.03
318(a) 13.08
TABLE OF CONTENTS
This Table of Contents does not constitute part of the
Indenture and should not have any bearing upon the
interpretation of any of its terms or provisions
RECITALS:
Purpose of Indenture. . . . . . . . . . . . . . . . . . . .1
Compliance with legal requirements. . . . . . . . . . . . .1
Purpose of and consideration for Indenture. . . . . . . . .1
ARTICLE ONE - DEFINITIONS
Section 1.01
Certain terms defined, other terms defined
in the Trust Indenture Act of 1939,
as amended, or by reference therein in
the Securities Act of 1933, as amended,
to have the meanings assigned therein
Affiliate. . . . . . . . . . . . . . . . . . . . . . .2
Authenticating Agent . . . . . . . . . . . . . . . . .2
Board of Directors . . . . . . . . . . . . . . . . . .2
Board Resolution . . . . . . . . . . . . . . . . . . .2
Business Day . . . . . . . . . . . . . . . . . . . . .3
Certificate. . . . . . . . . . . . . . . . . . . . . .3
Company. . . . . . . . . . . . . . . . . . . . . . . .3
Corporate Trust Office . . . . . . . . . . . . . . . .3
Debenture or Debentures. . . . . . . . . . . . . . . .3
Debentureholder. . . . . . . . . . . . . . . . . . . .3
Default. . . . . . . . . . . . . . . . . . . . . . . .3
Depository . . . . . . . . . . . . . . . . . . . . . .3
Event of Default . . . . . . . . . . . . . . . . . . .4
Global Debenture . . . . . . . . . . . . . . . . . . .4
Governmental Obligations . . . . . . . . . . . . . . .4
Indenture. . . . . . . . . . . . . . . . . . . . . . .4
Interest Payment Date. . . . . . . . . . . . . . . . .4
Officers' Certificate. . . . . . . . . . . . . . . . .5
Opinion of Counsel . . . . . . . . . . . . . . . . . .5
Outstanding. . . . . . . . . . . . . . . . . . . . . .5
Predecessor Debenture. . . . . . . . . . . . . . . . .5
Responsible Officer. . . . . . . . . . . . . . . . . .6
Senior Indebtedness. . . . . . . . . . . . . . . . . .6
Subsidiary . . . . . . . . . . . . . . . . . . . . . .6
Trustee. . . . . . . . . . . . . . . . . . . . . . . .6
Trust Indenture Act. . . . . . . . . . . . . . . . . .7
ARTICLE TWO - ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF DEBENTURES
Section 2.01
Designation, terms, amount, authentication
and delivery of Debentures . . . . . . . . . . . . . .7
Section 2.02
Form of Debenture and Trustee's certificate. . . . . .8
Section 2.03
Date and denominations of Debentures,
and provisions for payment of principal,
premium and interest . . . . . . . . . . . . . . . . .9
Section 2.04
Execution of Debentures. . . . . . . . . . . . . . . 10
Section 2.05
Exchange of Debentures
(a) Registration and transfer
of Debentures . . . . . . . . . . . . . . . . . 12
(b) Debenture Register; Debentures to be accompanied
by proper instruments of transfer . . . . . . . 12
(c) Charges upon exchange, transfer or
registration of Debentures. . . . . . . . . . . 12
(d) Restrictions on transfer or
exchange at time of redemption. . . . . . . . . 13
Section 2.06
Temporary Debentures . . . . . . . . . . . . . . . . 13
Section 2.07
Mutilated, destroyed, lost or
stolen Debentures. . . . . . . . . . . . . . . . . . 13
Section 2.08
Cancellation of surrendered Debentures . . . . . . . 14
Section 2.09
Provisions of Indenture and Debentures
for sole benefit of parties and
Debentureholders . . . . . . . . . . . . . . . . . . 14
Section 2.10
Appointment of Authenticating Agent. . . . . . . . . 15
Section 2.11
Global Debenture
(a) Authentication and Delivery;
Legend. . . . . . . . . . . . . . . . . . . . . 15
(b) Transfer of Global Debenture. . . . . . . . . . 15
(c) Issuance of Debentures in
Definitive Form . . . . . . . . . . . . . . . . 16
ARTICLE THREE - REDEMPTION OF DEBENTURES AND
SINKING FUND PROVISIONS
Section 3.01
Redemption of Debentures . . . . . . . . . . . . . . 16
Section 3.02
(a) Notice of redemption. . . . . . . . . . . . . . 16
(b) Selection of Debentures in case
less than all Debentures to be
redeemed. . . . . . . . . . . . . . . . . . . . 17
Section 3.03
(a) When Debentures called for
redemption become due and payable . . . . . . . 18
(b) Receipt of new Debenture upon
partial payment . . . . . . . . . . . . . . . . 18
Section 3.04
Sinking Fund for Debentures. . . . . . . . . . . . . 18
Section 3.05
Satisfaction of Sinking Fund
Payments with Debentures . . . . . . . . . . . . . . 19
Section 3.06
Redemption of Debentures for
Sinking Fund . . . . . . . . . . . . . . . . . . . . 19
ARTICLE FOUR - PARTICULAR COVENANTS OF THE COMPANY
Section 4.01
Payment of principal (and premium
if any) and interest on Debentures . . . . . . . . . 19
Section 4.02
Maintenance of office or agency for
payment of Debentures, designation of
office or agency for payment,
registration, transfer and exchange
of Debentures. . . . . . . . . . . . . . . . . . . . 19
Section 4.03
(a) Duties of paying agent. . . . . . . . . . . . . 20
(b) Company as paying agent . . . . . . . . . . . . 20
(c) Holding sums in trust . . . . . . . . . . . . . 21
Section 4.04
Appointment to fill vacancy in
office of Trustee. . . . . . . . . . . . . . . . . . 21
Section 4.05
Restriction on consolidation,
merger or sale . . . . . . . . . . . . . . . . . . . 21
ARTICLE FIVE - DEBENTUREHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
Section 5.01
Company to furnish Trustee information
as to names and addresses of
Debentureholders . . . . . . . . . . . . . . . . . . 21
Section 5.02
(a) Trustee to preserve information
as to names and addresses of
Debentureholders received by it
in capacity of paying agent . . . . . . . . . . 22
(b) Trustee may destroy list of
Debentureholders on certain
conditions. . . . . . . . . . . . . . . . . . . 22
(c) Trustee to make information as to
names and addresses of Debentureholders
available to "applicants" to mail
communications to Debentureholders in
certain circumstances . . . . . . . . . . . . . 22
(d) Procedure if Trustee elects not to
make information available to
applicants. . . . . . . . . . . . . . . . . . . 22
(e) Company and Trustee not accountable
for disclosure of information . . . . . . . . . 23
Section 5.03
(a) Annual and other reports to be filed
by Company with Trustee . . . . . . . . . . . . 23
(b) Additional information and reports
to be filed with Trustee and
Securities and Exchange Commission. . . . . . . 23
(c) Summaries of information and reports
to be transmitted by Company to
Debentureholders. . . . . . . . . . . . . . . . 23
(d) Annual Certificate to be furnished
to Trustee. . . . . . . . . . . . . . . . . . . 24
Section 5.04
(a) Trustee to transmit annual report
to Debentureholders . . . . . . . . . . . . . . 24
(b) Trustee to transmit certain further
reports to Debentureholders . . . . . . . . . . 25
(c) Copies of reports to be filed with
stock exchanges and Securities and
Exchange Commission . . . . . . . . . . . . . . 25
ARTICLE SIX - REMEDIES OF THE TRUSTEE AND
DEBENTUREHOLDERS ON EVENT OF DEFAULT
Section 6.01
(a) Events of default defined . . . . . . . . . . . 25
(b) Acceleration of maturity
upon Event of Default . . . . . . . . . . . . . 27
(c) Waiver of default and rescission
of declaration of maturity. . . . . . . . . . . 27
(d) Restoration of former position
and rights upon curing default. . . . . . . . . 27
Section 6.02
(a) Covenant of Company to pay to
Trustee whole amount due on
Debentures on default in payment
of interest or principal (and
premium, if any). . . . . . . . . . . . . . . . 28
(b) Trustee may recover judgment for
whole amount due on Debentures on
failure of Company to pay . . . . . . . . . . . 28
(c) Billing of proof of claim by Trustee
in bankruptcy, reorganization or
receivership proceeding . . . . . . . . . . . . 28
(d) Rights of action and of asserting
claims may be enforced by Trustee
without possession of Debentures. . . . . . . . 29
Section 6.03
Application of monies collected by Trustee . . . . . 29
Section 6.04
Limitation on suits by holders of Debentures . . . . 30
Section 6.05
(a) Remedies Cumulative . . . . . . . . . . . . . . 30
(b) Delay or omission in exercise
of rights not waiver of default . . . . . . . . 31
Section 6.06
Rights of holders of majority in
principal amount of Debentures to
direct trustee and to waive defaults . . . . . . . . 31
Section 6.07
Trustees to give notice of defaults
known to it, but may withhold in
certain circumstances. . . . . . . . . . . . . . . . 31
Section 6.08
Requirements of an undertaking to pay
costs in certain suits under Indenture
or against Trustee . . . . . . . . . . . . . . . . . 32
ARTICLE SEVEN - CONCERNING THE TRUSTEE
Section 7.01
(a) Upon Event of Default occurring and
continuing, Trustee shall exercise powers
vested in it, and use same degree of
care and skill in their exercise, as
prudent individual will use . . . . . . . . . . 32
(b) Trustee not relieved from liability
for negligence or willful misconduct
except as provided in this section. . . . . . . 33
(1) Prior to Event of Default and
after the curing of all Events of
Default which may have occurred
(i) Trustee not liable except for
performance of duties specifically
set forth
(ii) In absence of bad faith, Trustee
may conclusively rely on
certificates or opinions furnished
it hereunder,subject to duty to
examine the same if specifically
required to be furnished to it
(2) Trustee not liable for error of judgment made
in good faith by Responsible Officer unless
Trustee negligent
(3) Trustee not liable for action or non-action
in accordance with direction of holders
of majority in principal amount of
Debentures
(4) Trustee need not expend own funds without
adequate indemnity
Section 7.02
Subject to provisions of Section 7.01:
(a) Trustee may rely on documents believed
genuine and properly signed or presented. . . . 34
(b) Sufficient evidence by certain
instruments provided for. . . . . . . . . . . . 34
(c) Trustee may consult with counsel and act
on advice or Opinion of Counsel . . . . . . . . 34
(d) Trustee may require indemnity from
Debentureholders. . . . . . . . . . . . . . . . 34
(e) Trustee not liable for actions in good
faith believed to be authorized . . . . . . . . 35
(f) Trustee not bound to investigate facts or
matters stated in certificates, etc. unless
requested in writing by Debentureholders. . . . 35
(g) Trustee may perform duties directly or
through agents or attorneys . . . . . . . . . . 35
Section 7.03
(a) Trustee not liable for recitals in
Indenture or in Debentures. . . . . . . . . . . 35
(b) No representations by Trustee as to
validity or Indenture or of Debentures. . . . . 35
(c) Trustee not accountable for use of
Debentures or proceeds. . . . . . . . . . . . . 35
Section 7.04
Trustee, paying agent or Debenture
Registrar may own Debentures . . . . . . . . . . . . 35
Section 7.05
Monies received by Trustee to be held
in Trust without interest. . . . . . . . . . . . . . 35
Section 7.06
(a) Trustee entitled to compensation,
reimbursement and indemnity . . . . . . . . . . 36
(b) Obligations to Trustee to be
secured by lien prior to
Debentures. . . . . . . . . . . . . . . . . . . 36
Section 7.07
Right of Trustee to rely on certificate
of officers of Company where no other
evidence specifically prescribed . . . . . . . . . . 36
Section 7.08
Trustee acquiring conflicting interest
to eliminate conflict or resign. . . . . . . . . . . 36
Section 7.09
Requirements for eligibility of
trustee. . . . . . . . . . . . . . . . . . . . . . . 37
Section 7.10
(a) Resignation of Trustee and
appointment of successor. . . . . . . . . . . . 37
(b) Removal of Trustee by Company
or by court on Debentureholders'
application . . . . . . . . . . . . . . . . . . 37
(c) Removal of Trustee by holders
of majority in principal amount
of Debentures . . . . . . . . . . . . . . . . . 38
(d) Time when resignation or removal
of Trustee effective. . . . . . . . . . . . . . 38
(e) One Trustee for each series . . . . . . . . . . 38
Section 7.11
(a) Acceptance by successor Trustee . . . . . . . . 38
(b) Trustee with respect to less than
all series. . . . . . . . . . . . . . . . . . . 39
(c) Company to confirm Trustee's rights . . . . . . 39
(d) Successor Trustee to be qualified . . . . . . . 40
(e) Notice of succession. . . . . . . . . . . . . . 40
Section 7.12
Successor to Trustee by merger, consolidation
of succession to business. . . . . . . . . . . . . . 40
Section 7.13
Limitations on rights of Trustee as a
creditor to obtain payment of certain
claims . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE EIGHT - CONCERNING THE DEBENTUREHOLDERS
Section 8.01
Evidence of action by Debentureholders . . . . . . . 40
Section 8.02
Proof of execution of instruments and of
holding of Debentures. . . . . . . . . . . . . . . . 41
Section 8.03
Who may be deemed owners of Debentures . . . . . . . 41
Section 8.04
Debentures owned by Company or controlled
or controlling companies disregarded for
certain purposes . . . . . . . . . . . . . . . . . . 42
Section 8.05
Instruments executed by Debentureholders
bind future holders. . . . . . . . . . . . . . . . . 42
ARTICLE NINE - SUPPLEMENTAL INDENTURES
Section 9.01
Purposes for which supplemental indenture
may be entered into without consent of
Debentureholders . . . . . . . . . . . . . . . . . . 42
Section 9.02
Modification of Indenture with consent
of Debentureholders. . . . . . . . . . . . . . . . . 44
Section 9.03
Effect of supplemental indentures. . . . . . . . . . 44
Section 9.04
Debentures may bear notation of changes
by supplemental indentures . . . . . . . . . . . . . 45
Section 9.05
Opinion of Counsel . . . . . . . . . . . . . . . . . 45
ARTICLE TEN - CONSOLIDATION, MERGER AND SALE
Section 10.01
Consolidations or mergers of Company
and sales or conveyances of property
of Company permitted . . . . . . . . . . . . . . . . 45
Section 10.02
(a) Rights and duties of successor company. . . . . 46
(b) Appropriate changes may be made in
phraseology and form of Debentures. . . . . . . 46
(c) Company may consolidate or merge into
itself or acquire properties of other
corporations. . . . . . . . . . . . . . . . . . 46
Section 10.03
Opinion of Counsel . . . . . . . . . . . . . . . . . 46
ARTICLE ELEVEN - SATISFACTION AND DISCHARGE OF INDENTURE:
UNCLAIMED MONIES
Section 11.01
Satisfaction and discharge of Indenture. . . . . . . 47
Section 11.02
Application by Trustee of funds deposited
for payment of Debentures. . . . . . . . . . . . . . 47
Section 11.03
Repayment of monies held by paying agent . . . . . . 48
Section 11.04
Repayment of monies held by Trustee. . . . . . . . . 48
ARTICLE TWELVE - IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 12.01
Incorporators, Stockholders, officers and
directors of Company exempt from individual
liability. . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE THIRTEEN - MISCELLANEOUS PROVISIONS
Section 13.01
Successors and assigns of Company
bound by Indenture . . . . . . . . . . . . . . . . . 49
Section 13.02
Acts of board, committee or officer
of successor company valid . . . . . . . . . . . . . 49
Section 13.03
Surrender of powers by Company . . . . . . . . . . . 49
Section 13.04
Required notices or demands may by
served by mail . . . . . . . . . . . . . . . . . . . 49
Section 13.05
Indenture and Debentures to be construed
in accordance with laws of the State
of New York. . . . . . . . . . . . . . . . . . . . . 49
Section 13.06
(a) Officers' Certificate and Opinion of
Counsel to be furnished upon applications
or demands by company . . . . . . . . . . . . . 49
(b) Statements to be included in each
certificate or opinion with respect
to compliance with condition or covenant. . . . 50
Section 13.07
Payments due on non-business days. . . . . . . . . . 50
Section 13.08
Provisions required by Trust Indenture
Act of 1939 to control . . . . . . . . . . . . . . . 50
Section 13.09
Indenture may be executed in counterparts. . . . . . 50
Section 13.10
Separability of Indenture provisions . . . . . . . . 50
Section 13.11
Assignment by Company to subsidiary. . . . . . . . . 50
ARTICLE FOURTEEN - SUBORDINATION OF DEBENTURES
Section 14.01
Agreement of Subordination . . . . . . . . . . . . . 51
Section 14.02
Limitations on payments to Debentureholders. . . . . 51
Section 14.03
Payments in bankruptcy . . . . . . . . . . . . . . . 52
Section 14.04
Subrogation of Debentures. . . . . . . . . . . . . . 53
Section 14.05
Authorization by Debentureholders. . . . . . . . . . 54
Section 14.06
Notice to Trustee. . . . . . . . . . . . . . . . . . 54
Section 14.07
Trustee's relation to Senior Indebtedness. . . . . . 55
Section 14.08
Acts of holders of Senior Indebtedness . . . . . . . 55
ACCEPTANCE OF TRUST BY TRUSTEE . . . . . . . . . . . . . . . . 56
TESTIMONIUM. . . . . . . . . . . . . . . . . . . . . . . . . . 56
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . . . 56
ACKNOWLEDGEMENTS . . . . . . . . . . . . . . . . . . . . . . . 57
THIS INDENTURE, dated as of the 1st day of September, 1995,
between COLUMBUS SOUTHERN POWER COMPANY, a corporation duly
organized and existing under the laws of the State of Ohio
(hereinafter sometimes referred to as the "Company"), and THE
FIRST NATIONAL BANK OF CHICAGO, a national banking association
organized and existing under the laws of the United States, as
trustee (hereinafter sometimes referred to as the "Trustee"):
WHEREAS, for its lawful corporate purposes, the Company has
duly authorized the execution and delivery of this Indenture to
provide for the issuance of unsecured debentures (hereinafter
referred to as the "Debentures"), in an unlimited aggregate
principal amount to be issued from time to time in one or more
series as in this Indenture provided, as registered Debentures
without coupons, to be authenticated by the certificate of the
Trustee;
WHEREAS, to provide the terms and conditions upon which the
Debentures are to be authenticated, issued and delivered, the
Company has duly authorized the execution of this Indenture;
WHEREAS, the Debentures and the certificate of
authentication to be borne by the Debentures (the "Certificate of
Authentication") are to be substantially in such forms as may be
approved by the Board of Directors (as defined below) or set
forth in any indenture supplemental to this Indenture;
AND WHEREAS, all acts and things necessary to make the
Debentures issued pursuant hereto, when executed by the Company
and authenticated and delivered by the Trustee as in this
Indenture provided, the valid, binding and legal obligations of
the Company, and to constitute these presents a valid indenture
and agreement according to its terms, have been done and
performed or will be done and performed prior to the issuance of
such Debentures, and the execution of this Indenture has been and
the issuance hereunder of the Debentures has been or will be
prior to issuance in all respects duly authorized, and the
Company, in the exercise of the legal right and power in it
vested, executes this Indenture and proposes to make, execute,
issue and deliver the Debentures;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which
the Debentures are and are to be authenticated, issued and
delivered, and in consideration of the premises, of the purchase
and acceptance of the Debentures by the holders thereof and of
the sum of one dollar ($1.00) to it duly paid by the Trustee at
the execution of these presents, the receipt whereof is hereby
acknowledged, the Company covenants and agrees with the Trustee,
for the equal and proportionate benefit (subject to the
provisions of this Indenture) of the respective holders from time
to time of the Debentures, without any discrimination, preference
or priority of any one Debenture over any other by reason of
priority in the time of issue, sale or negotiation thereof, or
otherwise, except as provided herein, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. The terms defined in this Section (except as
in this Indenture otherwise expressly provided or unless the
context otherwise requires) for all purposes of this Indenture,
any resolution of the Board of Directors of the Company and of
any indenture supplemental hereto shall have the respective
meanings specified in this Section. All other terms used in this
Indenture which are defined in the Trust Indenture Act of 1939,
as amended, or which are by reference in such Act defined in the
Securities Act of 1933, as amended (except as herein otherwise
expressly provided or unless the context otherwise requires),
shall have the meanings assigned to such terms in said Trust
Indenture Act and in said Securities Act as in force at the date
of the execution of this instrument.
Affiliate:
The term "Affiliate" of the Company shall mean any company at
least a majority of whose outstanding voting stock shall at the
time be owned by the Company, or by one or more direct or
indirect subsidiaries of or by the Company and one or more direct
or indirect subsidiaries of the Company. For the purposes only
of this definition of the term "Affiliate", the term "voting
stock", as applied to the stock of any company, shall mean stock
of any class or classes having ordinary voting power for the
election of a majority of the directors of such company, other
than stock having such power only by reason of the occurrence of
a contingency.
Authenticating Agent:
The term "Authenticating Agent" shall mean an authenticating
agent with respect to all or any of the series of Debentures, as
the case may be, appointed with respect to all or any series of
the Debentures, as the case may be, by the Trustee pursuant to
Section 2.10.
Board of Directors:
The term "Board of Directors" shall mean the Board of Directors
of the Company, or any duly authorized committee of such Board.
Board Resolution:
The term "Board Resolution" shall mean 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.
Business Day:
The term "business day", with respect to any series of
Debentures, shall mean any day other than a day on which banking
institutions in the Borough of Manhattan, the City and State of
New York, are authorized or obligated by law or executive order
to close.
Certificate:
The term "Certificate" shall mean a certificate signed by the
Chairman of the Board, the President, any Vice President, the
Treasurer or any Assistant Treasurer of the Company. The
Certificate need not comply with the provisions of Section 13.06.
Company:
The term "Company" shall mean Columbus Southern Power Company, a
corporation duly organized and existing under the laws of the
State of Ohio, and, subject to the provisions of Article Ten,
shall also include its successors and assigns.
Corporate Trust Office:
The term "Corporate Trust Office" shall mean the office of the
Trustee at which at any particular time its corporate trust
business shall be principally administered, which office at the
date of the execution of this Indenture is located at The First
National Bank of Chicago, Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust
Administration.
Debenture or Debentures:
The term "Debenture" or "Debentures" shall mean any Debenture or
Debentures, as the case may be, authenticated and delivered under
this Indenture.
Debentureholder:
The term "Debentureholder", "holder of Debentures", "registered
holder", or other similar term, shall mean the person or persons
in whose name or names a particular Debenture shall be registered
on the books of the Company kept for that purpose in accordance
with the terms of this Indenture.
Default:
The term "Default" shall mean any event, act or condition which
with notice or lapse of time, or both, would constitute an Event
of Default.
Depository:
The term "Depository" shall mean, with respect to Debentures of
any series, for which the Company shall determine that such
Debentures will be issued as a Global Debenture, The Depository
Trust Company, New York, New York, another clearing agency, or
any successor registered as a clearing agency under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
or other applicable statute or regulation, which, in each case,
shall be designated by the Company pursuant to either Section
2.01 or 2.11.
Event of Default:
The term "Event of Default" with respect to Debentures of a
particular series shall mean any event specified in Section 6.01,
continued for the period of time, if any, therein designated.
Global Debenture:
The term "Global Debenture" shall mean, with respect to any
series of Debentures, a Debenture executed by the Company and
delivered by the Trustee to the Depository or pursuant to the
Depository's instruction, all in accordance with the Indenture,
which shall be registered in the name of the Depository or its
nominee.
Governmental Obligations:
The term "Governmental Obligations" shall mean securities that
are (i) direct obligations of the United States of America for
the payment of which its full faith and credit is pledged or (ii)
obligations of a person controlled or supervised by and acting as
an agency or instrumentality of the United States of America, the
payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in
either case, are not callable or redeemable at the option of the
issuer thereof, and shall also include a depository receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities
Act of 1933, as amended) as custodian with respect to any such
Governmental Obligation or a specific payment of principal of or
interest on any such Governmental Obligation held by such
custodian for the account of the holder of such depository
receipt; provided that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received
by the custodian in respect of the Governmental Obligation or the
specific payment of principal of or interest on the Governmental
Obligation evidenced by such depository receipt.
Indenture:
The term "Indenture" shall mean this instrument as originally
executed, or, if amended or supplemented as herein provided, as
so amended or supplemented.
Interest Payment Date:
The term "Interest Payment Date" when used with respect to any
installment of interest on a Debenture of a particular series
shall mean the date specified in such Debenture or in a Board
Resolution or in an indenture supplemental hereto with respect to
such series as the fixed date on which an installment of interest
with respect to Debentures of that series is due and payable.
Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate signed
by the Chairman of the Board, the President or a Vice President
and by the Treasurer or an Assistant Treasurer or the Secretary
or an Assistant Secretary of the Company. Each such certificate
shall include the statements provided for in Section 13.06, if
and to the extent required by the provisions thereof.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in writing
signed by legal counsel, who may be an employee of or counsel for
the Company. Each such opinion shall include the statements
provided for in Section 13.06, if and to the extent required by
the provisions thereof.
Outstanding:
The term "outstanding", when used with reference to Debentures of
any series, shall, subject to the provisions of Section 8.04,
mean, as of any particular time, all Debentures of that series
theretofore authenticated and delivered by the Trustee under this
Indenture, except (a) Debentures theretofore canceled by the
Trustee or any paying agent, or delivered to the Trustee or any
paying agent for cancellation or which have previously been
canceled; (b) Debentures or portions thereof for the payment or
redemption of which monies or Governmental Obligations in the
necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company) or
shall have been set aside and segregated in trust by the Company
(if the Company shall act as its own paying agent); provided,
however, that if such Debentures or portions of such Debentures
are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as in Article Three provided, or
provision satisfactory to the Trustee shall have been made for
giving such notice; and (c) Debentures in lieu of or in
substitution for which other Debentures shall have been
authenticated and delivered pursuant to the terms of Section
2.07.
Predecessor Debenture:
The term "Predecessor Debenture" of any particular Debenture
shall mean every previous Debenture evidencing all or a portion
of the same debt as that evidenced by such particular Debenture;
and, for the purposes of this definition, any Debenture
authenticated and delivered under Section 2.07 in lieu of a lost,
destroyed or stolen Debenture shall be deemed to evidence the
same debt as the lost, destroyed or stolen Debenture.
Responsible Officer:
The term "Responsible Officer" when used with respect to the
Trustee shall mean the chairman of the board of directors, the
president, any vice president, the secretary, the treasurer, any
trust officer, any corporate trust officer or any other officer
or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the
time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his or her
knowledge of and familiarity with the particular subject.
Senior Indebtedness:
The term "Senior Indebtedness" of the Company shall mean the
principal of, premium, if any, interest on and any other payment
due pursuant to any of the following, whether outstanding at the
date of execution of this Indenture or thereafter incurred,
created or assumed: (a) all indebtedness of the Company evidenced
by notes, debentures, bonds or other securities sold by the
Company for money or other obligations for money borrowed; (b)
all indebtedness of others of the kinds described in the
preceding clause (a) assumed by or guaranteed in any manner by
the Company or in effect guaranteed by the Company through an
agreement to purchase, contingent or otherwise; (c) all
installment purchase agreements entered into by the Company in
connection with air quality development revenue bonds or other
revenue bonds issued by an agency or political subdivision of a
state of the United States of America; and (d) all renewals,
extensions or refundings of indebtedness of the kinds described
in either of the preceding clauses (a), (b) and (c) 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 Debentures.
Subsidiary:
The term "Subsidiary" shall mean any corporation at least a
majority of whose outstanding voting stock shall at the time be
owned by the Company or by one or more Subsidiaries or by the
Company and one or more Subsidiaries. For the purposes only of
this definition of the term "Subsidiary", the term "voting
stock", as applied to the stock of any corporation, shall mean
stock of any class or classes having ordinary voting power for
the election of a majority of the directors of such corporation,
other than stock having such power only by reason of the
occurrence of a contingency.
Trustee:
The term "Trustee" shall mean The First National Bank of Chicago,
and, subject to the provisions of Article Seven, shall also
include its successors and assigns, and, if at any time there is
more than one person acting in such capacity hereunder, "Trustee"
shall mean each such person. The term "Trustee" as used with
respect to a particular series of the Debentures shall mean the
trustee with respect to that series.
Trust Indenture Act:
The term "Trust Indenture Act", subject to the provisions of
Sections 9.01, 9.02, and 10.01, shall mean the Trust Indenture
Act of 1939, as amended and in effect at the date of execution of
this Indenture.
ARTICLE TWO
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF DEBENTURES
SECTION 2.01. The aggregate principal amount of Debentures
which may be authenticated and delivered under this Indenture is
unlimited.
The Debentures may be issued in one or more series up to the
aggregate principal amount of Debentures of that series from time
to time authorized by or pursuant to a Board Resolution or
pursuant to one or more indentures supplemental hereto, prior to
the initial issuance of Debentures of a particular series. Prior
to the initial issuance of Debentures of any series, there shall
be established in or pursuant to a Board Resolution, and set
forth in an Officers' Certificate, or established in one or more
indentures supplemental hereto:
(1) the title of the Debentures of the series (which
shall distinguish the Debentures of the series from all
other Debentures);
(2) any limit upon the aggregate principal amount of
the Debentures of that series which may be authenticated and
delivered under this Indenture (except for Debentures
authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Debentures of
that series);
(3) the date or dates on which the principal of the
Debentures of the series is payable;
(4) the rate or rates at which the Debentures of the
series shall bear interest or the manner of calculation of
such rate or rates, if any;
(5) the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest
will be payable or the manner of determination of such
Interest Payment Dates and the record date for the
determination of holders to whom interest is payable on any
such Interest Payment Dates;
(6) the right, if any, to extend the interest payment
periods and the duration of such extension;
(7) the period or periods within which, the price or
prices at which and the terms and conditions upon which,
Debentures of the series may be redeemed, in whole or in
part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem
or purchase Debentures of the series pursuant to any sinking
fund or analogous provisions (including payments made in
cash in anticipation of future sinking fund obligations) or
at the option of a holder thereof and the period or periods
within which, the price or prices at which, and the terms
and conditions upon which, Debentures of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(9) the form of the Debentures of the series including
the form of the Certificate of Authentication for such
series;
(10) if other than denominations of $25 or any integral
multiple thereof, the denominations in which the Debentures
of the series shall be issuable;
(11) any and all other terms with respect to such
series (which terms shall not be inconsistent with the terms
of this Indenture); and
(12) whether the Debentures are issuable as a Global
Debenture and, in such case, the identity for the Depository
for such series.
All Debentures of any one series shall be substantially
identical except as to denomination and except as may otherwise
be provided in or pursuant to any such Board Resolution or in any
indentures supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate
record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Officers' Certificate setting
forth the terms of the series.
SECTION 2.02. The Debentures of any series and the
Trustee's certificate of authentication to be borne by such
Debentures shall be substantially of the tenor and purport as set
forth in one or more indentures supplemental hereto or as
provided in a Board Resolution and as set forth in an Officers'
Certificate, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of
this Indenture, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any
rule or regulation of any stock exchange on which Debentures of
that series may be listed, or to conform to usage.
SECTION 2.03. The Debentures shall be issuable as
registered Debentures and in the denominations of $25 or any
integral multiple thereof, subject to Section 2.01(10). The
Debentures of a particular series shall bear interest payable on
the dates and at the rate or rates specified with respect to that
series. The principal of and the interest on the Debentures of
any series, as well as any premium thereon in case of redemption
thereof prior to maturity, shall be payable in the coin or
currency of the United States of America which at the time is
legal tender for public and private debt, at the office or agency
of the Company maintained for that purpose. Each Debenture shall
be dated the date of its authentication.
The interest installment on any Debenture which is payable,
and is punctually paid or duly provided for, on any Interest
Payment Date for Debentures of that series shall be paid to the
person in whose name said Debenture (or one or more Predecessor
Debentures) is registered at the close of business on the regular
record date for such interest installment, except that interest
payable on redemption or maturity shall be payable as set forth
in the Officers' Certificate or indenture supplemental hereto
establishing the terms of such series of Debentures.
Any interest on any Debenture which is payable, but is not
punctually paid or duly provided for, on any Interest Payment
Date for Debentures of the same series (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered
holder on the relevant regular record date by virtue of having
been such holder; and such Defaulted Interest shall be paid by
the Company, at its election, as provided in clause (1) or clause
(2) below:
(1) The Company may make payment of any Defaulted
Interest on Debentures to the persons in whose names such
Debentures (or their respective Predecessor Debentures) are
registered at the close of business on a special record date
for the payment of such Defaulted Interest, which shall be
fixed in the following manner: the Company shall notify the
Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Debenture and the date of
the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in
trust for the benefit of the persons entitled to such
Defaulted Interest as in this clause provided. Thereupon
the Trustee shall fix a special record date for the payment
of such Defaulted Interest which shall not be more than 15
nor less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such special record
date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted
Interest and the special record date therefor to be mailed,
first class postage prepaid, to each Debentureholder at his
or her address as it appears in the Debenture Register (as
hereinafter defined), 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 mailed as aforesaid, such Defaulted Interest
shall be paid to the persons in whose names such Debentures
(or their respective Predecessor Debentures) are registered
on such special record date and shall be no longer payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted
Interest on any Debentures in any other lawful manner not
inconsistent with the requirements of any securities
exchange on which such Debentures 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.
Unless otherwise set forth in a Board Resolution or one or
more indentures supplemental hereto establishing the terms of any
series of Debentures pursuant to Section 2.01 hereof, the term
"regular record date" as used in this Section with respect to a
series of Debentures with respect to any Interest Payment Date
for such series shall mean either the fifteenth day of the month
immediately preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.01 hereof shall
occur, if such Interest Payment Date is the first day of a month,
or the last day of the month immediately preceding the month in
which an Interest Payment Date established for such series
pursuant to Section 2.01 hereof shall occur, if such Interest
Payment Date is the fifteenth day of a month, whether or not such
date is a business day.
Subject to the foregoing provisions of this Section, each
Debenture of a series delivered under this Indenture upon
transfer of or in exchange for or in lieu of any other Debenture
of such series shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other
Debenture.
SECTION 2.04. The Debentures shall, subject to the
provisions of Section 2.06, be printed on steel engraved borders
or fully or partially engraved, or legibly typed, as the proper
officers of the Company may determine, and shall be signed on
behalf of the Company by its Chairman of the Board, its President
or one of its Vice Presidents, under its corporate seal attested
by its Secretary or one of its Assistant Secretaries. The
signature of the Chairman of the Board, the President or a Vice
President and/or the signature of the Secretary or an Assistant
Secretary in attestation of the corporate seal, upon the
Debentures, may be in the form of a facsimile signature of a
present or any future Chairman of the Board, President or Vice
President and of a present or any future Secretary or Assistant
Secretary and may be imprinted or otherwise reproduced on the
Debentures and for that purpose the Company may use the facsimile
signature of any person who shall have been a Chairman of the
Board, President or Vice President, or of any person who shall
have been a Secretary or Assistant Secretary, notwithstanding the
fact that at the time the Debentures shall be authenticated and
delivered or disposed of such person shall have ceased to be the
Chairman of the Board, President or a Vice President, or the
Secretary or an Assistant Secretary, of the Company, as the case
may be. The seal of the Company may be in the form of a
facsimile of the seal of the Company and may be impressed,
affixed, imprinted or otherwise reproduced on the Debentures.
Only such Debentures as shall bear thereon a Certificate of
Authentication substantially in the form established for such
Debentures, executed manually by an authorized signatory of the
Trustee, or by any Authenticating Agent with respect to such
Debentures, shall be entitled to the benefits of this Indenture
or be valid or obligatory for any purpose. Such certificate
executed by the Trustee, or by any Authenticating Agent appointed
by the Trustee with respect to such Debentures, upon any
Debenture executed by the Company shall be conclusive evidence
that the Debenture so authenticated has been duly authenticated
and delivered hereunder and that the holder is entitled to the
benefits of this Indenture.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Debentures of
any series executed by the Company to the Trustee for
authentication, together with a written order of the Company for
the authentication and delivery of such Debentures, signed by its
Chairman of the Board, President or any Vice President and its
Treasurer or any Assistant Treasurer, and the Trustee in
accordance with such written order shall authenticate and deliver
such Debentures.
In authenticating such Debentures and accepting the
additional responsibilities under this Indenture in relation to
such Debentures, the Trustee shall be entitled to receive, and
(subject to Section 7.01) shall be fully protected in relying
upon, an Opinion of Counsel stating that the form and terms
thereof have been established in conformity with the provisions
of this Indenture.
The Trustee shall not be required to authenticate such
Debentures if the issue of such Debentures pursuant to this
Indenture will affect the Trustee's own rights, duties or
immunities under the Debentures and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
SECTION 2.05. (a) Debentures of any series may be
exchanged upon presentation thereof at the office or agency of
the Company designated for such purpose, for other Debentures of
such series of authorized denominations, and for a like aggregate
principal amount, upon payment of a sum sufficient to cover any
tax or other governmental charge in relation thereto, all as
provided in this Section. In respect of any Debentures so
surrendered for exchange, the Company shall execute, the Trustee
shall authenticate and such office or agency shall deliver in
exchange therefor the Debenture or Debentures of the same series
which the Debentureholder making the exchange shall be entitled
to receive, bearing numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its
office or agency designated for such purpose in the Borough of
Manhattan, the City and State of New York, or such other location
designated by the Company a register or registers (herein
referred to as the "Debenture Register") in which, subject to
such reasonable regulations as it may prescribe, the Company
shall register the Debentures and the transfers of Debentures as
in this Article provided and which at all reasonable times shall
be open for inspection by the Trustee. The registrar for the
purpose of registering Debentures and transfer of Debentures as
herein provided shall be appointed as authorized by Board
Resolution (the "Debenture Registrar").
Upon surrender for transfer of any Debenture at the office
or agency of the Company designated for such purpose in the
Borough of Manhattan, the City and State of New York, or other
location as aforesaid, the Company shall execute, the Trustee
shall authenticate and such office or agency shall deliver in the
name of the transferee or transferees a new Debenture or
Debentures of the same series as the Debenture presented for a
like aggregate principal amount.
All Debentures presented or surrendered for exchange or
registration of transfer, as provided in this Section, shall be
accompanied (if so required by the Company or the Debenture
Registrar) by a written instrument or instruments of transfer, in
form satisfactory to the Company or the Debenture Registrar, duly
executed by the registered holder or by his duly authorized
attorney in writing.
(c) No service charge shall be made for any exchange or
registration of transfer of Debentures, or issue of new
Debentures in case of partial redemption of any series, but the
Company may require payment of a sum sufficient to cover any tax
or other governmental charge in relation thereto, other than
exchanges pursuant to Section 2.06, Section 3.03(b) and Section
9.04 not involving any transfer.
(d) The Company shall not be required (i) to issue,
exchange or register the transfer of any Debentures during a
period beginning at the opening of business 15 days before the
day of the mailing of a notice of redemption of less than all the
outstanding Debentures of the same series and ending at the close
of business on the day of such mailing, nor (ii) to register the
transfer of or exchange any Debentures of any series or portions
thereof called for redemption. The provisions of this Section
2.05 are, with respect to any Global Debenture, subject to
Section 2.11 hereof.
SECTION 2.06. Pending the preparation of definitive
Debentures of any series, the Company may execute, and the
Trustee shall authenticate and deliver, temporary Debentures
(printed, lithographed or typewritten) of any authorized
denomination, and substantially in the form of the definitive
Debentures in lieu of which they are issued, but with such
omissions, insertions and variations as may be appropriate for
temporary Debentures, all as may be determined by the Company.
Every temporary Debenture of any series shall be executed by the
Company and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like
effect, as the definitive Debentures of such series. Without
unnecessary delay the Company will execute and will furnish
definitive Debentures of such series and thereupon any or all
temporary Debentures of such series may be surrendered in
exchange therefor (without charge to the holders), at the office
or agency of the Company designated for the purpose, and the
Trustee shall authenticate and such office or agency shall
deliver in exchange for such temporary Debentures an equal
aggregate principal amount of definitive Debentures of such
series, unless the Company advises the Trustee to the effect that
definitive Debentures need not be executed and furnished until
further notice from the Company. Until so exchanged, the
temporary Debentures of such series shall be entitled to the same
benefits under this Indenture as definitive Debentures of such
series authenticated and delivered hereunder.
SECTION 2.07. In case any temporary or definitive Debenture
shall become mutilated or be destroyed, lost or stolen, the
Company (subject to the next succeeding sentence) shall execute,
and upon its request the Trustee (subject as aforesaid) shall
authenticate and deliver, a new Debenture of the same series
bearing a number not contemporaneously outstanding, in exchange
and substitution for the mutilated Debenture, or in lieu of and
in substitution for the Debenture so destroyed, lost or stolen.
In every case the applicant for a substituted Debenture shall
furnish to the Company and to the Trustee such security or
indemnity as may be required by them to save each of them
harmless, and, in every case of destruction, loss or theft, the
applicant shall also furnish to the Company and to the Trustee
evidence to their satisfaction of the destruction, loss or theft
of the applicant's Debenture and of the ownership thereof. The
Trustee may authenticate any such substituted Debenture and
deliver the same upon the written request or authorization of any
officer of the Company. Upon the issuance of any substituted
Debenture, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may
be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith. In
case any Debenture which has matured or is about to mature shall
become mutilated or be destroyed, lost or stolen, the Company
may, instead of issuing a substitute Debenture, pay or authorize
the payment of the same (without surrender thereof except in the
case of a mutilated Debenture) if the applicant for such payment
shall furnish to the Company and to the Trustee such security or
indemnity as they may require to save them harmless, and, in case
of destruction, loss or theft, evidence to the satisfaction of
the Company and the Trustee of the destruction, loss or theft of
such Debenture and of the ownership thereof.
Every Debenture issued pursuant to the provisions of this
Section in substitution for any Debenture which is mutilated,
destroyed, lost or stolen shall constitute an additional
contractual obligation of the Company, whether or not the
mutilated, destroyed, lost or stolen Debenture shall be found at
any time, or be enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately
with any and all other Debentures of the same series duly issued
hereunder. All Debentures shall be held and owned upon the
express condition that the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Debentures, and shall preclude (to the
extent lawful) any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted
to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their
surrender.
SECTION 2.08. All Debentures surrendered for the purpose of
payment, redemption, exchange or registration of transfer shall,
if surrendered to the Company or any paying agent, be delivered
to the Trustee for cancellation, or, if surrendered to the
Trustee, shall be canceled by it, and no Debentures shall be
issued in lieu thereof except as expressly required or permitted
by any of the provisions of this Indenture. On request of the
Company, the Trustee shall deliver to the Company canceled
Debentures held by the Trustee. In the absence of such request
the Trustee may dispose of canceled Debentures in accordance with
its standard procedures and deliver a certificate of disposition
to the Company. If the Company shall otherwise acquire any of
the Debentures, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by
such Debentures unless and until the same are delivered to the
Trustee for cancellation.
SECTION 2.09. Nothing in this Indenture or in the
Debentures, express or implied, shall give or be construed to
give to any person, firm or corporation, other than the parties
hereto and the holders of the Debentures, any legal or equitable
right, remedy or claim under or in respect of this Indenture, or
under any covenant, condition or provision herein contained; all
such covenants, conditions and provisions being for the sole
benefit of the parties hereto and of the holders of the
Debentures.
SECTION 2.10. So long as any of the Debentures of any
series remain outstanding there may be an Authenticating Agent
for any or all such series of Debentures which the Trustee shall
have the right to appoint. Said Authenticating Agent shall be
authorized to act on behalf of the Trustee to authenticate
Debentures of such series issued upon exchange, transfer or
partial redemption thereof, and Debentures 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. All references in this Indenture to the
authentication of Debentures by the Trustee shall be deemed to
include authentication by an Authenticating Agent for such series
except for authentication upon original issuance or pursuant to
Section 2.07 hereof. Each Authenticating Agent shall be
acceptable to the Company and shall be a corporation which has a
combined capital and surplus, as most recently reported or
determined by it, sufficient under the laws of any jurisdiction
under which it is organized or in which it is doing business to
conduct a trust business, and which is otherwise authorized under
such laws to conduct such business and is subject to supervision
or examination by Federal or State authorities. If at any time
any Authenticating Agent shall cease to be eligible in accordance
with these provisions it shall resign immediately.
Any Authenticating Agent may at any time resign by giving
written notice of resignation to the Trustee and to the Company.
The Trustee may at any time (and upon request by the Company
shall) terminate the agency of any Authenticating Agent by giving
written notice of termination to such Authenticating Agent and to
the Company. Upon resignation, termination or cessation of
eligibility of any Authenticating Agent, the Trustee may appoint
an eligible successor Authenticating Agent 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 as if
originally named as an Authenticating Agent pursuant hereto.
SECTION 2.11. (a) If the Company shall establish pursuant
to Section 2.01 that the Debentures of a particular series are to
be issued as a Global Debenture, then the Company shall execute
and the Trustee shall, in accordance with Section 2.04,
authenticate and deliver, a Global Debenture which (i) shall
represent, and shall be denominated in an amount equal to the
aggregate principal amount of, all of the Outstanding Debentures
of such series, (ii) shall be registered in the name of the
Depository or its nominee, (iii) shall be delivered by the
Trustee to the Depository or pursuant to the Depository's
instruction and (iv) shall bear a legend substantially to the
following effect: "Except as otherwise provided in Section 2.11
of the Indenture, this Debenture may be transferred, in whole but
not in part, only to another nominee of the Depository or to a
successor Depository or to a nominee of such successor
Depository."
(b) Notwithstanding the provisions of Section 2.05, the
Global Debenture of a series may be transferred, in whole but not
in part and in the manner provided in Section 2.05, only to
another nominee of the Depository for such series, or to a
successor Depository for such series selected or approved by the
Company or to a nominee of such successor Depository.
(c) If at any time the Depository for a series of
Debentures notifies the Company that it is unwilling or unable to
continue as Depository for such series or if at any time the
Depository for such series shall no longer be registered or in
good standing under the Exchange Act, or other applicable statute
or regulation and a successor Depository for such series is not
appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such condition, as the
case may be, this Section 2.11 shall no longer be applicable to
the Debentures of such series and the Company will execute, and
subject to Section 2.05, the Trustee will authenticate and
deliver Debentures of such series in definitive registered form
without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global
Debenture of such series in exchange for such Global Debenture.
In addition, the Company may at any time determine that the
Debentures of any series shall no longer be represented by a
Global Debenture and that the provisions of this Section 2.11
shall no longer apply to the Debentures of such series. In such
event the Company will execute, and subject to Section 2.05, the
Trustee, upon receipt of an Officers' Certificate evidencing such
determination by the Company, will authenticate and deliver
Debentures of such series in definitive registered form without
coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global
Debenture of such series in exchange for such Global Debenture.
Upon the exchange of the Global Debenture for such Debentures in
definitive registered form without coupons, in authorized
denominations, the Global Debenture shall be canceled by the
Trustee. Such Debentures in definitive registered form issued in
exchange for the Global Debenture pursuant to this Section
2.11(c) shall be registered in such names and in such authorized
denominations as the Depository, pursuant to instructions from
its direct or indirect participants or otherwise, shall instruct
the Debenture Registrar. The Trustee shall deliver such
Debentures to the Depository for delivery to the persons in whose
names such Debentures are so registered.
ARTICLE THREE
REDEMPTION OF DEBENTURES AND SINKING FUND PROVISIONS
SECTION 3.01. The Company may redeem the Debentures of any
series issued hereunder on and after the dates and in accordance
with the terms established for such series pursuant to Section
2.01 hereof.
SECTION 3.02. (a) In case the Company shall desire to
exercise such right to redeem all or, as the case may be, a
portion of the Debentures of any series in accordance with the
right reserved so to do, it shall give notice of such redemption
to holders of the Debentures of such series to be redeemed by
mailing, first class postage prepaid, a notice of such redemption
not less than 30 days and not more than 60 days before the date
fixed for redemption of that series to such holders at their last
addresses as they shall appear upon the Debenture Register. Any
notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the
registered holder receives the notice. In any case, failure duly
to give such notice to the holder of any Debenture of any series
designated for redemption in whole or in part, or any defect in
the notice, shall not affect the validity of the proceedings for
the redemption of any other Debentures of such series or any
other series. In the case of any redemption of Debentures prior
to the expiration of any restriction on such redemption provided
in the terms of such Debentures or elsewhere in this Indenture,
the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with any such restriction.
Each such notice of redemption shall specify the date fixed
for redemption and the redemption price at which Debentures of
that series are to be redeemed, and shall state that payment of
the redemption price of such Debentures to be redeemed will be
made at the office or agency of the Company, upon presentation
and surrender of such Debentures, that interest accrued to the
date fixed for redemption will be paid as specified in said
notice, that from and after said date interest will cease to
accrue and that the redemption is for a sinking fund, if such is
the case. If less than all the Debentures of a series are to be
redeemed, the notice to the holders of Debentures of that series
to be redeemed in whole or in part shall specify the particular
Debentures to be so redeemed. In case any Debenture is to be
redeemed in part only, the notice which relates to such Debenture
shall state the portion of the principal amount thereof to be
redeemed, and shall state that on and after the redemption date,
upon surrender of such Debenture, a new Debenture or Debentures
of such series in principal amount equal to the unredeemed
portion thereof will be issued.
(b) If less than all the Debentures of a series are to be
redeemed, the Company shall give the Trustee at least 45 days'
notice in advance of the date fixed for redemption (unless the
Trustee shall agree to a shorter period) as to the aggregate
principal amount of Debentures of the series to be redeemed, and
thereupon the Trustee shall select, by lot or in such other
manner as it shall deem appropriate and fair in its discretion
and which may provide for the selection of a portion or portions
(equal to $25 or any integral multiple thereof, subject to
Section 2.01(10)) of the principal amount of such Debentures of a
denomination larger than $25 (subject as aforesaid), the
Debentures to be redeemed and shall thereafter promptly notify
the Company in writing of the numbers of the Debentures to be
redeemed, in whole or in part.
The Company may, if and whenever it shall so elect, by
delivery of instructions signed on its behalf by its Chairman of
the Board, its President or any Vice President, instruct the
Trustee or any paying agent to call all or any part of the
Debentures of a particular series for redemption and to give
notice of redemption in the manner set forth in this Section,
such notice to be in the name of the Company or its own name as
the Trustee or such paying agent may deem advisable. In any case
in which notice of redemption is to be given by the Trustee or
any such paying agent, the Company shall deliver or cause to be
delivered to, or permit to remain with, the Trustee or such
paying agent, as the case may be, such Debenture Register,
transfer books or other records, or suitable copies or extracts
therefrom, sufficient to enable the Trustee or such paying agent
to give any notice by mail that may be required under the
provisions of this Section.
SECTION 3.03. (a) If the giving of notice of redemption
shall have been completed as above provided, the Debentures or
portions of Debentures of the series to be redeemed specified in
such notice shall become due and payable on the date and at the
place stated in such notice at the applicable redemption price,
together with interest accrued to the date fixed for redemption
and interest on such Debentures or portions of Debentures shall
cease to accrue on and after the date fixed for redemption,
unless the Company shall default in the payment of such
redemption price and accrued interest with respect to any such
Debenture or portion thereof. On presentation and surrender of
such Debentures on or after the date fixed for redemption at the
place of payment specified in the notice, said Debentures shall
be paid and redeemed at the applicable redemption price for such
series, together with interest accrued thereon to the date fixed
for redemption (but if the date fixed for redemption is an
interest payment date, the interest installment payable on such
date shall be payable to the registered holder at the close of
business on the applicable record date pursuant to Section 2.03).
(b) Upon presentation of any Debenture of such series which
is to be redeemed in part only, the Company shall execute and the
Trustee shall authenticate and the office or agency where the
Debenture is presented shall deliver to the holder thereof, at
the expense of the Company, a new Debenture or Debentures of the
same series, of authorized denominations in principal amount
equal to the unredeemed portion of the Debenture so presented.
SECTION 3.04. The provisions of Sections 3.04, 3.05 and
3.06 shall be applicable to any sinking fund for the retirement
of Debentures of a series, except as otherwise specified as
contemplated by Section 2.01 for Debentures of such series.
The minimum amount of any sinking fund payment provided for
by the terms of Debentures 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 Debentures of
any series is herein referred to as an "optional sinking fund
payment". If provided for by the terms of Debentures of any
series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 3.05. Each sinking
fund payment shall be applied to the redemption of Debentures of
any series as provided for by the terms of Debentures of such
series.
SECTION 3.05. The Company (i) may deliver Outstanding
Debentures of a series (other than any previously called for
redemption) and (ii) may apply as a credit Debentures of a series
which have been redeemed either at the election of the Company
pursuant to the terms of such Debentures or through the
application of permitted optional sinking fund payments pursuant
to the terms of such Debentures, in each case in satisfaction of
all or any part of any sinking fund payment with respect to the
Debentures of such series required to be made pursuant to the
terms of such Debentures as provided for by the terms of such
series; provided that such Debentures have not been previously so
credited. Such Debentures shall be received and credited for
such purpose by the Trustee at the redemption price specified in
such Debentures for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 3.06. Not less than 45 days prior to each sinking
fund payment date for any series of Debentures, the Company will
deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if
any, which is to be satisfied by delivering and crediting
Debentures of that series pursuant to Section 3.05 and the basis
for such credit and will, together with such Officers'
Certificate, deliver to the Trustee any Debentures to be so
delivered. Not less than 30 days before each such sinking fund
payment date the Trustee shall select the Debentures to be
redeemed upon such sinking fund payment date in the manner
specified in Section 3.02 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 3.02. Such notice
having been duly given, the redemption of such Debentures shall
be made upon the terms and in the manner stated in Section 3.03.
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
The Company covenants and agrees for each series of the
Debentures as follows:
SECTION 4.01. The Company will duly and punctually pay or
cause to be paid the principal of (and premium, if any) and
interest on the Debentures of that series at the time and place
and in the manner provided herein and established with respect to
such Debentures.
SECTION 4.02. So long as any series of the Debentures
remain outstanding, the Company agrees to maintain an office or
agency, which if such series of Debentures is not outstanding as
a Global Debenture, shall be in the Borough of Manhattan, the
City and State of New York, with respect to each such series and
at such other location or locations as may be designated as
provided in this Section 4.02, where (i) Debentures of that
series may be presented for payment, (ii) Debentures of that
series may be presented as hereinabove authorized for
registration of transfer and exchange, and (iii) notices and
demands to or upon the Company in respect of the Debentures of
that series and this Indenture may be given or served, such
designation to continue with respect to such office or agency
until the Company shall, by written notice signed by its Chairman
of the Board, its President or a Vice President and delivered to
the Trustee, designate some other office or agency for such
purposes or any of them. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations,
notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, notices
and demands.
SECTION 4.03. (a) If the Company shall appoint one or more
paying agents for all or any series of the Debentures, other than
the Trustee, the Company will cause each such paying agent to
execute and deliver to the Trustee an instrument in which such
agent shall agree with the Trustee, subject to the provisions of
this Section:
(1) that it will hold all sums held by it as such
agent for the payment of the principal of (and premium, if
any) or interest on the Debentures of that series (whether
such sums have been paid to it by the Company or by any
other obligor of such Debentures) in trust for the benefit
of the persons entitled thereto;
(2) that it will give the Trustee notice of any
failure by the Company (or by any other obligor of such
Debentures) to make any payment of the principal of (and
premium, if any) or interest on the Debentures of that
series when the same shall be due and payable;
(3) that it will, at any time during the continuance
of any failure referred to in the preceding paragraph (a)(2)
above, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such paying
agent; and
(4) that it will perform all other duties of paying
agent as set forth in this Indenture.
(b) If the Company shall act as its own paying agent with
respect to any series of the Debentures, it will on or before
each due date of the principal of (and premium, if any) or
interest on Debentures of that series, set aside, segregate and
hold in trust for the benefit of the persons entitled thereto a
sum sufficient to pay such principal (and premium, if any) or
interest so becoming due on Debentures of that series until such
sums shall be paid to such persons or otherwise disposed of as
herein provided and will promptly notify the Trustee of such
action, or any failure (by it or any other obligor on such
Debentures) to take such action. Whenever the Company shall have
one or more paying agents for any series of Debentures, it will,
prior to each due date of the principal of (and premium, if any)
or interest on any Debentures of that series, deposit with the
paying agent a sum sufficient to pay the principal (and premium,
if any) 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 will promptly notify the Trustee of its
action or failure so to act.
(c) Anything in this Section to the contrary
notwithstanding, (i) the agreement to hold sums in trust as
provided in this Section is subject to the provisions of Section
11.04, and (ii) the Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for
any other purpose, pay, or 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 terms
and conditions as those upon which such sums were held by the
Company or such paying agent; and, upon such payment by any
paying agent to the Trustee, such paying agent shall be released
from all further liability with respect to such money.
SECTION 4.04. The Company, whenever necessary to avoid or
fill a vacancy in the office of Trustee, will appoint, in the
manner provided in Section 7.10, a Trustee, so that there shall
at all times be a Trustee hereunder.
SECTION 4.05. The Company will not, while any of the
Debentures remain outstanding, consolidate with, or merge into,
or merge into itself, or sell or convey all or substantially all
of its property to any other company unless the provisions of
Article Ten hereof are complied with.
ARTICLE FIVE
DEBENTUREHOLDERS' LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
SECTION 5.01. The Company will furnish or cause to be
furnished to the Trustee (a) on each regular record date (as
defined in Section 2.03) a list, in such form as the Trustee may
reasonably require, of the names and addresses of the holders of
each series of Debentures as of such regular record date,
provided, that the Company shall not be obligated to furnish or
cause to be furnished such list at any time that the list shall
not differ in any respect from the most recent list furnished to
the Trustee by the Company and (b) at such other times as the
Trustee may request in writing within 30 days after the receipt
by the Company of any such request, a list of similar form and
content as of a date not more than 15 days prior to the time such
list is furnished; provided, however, no such list need be
furnished for any series for which the Trustee shall be the
Debenture Registrar.
SECTION 5.02. (a) The Trustee shall preserve, in as
current a form as is reasonably practicable, all information as
to the names and addresses of the holders of Debentures contained
in the most recent list furnished to it as provided in Section
5.01 and as to the names and addresses of holders of Debentures
received by the Trustee in its capacity as Debenture Registrar
(if acting in such capacity).
(b) The Trustee may destroy any list furnished to it as
provided in Section 5.01 upon receipt of a new list so furnished.
(c) In case three or more holders of Debentures of a series
(hereinafter referred to as "applicants") apply in writing to the
Trustee, and furnish to the Trustee reasonable proof that each
such applicant has owned a Debenture for a period of at least six
months preceding the date of such application, and such
application states that the applicants desire to communicate with
other holders of Debentures of such series or holders of all
Debentures with respect to their rights under this Indenture or
under such Debentures, and is accompanied by a copy of the form
of proxy or other communication which such applicants propose to
transmit, then the Trustee shall, within five business days after
the receipt of such application, at its election, either:
(1) afford to such applicants access to the
information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of this
Section 5.02; or
(2) inform such applicants as to the approximate
number of holders of Debentures of such series or of all
Debentures, as the case may be, whose names and addresses
appear in the information preserved at the time by the
Trustee, in accordance with the provisions of subsection (a)
of this Section 5.02, and as to the approximate cost of
mailing to such Debentureholders the form of proxy or other
communication, if any, specified in such application.
(d) If the Trustee shall elect not to afford such
applicants access to such information, the Trustee shall, upon
the written request of such applicants, mail to each holder of
such series or of all Debentures, as the case may be, whose name
and address appears in the information preserved at the time by
the Trustee in accordance with the provisions of subsection (a)
of this Section 5.02, a copy of the form of proxy or other
communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file
with the Securities and Exchange Commission (the "Commission"),
together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interests of the holders of
Debentures of such series or of all Debentures, as the case may
be, or would be in violation of applicable law. Such written
statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections
specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry
of an order sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for hearing,
that all the objections so sustained have been met and shall
enter an order so declaring, the Trustee shall mail copies of
such material to all such Debentureholders with reasonable
promptness after the entry of such order and the renewal of such
tender; otherwise, the Trustee shall be relieved of any
obligation or duty to such applicants respecting their
application.
(e) Each and every holder of the Debentures, by receiving
and holding the same, agrees with the Company and the Trustee
that neither the Company nor the Trustee nor any paying agent nor
any Debenture Registrar shall be held accountable by reason of
the disclosure of any such information as to the names and
addresses of the holders of Debentures in accordance with the
provisions of subsection (c) of this Section, regardless of the
source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under said subsection (c).
SECTION 5.03. (a) The Company covenants and agrees to file
with the Trustee, within 30 days after the Company is required to
file the same with the Commission, a copy of the annual reports
and of the information, documents and other reports (or a copy of
such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the
Company may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act; or, if the
Company is not required to file information, documents or reports
pursuant to either of such sections, then to file with the
Trustee and the Commission, in accordance with the rules and
regulations prescribed from time to time by the Commission, such
of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the
Exchange Act, in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to
time in such rules and regulations.
(b) The Company covenants and agrees to file with the
Trustee and the Commission, in accordance with the rules and
regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants
provided for in this Indenture as may be required from time to
time by such rules and regulations.
(c) The Company covenants and agrees to transmit by mail,
first class postage prepaid, or reputable over-night delivery
service which provides for evidence of receipt, to the
Debentureholders, as their names and addresses appear upon the
Debenture Register, within 30 days after the filing thereof with
the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to
subsections (a) and (b) of this Section as may be required by
rules and regulations prescribed from time to time by the
Commission.
(d) The Company covenants and agrees to furnish to the
Trustee, on or before May 15 in each calendar year in which any
of the Debentures are outstanding, or on or before such other day
in each calendar year as the Company and the Trustee may from
time to time agree upon, a certificate from the principal
executive officer, principal financial officer or principal
accounting officer of the Company as to his or her knowledge of
the Company's compliance with all conditions and covenants under
this Indenture. For purposes of this subsection (d), such
compliance shall be determined without regard to any period of
grace or requirement of notice provided under this Indenture.
SECTION 5.04. (a) On or before July 15 in each year in
which any of the Debentures are outstanding, the Trustee shall
transmit by mail, first class postage prepaid, to the
Debentureholders, as their names and addresses appear upon the
Debenture Register, a brief report dated as of the preceding May
15, with respect to any of the following events which may have
occurred within the previous twelve months (but if no such event
has occurred within such period no report need be transmitted):
(1) any change to its eligibility under Section 7.09,
and its qualifications under Section 7.08;
(2) the creation of or any material change to a
relationship specified in paragraphs (1) through (10) of
Section 310(b) of the Trust Indenture Act;
(3) the character and amount of any advances (and if
the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as
such) which remain unpaid on the date of such report, and
for the reimbursement of which it claims or may claim a lien
or charge, prior to that of the Debentures, on any property
or funds held or collected by it as Trustee if such advances
so remaining unpaid aggregate more than 1/2 of 1% of the
principal amount of the Debentures outstanding on the date
of such report;
(4) any change to the amount, interest rate, and
maturity date of all other indebtedness owing by the
Company, or by any other obligor on the Debentures, to the
Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as
collateral security therefor, except any indebtedness based
upon a creditor relationship arising in any manner described
in Section 7.13;
(5) any change to the property and funds, if any,
physically in the possession of the Trustee as such on the
date of such report;
(6) any release, or release and substitution, of
property subject to the lien of this Indenture (and the
consideration thereof, if any) which it has not previously
reported;
(7) any additional issue of Debentures which the
Trustee has not previously reported; and
(8) any action taken by the Trustee in the performance
of its duties under this Indenture which it has not
previously reported and which in its opinion materially
affects the Debentures or the Debentures of any series,
except any action in respect of a default, notice of which
has been or is to be withheld by it in accordance with the
provisions of Section 6.07.
(b) The Trustee shall transmit by mail, first class postage
prepaid, to the Debentureholders, as their names and addresses
appear upon the Debenture Register, a brief report with respect
to the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making
thereof) made by the Trustee as such since the date of the last
report transmitted pursuant to the provisions of subsection (a)
of this Section (or if no such report has yet been so
transmitted, since the date of execution of this Indenture), for
the reimbursement of which it claims or may claim a lien or
charge prior to that of the Debentures of any series on property
or funds held or collected by it as Trustee, and which it has not
previously reported pursuant to this subsection if such advances
remaining unpaid at any time aggregate more than 10% of the
principal amount of Debentures of such series outstanding at such
time, such report to be transmitted within 90 days after such
time.
(c) A copy of each such report shall, at the time of such
transmission to Debentureholders, be filed by the Trustee with
the Company, with each stock exchange upon which any Debentures
are listed (if so listed) and also with the Commission. The
Company agrees to notify the Trustee when any Debentures become
listed on any stock exchange.
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01. (a) Whenever used herein with respect to
Debentures of a particular series, "Event of Default" means any
one or more of the following events which has occurred and is
continuing:
(1) default in the payment of any installment of
interest upon any of the Debentures of that series, as and
when the same shall become due and payable, and continuance
of such default for a period of 10 days; provided, however,
that a valid extension of an interest payment period by the
Company in accordance with the terms of any indenture
supplemental hereto shall not constitute a default in the
payment of interest for this purpose;
(2) default in the payment of the principal of (or
premium, if any, on) any of the Debentures of that series as
and when the same shall become due and payable whether at
maturity, upon redemption, by declaration or otherwise, or
in any payment required by any sinking or analogous fund
established with respect to that series;
(3) failure on the part of the Company duly to observe
or perform any other of the covenants or agreements on the
part of the Company with respect to that series contained in
such Debentures or otherwise established with respect to
that series of Debentures pursuant to Section 2.01 hereof or
contained in this Indenture (other than a covenant or
agreement which has been expressly included in this
Indenture solely for the benefit of one or more series of
Debentures other than such series) for a period of 90 days
after the date on which written notice of such failure,
requiring the same to be remedied and stating that such
notice is a "Notice of Default" hereunder, shall have been
given to the Company by the Trustee, by registered or
certified mail, or to the Company and the Trustee by the
holders of at least 25% in principal amount of the
Debentures of that series at the time outstanding;
(4) a decree or order by a court having jurisdiction
in the premises shall have been entered adjudging the
Company as bankrupt or insolvent, or approving as properly
filed a petition seeking liquidation or reorganization of
the Company under the Federal Bankruptcy Code or any other
similar applicable Federal or State law, and such decree or
order shall have continued unvacated and unstayed for a
period of 90 consecutive days; or an involuntary case shall
be commenced under such Code in respect of the Company and
shall continue undismissed for a period of 90 consecutive
days or an order for relief in such case shall have been
entered; or a decree or order of a court having jurisdiction
in the premises shall have been entered for the appointment
on the ground of insolvency or bankruptcy of a receiver or
custodian or liquidator or trustee or assignee in bankruptcy
or insolvency of the Company or of its property, or for the
winding up or liquidation of its affairs, and such decree or
order shall have remained in force unvacated and unstayed
for a period of 90 consecutive days; or
(5) the Company shall institute proceedings to be
adjudicated a voluntary bankrupt, or shall consent to the
filing of a bankruptcy proceeding against it, or shall file
a petition or answer or consent seeking liquidation or
reorganization under the Federal Bankruptcy Code or any
other similar applicable Federal or State law, or shall
consent to the filing of any such petition, or shall consent
to the appointment on the ground of insolvency or bankruptcy
of a receiver or custodian or liquidator or trustee or
assignee in bankruptcy or insolvency of it or of its
property, or shall make an assignment for the benefit of
creditors.
(b) In each and every such case, unless the principal of
all the Debentures of that series shall have already become due
and payable, either the Trustee or the holders of not less than
25% in aggregate principal amount of the Debentures of that
series then outstanding hereunder, by notice in writing to the
Company (and to the Trustee if given by such Debentureholders),
may declare the principal of all the Debentures of that series to
be due and payable immediately, and upon any such declaration the
same shall become and shall be immediately due and payable,
anything contained in this Indenture or in the Debentures of that
series or established with respect to that series pursuant to
Section 2.01 hereof to the contrary notwithstanding.
(c) Section 6.01(b), however, is subject to the condition
that if, at any time after the principal of the Debentures of
that series shall have been so declared due and payable, and
before any judgment or decree for the payment of the monies due
shall have been obtained or entered as hereinafter provided, the
Company shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest upon all
the Debentures of that series and the principal of (and premium,
if any, on) any and all Debentures of that series which shall
have become due otherwise than by acceleration (with interest
upon such principal and premium, if any, and, to the extent that
such payment is enforceable under applicable law, upon overdue
installments of interest, at the rate per annum expressed in the
Debentures of that series to the date of such payment or deposit)
and the amount payable to the Trustee under Section 7.06, and any
and all defaults under the Indenture, other than the nonpayment
of principal on Debentures of that series which shall not have
become due by their terms, shall have been remedied or waived as
provided in Section 6.06, then and in every such case the holders
of a majority in aggregate principal amount of the Debentures of
that series then outstanding, by written notice to the Company
and to the Trustee, may rescind and annul such declaration and
its consequences with respect to that series of Debentures; but
no such rescission and annulment shall extend to or shall affect
any subsequent default, or shall impair any right consequent
thereon.
(d) In case the Trustee shall have proceeded to enforce any
right with respect to Debentures of that series under this
Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any
other reason or shall have been determined adversely to the
Trustee, then and in every such case the Company and the Trustee
shall be restored respectively to their former positions and
rights hereunder, and all rights, remedies and powers of the
Company and the Trustee shall continue as though no such
proceedings had been taken.
SECTION 6.02. (a) The Company covenants that (1) in case
default shall be made in the payment of any installment of
interest on any of the Debentures of a series, or any payment
required by any sinking or analogous fund established with
respect to that series as and when the same shall have become due
and payable, and such default shall have continued for a period
of 10 business days, or (2) in case default shall be made in the
payment of the principal of (or premium, if any, on) any of the
Debentures of a series when the same shall have become due and
payable, whether upon maturity of the Debentures of a series or
upon redemption or upon declaration or otherwise, then, upon
demand of the Trustee, the Company will pay to the Trustee, for
the benefit of the holders of the Debentures of that series, the
whole amount that then shall have become due and payable on all
such Debentures for principal (and premium, if any) or interest,
or both, as the case may be, with interest upon the overdue
principal (and premium, if any) and (to the extent that payment
of such interest is enforceable under applicable law and without
duplication of any other amounts paid by the Company in respect
thereof) upon overdue installments of interest at the rate per
annum expressed in the Debentures of that series; and, in
addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, and the amount
payable to the Trustee under Section 7.06.
(b) In case the Company shall fail forthwith to pay such
amounts upon such demand, the Trustee, in its own name and as
trustee of an express trust, shall be entitled and empowered to
institute any action or proceedings at law or in equity for the
collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may
enforce any such judgment or final decree against the Company or
other obligor upon the Debentures of that series and collect in
the manner provided by law out of the property of the Company or
other obligor upon the Debentures of that series wherever
situated the monies adjudged or decreed to be payable.
(c) In case of any receivership, insolvency, liquidation,
bankruptcy, reorganization, readjustment, arrangement,
composition or other judicial proceedings affecting the Company,
any other obligor on such Debentures, or the creditors or
property of either, the Trustee shall have power to intervene in
such proceedings and take any action therein that may be
permitted by the court and shall (except as may be otherwise
provided by law) be entitled to file such proofs of claim and
other papers and documents as may be necessary or advisable in
order to have the claims of the Trustee and of the holders of
Debentures of such series allowed for the entire amount due and
payable by the Company or such other obligor under the Indenture
at the date of institution of such proceedings and for any
additional amount which may become due and payable by the Company
or such other obligor after such date, and to collect and receive
any monies or other property payable or deliverable on any such
claim, and to distribute the same after the deduction of the
amount payable to the Trustee under Section 7.06; and any
receiver, assignee or trustee in bankruptcy or reorganization is
hereby authorized by each of the holders of Debentures of such
series to make such payments to the Trustee, and, in the event
that the Trustee shall consent to the making of such payments
directly to such Debentureholders, to pay to the Trustee any
amount due it under Section 7.06.
(d) All rights of action and of asserting claims under this
Indenture, or under any of the terms established with respect to
Debentures of that series, may be enforced by the Trustee without
the possession of any of such Debentures, or the production
thereof at any trial or other proceeding relative thereto, and
any such suit or 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 payment to the
Trustee of any amounts due under Section 7.06, be for the ratable
benefit of the holders of the Debentures of such series.
In case of an Event of Default hereunder, the Trustee may in
its discretion proceed to protect and enforce the rights vested
in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce
any of such rights, either at law or in equity or in bankruptcy
or otherwise, whether for the specific enforcement of any
covenant or agreement contained in the Indenture or in aid of the
exercise of any power granted in this Indenture, or to enforce
any other legal or equitable right vested in the Trustee by this
Indenture or by law.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf
of any Debentureholder any plan of reorganization, arrangement,
adjustment or composition affecting the Debentures of that series
or the rights of any holder thereof or to authorize the Trustee
to vote in respect of the claim of any Debentureholder in any
such proceeding.
SECTION 6.03. Any monies collected by the Trustee pursuant
to Section 6.02 with respect to a particular series of Debentures
shall be applied in the order following, at the date or dates
fixed by the Trustee and, in case of the distribution of such
monies on account of principal (or premium, if any) or interest,
upon presentation of the several Debentures of that series, and
stamping thereon the payment, if only partially paid, and upon
surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of
collection and of all amounts payable to the Trustee under
Section 7.06;
SECOND: To the payment of the amounts then due and
unpaid upon Debentures of such series for principal (and
premium, if any) and interest, 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 Debentures for principal
(and premium, if any) and interest, respectively; and
THIRD: To the Company.
SECTION 6.04. No holder of any Debenture of any series
shall have any right by virtue or by availing of any provision of
this Indenture to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Indenture
or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless such holder previously shall have given
to the Trustee written notice of an Event of Default and of the
continuance thereof with respect to Debentures of such series
specifying such Event of Default, as hereinbefore provided, and
unless also the holders of not less than 25% in aggregate
principal amount of the Debentures of such series then
outstanding shall have made written request upon the Trustee to
institute such action, suit or proceeding in its own name as
trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby, and
the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity, shall have failed to institute any such
action, suit or proceeding; it being understood and intended, and
being expressly covenanted by the taker and holder of every
Debenture of such series with every other such taker and holder
and the Trustee, that no one or more holders of Debentures of
such series shall have any right in any manner whatsoever by
virtue or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of the holders of any
other of such Debentures, or to obtain or seek to obtain priority
over or preference to any other such holder, or to enforce any
right under this Indenture, except in the manner herein provided
and for the equal, ratable and common benefit of all holders of
Debentures of such series. For the protection and enforcement of
the provisions of this Section, each and every Debentureholder
and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
Notwithstanding any other provisions of this Indenture,
however, the right of any holder of any Debenture to receive
payment of the principal of (and premium, if any) and interest on
such Debenture, as therein provided, on or after the respective
due dates expressed in such Debenture (or in the case of
redemption, on the redemption date), or to institute suit for the
enforcement of any such payment on or after such respective dates
or redemption date, shall not be impaired or affected without the
consent of such holder.
SECTION 6.05. (a) All powers and remedies given by this
Article to the Trustee or to the Debentureholders shall, to the
extent permitted by law, be deemed cumulative and not exclusive
of any others thereof or of any other powers and remedies
available to the Trustee or the holders of the Debentures, by
judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this
Indenture or otherwise established with respect to such
Debentures.
(b) No delay or omission of the Trustee or of any holder of
any of the Debentures to exercise any right or power accruing
upon any Event of Default occurring and continuing as aforesaid
shall impair any such right or power, or shall be construed to be
a waiver of any such default or an acquiescence therein; and,
subject to the provisions of Section 6.04, every power and remedy
given by this Article or by law to the Trustee or to the
Debentureholders may be exercised from time to time, and as often
as shall be deemed expedient, by the Trustee or by the
Debentureholders.
SECTION 6.06. The holders of a majority in aggregate
principal amount of the Debentures of any series at the time
outstanding, determined in accordance with Section 8.04, shall
have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with
respect to such series; provided, however, that such direction
shall not be in conflict with any rule of law or with this
Indenture or unduly prejudicial to the rights of holders of
Debentures of any other series at the time outstanding determined
in accordance with Section 8.04 not parties thereto. Subject to
the provisions of Section 7.01, the Trustee shall have the right
to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer or Officers of the Trustee,
determine that the proceeding so directed would involve the
Trustee in personal liability. The holders of a majority in
aggregate principal amount of the Debentures of any series at the
time outstanding affected thereby, determined in accordance with
Section 8.04, may on behalf of the holders of all of the
Debentures of such series waive any past default in the
performance of any of the covenants contained herein or
established pursuant to Section 2.01 with respect to such series
and its consequences, except a default in the payment of the
principal of, or premium, if any, or interest on, any of the
Debentures of that series as and when the same shall become due
by the terms of such Debentures otherwise than by acceleration
(unless such default has been cured and a sum sufficient to pay
all matured installments of interest and principal otherwise than
by acceleration and any premium has been deposited with the
Trustee (in accordance with Section 6.01(c))) or a call for
redemption of Debentures of that series. Upon any such waiver,
the default covered thereby shall be deemed to be cured for all
purposes of this Indenture and the Company, the Trustee and the
holders of the Debentures of such series shall be restored to
their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
SECTION 6.07. The Trustee shall, within 90 days after the
occurrence of a default with respect to a particular series,
transmit by mail, first class postage prepaid, to the holders of
Debentures of that series, as their names and addresses appear
upon the Debenture Register, notice of all defaults with respect
to that series known to the Trustee, unless such defaults shall
have been cured or waived before the giving of such notice (the
term "defaults" for the purposes of this Section being hereby
defined to be the events specified in subsections (1), (2), (3),
(4) and (5) of Section 6.01(a), not including any periods of
grace provided for therein and irrespective of the giving of
notice provided for by subsection (3) of Section 6.01(a));
provided, that, except in the case of default in the payment of
the principal of (or premium, if any) or interest on any of the
Debentures of that series or in the payment of any sinking or
analogous fund installment established with respect to that
series, the Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive
committee, or a trust committee of directors and/or Responsible
Officers, of the Trustee in good faith determine that the
withholding of such notice is in the interests of the holders of
Debentures of that series; provided further, that in the case of
any default of the character specified in Section 6.01(a)(3) with
respect to Debentures of such series no such notice to the
holders of the Debentures of that series shall be given until at
least 30 days after the occurrence thereof.
The Trustee shall not be deemed to have knowledge of any
default, except (i) a default under subsection (a)(1) or (a)(2)
of Section 6.01 as long as the Trustee is acting as paying agent
for such series of Debentures or (ii) any default as to which the
Trustee shall have received written notice or a Responsible
Officer charged with the administration of this Indenture shall
have obtained written notice.
SECTION 6.08. All parties to this Indenture agree, and each
holder of any Debentures by his or her 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 or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any
Debentureholder, or group of Debentureholders, holding more than
10% in aggregate principal amount of the outstanding Debentures
of any series, or to any suit instituted by any Debentureholder
for the enforcement of the payment of the principal of (or
premium, if any) or interest on any Debenture of such series, on
or after the respective due dates expressed in such Debenture or
established pursuant to this Indenture.
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.01. (a) The Trustee, prior to the occurrence of
an Event of Default with respect to Debentures of a series and
after the curing of all Events of Default with respect to
Debentures of that series which may have occurred, shall
undertake to perform with respect to Debentures of such series
such duties and only such duties as are specifically set forth in
this Indenture, and no implied covenants shall be read into this
Indenture against the Trustee. In case an Event of Default with
respect to Debentures of a series has occurred (which has not
been cured or waived), the Trustee shall exercise with respect to
Debentures of that series such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill
in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
(b) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct,
except that:
(1) prior to the occurrence of an Event of Default
with respect to Debentures of a series and after the curing
or waiving of all such Events of Default with respect to
that series which may have occurred:
(i) the duties and obligations of the Trustee
shall with respect to Debentures of such series be
determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable with
respect to Debentures of such series except for the
performance of such duties and obligations 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 the part of
the Trustee, the Trustee may with respect to Debentures
of such series conclusively rely, as to the truth of
the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any
such certificates or opinions which by any provision
hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to
the requirements of this Indenture;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the
pertinent facts;
(3) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith
in accordance with the direction of the holders of not less
than a majority in principal amount of the Debentures of any
series at the time outstanding 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 Debentures of that series; and
(4) none of the provisions contained in this Indenture
shall require the Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any
of its rights or powers, if the Trustee reasonably believes
that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Indenture
or adequate indemnity against such risk is not reasonably
assured to it.
SECTION 7.02. Except as otherwise provided in Section 7.01:
(a) The Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, security or other paper or document
believed by it (i) to be genuine and (ii) to have been signed or
presented by the proper party or parties;
(b) Any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Board
Resolution or an instrument signed in the name of the Company by
the Chairman of the Board, the President or any Vice President
and by the Secretary or an Assistant Secretary or the Treasurer
or an Assistant Treasurer (unless other evidence in respect
thereof is specifically prescribed herein);
(c) 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 or suffered or omitted hereunder in good faith and
in reliance thereon;
(d) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request, order or direction of any of the Debentureholders,
pursuant to the provisions of this Indenture, unless such
Debentureholders shall have offered to the Trustee security or
indemnity satisfactory to it against the costs, expenses and
liabilities which may be incurred therein or thereby; nothing
herein contained shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default with
respect to a series of the Debentures (which has not been cured
or waived) to exercise with respect to Debentures of that series
such of the rights and powers vested in it by this Indenture, and
to use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the
conduct of his own affairs;
(e) The Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred
upon it by this Indenture;
(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, consent, order, approval, bond, security, or other
papers or documents, unless requested in writing so to do by the
holders of not less than a majority in principal amount of the
outstanding Debentures of the particular series affected thereby
(determined as provided in Section 8.04); provided, however, that
if the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee,
not reasonably assured to the Trustee by the security afforded to
it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such costs, expenses or liabilities
as a condition to so proceeding. The reasonable expense of every
such examination shall be paid by the Company or, if paid by the
Trustee, shall be repaid by the Company upon demand; and
(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.
SECTION 7.03. (a) The recitals contained herein and in the
Debentures (other than the Certificate of Authentication on the
Debentures) shall be taken as the statements of the Company, and
the Trustee assumes no responsibility for the correctness of the
same.
(b) The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Debentures.
(c) The Trustee shall not be accountable for the use or
application by the Company of any of the Debentures or of the
proceeds of such Debentures, or for the use or application of any
monies paid over by the Trustee in accordance with any provision
of this Indenture or established pursuant to Section 2.01, or for
the use or application of any monies received by any paying agent
other than the Trustee.
SECTION 7.04. The Trustee or any paying agent or Debenture
Registrar, in its individual or any other capacity, may become
the owner or pledgee of Debentures with the same rights it would
have if it were not Trustee, paying agent or Debenture Registrar.
SECTION 7.05. Subject to the provisions of Section 11.04,
all monies received by the Trustee shall, until used or applied
as herein provided, be held in trust for the purposes for which
they were received, but 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 monies received by it hereunder
except such as it may agree with the Company to pay thereon.
SECTION 7.06. (a) The Company covenants and agrees to pay
to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation (which shall not be limited
by any provision of law in regard to the compensation of a
trustee of an express trust) for all services rendered by it in
the execution of the trusts hereby created and in the exercise
and performance of any of the powers and duties hereunder of the
Trustee, and the Company will pay or reimburse the Trustee upon
its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any
of the provisions of this Indenture (including the reasonable
compensation and the reasonable expenses and disbursements of its
counsel and of all persons not regularly in its employ) except
any such expense, disbursement or advance as may arise from its
negligence or bad faith. The Company also covenants to indemnify
the Trustee (and its officers, agents, directors and employees)
for, and to hold it harmless against, any loss, liability or
expense incurred without negligence, willful misconduct or bad
faith on the part of the Trustee and arising out of or in
connection with the acceptance or administration of this trust,
including the reasonable costs and expenses of defending itself
against any claim of liability in the premises.
(b) The obligations of the Company under this Section to
compensate and indemnify the Trustee and to pay or reimburse the
Trustee for expenses, disbursements and advances shall constitute
additional indebtedness hereunder. Such additional indebtedness
shall be secured by a lien prior to that of the Debentures upon
all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the holders of
particular Debentures.
SECTION 7.07. Except as otherwise provided in Section 7.01,
whenever in the administration of the provisions of this
Indenture the Trustee shall deem it necessary or desirable that a
matter be proved or established prior to taking or suffering or
omitting to take any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed)
may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by
an Officers' Certificate delivered to the Trustee and such
certificate, in the absence of negligence or bad faith on the
part of the Trustee, shall be full warrant to the Trustee for any
action taken, suffered or omitted to be taken by it under the
provisions of this Indenture upon the faith thereof.
SECTION 7.08. If the Trustee has or shall acquire a
conflicting interest within the meaning of the Trust Indenture
Act, the Trustee shall either eliminate such interest or resign,
to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture.
SECTION 7.09. There shall at all times be a Trustee with
respect to the Debentures issued hereunder which shall at all
times be a corporation organized and doing business under the
laws of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or other
person permitted to act as trustee by the Commission, authorized
under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least 50 million dollars, and
subject to supervision or examination by Federal, State,
Territorial, or District of Columbia authority. If such
corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid
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. The
Company may not, nor may any person directly or indirectly
controlling, controlled by, or under common control with the
Company, serve as Trustee. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and
with the effect specified in Section 7.10.
SECTION 7.10. (a) The Trustee or any successor hereafter
appointed, may at any time resign with respect to the Debentures
of one or more series by giving written notice thereof to the
Company and by transmitting notice of resignation by mail, first
class postage prepaid, to the Debentureholders of such series, as
their names and addresses appear upon the Debenture Register.
Upon receiving such notice of resignation, the Company shall
promptly appoint a successor trustee with respect to Debentures
of such series by written instrument, in duplicate, executed by
order of the Board of Directors, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the
successor trustee. If no successor trustee shall have been so
appointed and have accepted appointment within 30 days after the
mailing 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 Debentures of such series,
or any Debentureholder of that series who has been a bona fide
holder of a Debenture or Debentures for at least six months may,
subject to the provisions of Section 6.08, on behalf of himself
and all others similarly situated, petition any such court for
the appointment of a successor trustee. Such court may thereupon
after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the
provisions of Section 7.08 after written request therefor by
the Company or by any Debentureholder who has been a bona
fide holder of a Debenture or Debentures for at least six
months; or
(2) The Trustee shall cease to be eligible in
accordance with the provisions of Section 7.09 and shall
fail to resign after written request therefor by the Company
or by any such Debentureholder; or
(3) the Trustee shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or a receiver of
the Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, the Company may remove the Trustee with
respect to all Debentures and appoint a successor trustee by
written instrument, in duplicate, executed by order of the Board
of Directors, one copy of which instrument shall be delivered to
the Trustee so removed and one copy to the successor trustee, or,
subject to the provisions of Section 6.08, unless the Trustee's
duty to resign is stayed as provided herein, any Debentureholder
who has been a bona fide holder of a Debenture or Debentures 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 and the appointment of a successor
trustee. Such court may thereupon after such notice, if any, as
it may deem proper and prescribe, remove the Trustee and appoint
a successor trustee.
(c) The holders of a majority in aggregate principal amount
of the Debentures of any series at the time outstanding may at
any time remove the Trustee with respect to such series and
appoint a successor trustee.
(d) Any resignation or removal of the Trustee and
appointment of a successor trustee with respect to the Debentures
of a series pursuant to any of the provisions of this Section
shall become effective upon acceptance of appointment by the
successor trustee as provided in Section 7.11.
(e) Any successor trustee appointed pursuant to this
Section may be appointed with respect to the Debentures of one or
more series or all of such series, and at any time there shall be
only one Trustee with respect to the Debentures of any particular
series.
SECTION 7.11. (a) In case of the appointment hereunder of
a successor trustee with respect to all Debentures, every such
successor trustee so appointed shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such
successor trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the
Company or the successor trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument
transferring to such successor trustee all the rights, powers,
and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor trustee all property and
money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
trustee with respect to the Debentures of one or more (but not
all) series, the Company, the retiring Trustee and each successor
trustee with respect to the Debentures of one or more series
shall execute and deliver an indenture supplemental hereto
wherein each successor trustee shall accept such appointment and
which (1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each
successor trustee all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Debentures of that or
those series to which the appointment of such successor trustee
relates, (2) 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
Debentures of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in
such supplemental indenture shall constitute such Trustees
co-trustees of the same trust, 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 that no Trustee shall be responsible for any act or
failure to act on the part of any other Trustee hereunder; 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, such retiring Trustee
shall with respect to the Debentures of that or those series to
which the appointment of such successor trustee relates have no
further responsibility for the exercise of rights and powers or
for the performance of the duties and obligations vested in the
Trustee under this Indenture, 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 Debentures of that or those series to
which the appointment of such successor trustee relates; but, on
request of the Company or any successor trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor
trustee, to the extent contemplated by such supplemental
indenture, the property and money held by such retiring Trustee
hereunder with respect to the Debentures of that or those series
to which the appointment of such successor trustee relates.
(c) Upon request of any such successor trustee, the Company
shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor trustee all
such rights, powers and trusts referred to in paragraph (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.
(e) Upon acceptance of appointment by a successor trustee
as provided in this Section, the Company shall transmit notice of
the succession of such trustee hereunder by mail, first class
postage prepaid, to the Debentureholders, as their names and
addresses appear upon the Debenture Register. If the Company
fails to transmit such notice within ten days after acceptance of
appointment by the successor trustee, the successor trustee shall
cause such notice to be transmitted at the expense of the
Company.
SECTION 7.12. 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 the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be qualified under the provisions
of Section 7.08 and eligible under the provisions of Section
7.09, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding. In case any Debentures 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 Debentures so authenticated with the same effect as
if such successor Trustee had itself authenticated such
Debentures.
SECTION 7.13. If and when the Trustee shall become a
creditor of the Company (or any other obligor upon the
Debentures), the Trustee shall be subject to the provisions of
the Trust Indenture Act regarding collection of claims against
the Company (or any obligor upon the Debentures).
ARTICLE EIGHT
CONCERNING THE DEBENTUREHOLDERS
SECTION 8.01. Whenever in this Indenture it is provided that
the holders of a majority or specified percentage in aggregate
principal amount of the Debentures of a particular series may
take any action (including the making of any demand or request,
the giving of any notice, consent or waiver or the taking of any
other action), the fact that at the time of taking any such
action the holders of such majority or specified percentage of
that series have joined therein may be evidenced by any
instrument or any number of instruments of similar tenor executed
by such holders of Debentures of that series in person or by
agent or proxy appointed in writing.
If the Company shall solicit from the Debentureholders of
any series any request, demand, authorization, direction, notice,
consent, waiver or other action, the Company may, at its option,
as evidenced by an Officers' Certificate, fix in advance a record
date for such series for the determination of Debentureholders
entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other action, 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 action may be given before or after the record
date, but only the Debentureholders of record at the close of
business on the record date shall be deemed to be
Debentureholders for the purposes of determining whether
Debentureholders of the requisite proportion of outstanding
Debentures of that series have authorized or agreed or consented
to such request, demand, authorization, direction, notice,
consent, waiver or other action, and for that purpose the
outstanding Debentures of that series shall be computed as of the
record date; provided that no such authorization, agreement or
consent by such Debentureholders on the record date shall be
deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the
record date.
SECTION 8.02. Subject to the provisions of Section 7.01,
proof of the execution of any instrument by a Debentureholder
(such proof will not require notarization) or his agent or proxy
and proof of the holding by any person of any of the Debentures
shall be sufficient if made in the following manner:
(a) The fact and date of the execution by any such person
of any instrument may be proved in any reasonable manner
acceptable to the Trustee.
(b) The ownership of Debentures shall be proved by the
Debenture Register of such Debentures or by a certificate of the
Debenture Registrar thereof.
(c) The Trustee may require such additional proof of any
matter referred to in this Section as it shall deem necessary.
SECTION 8.03. Prior to the due presentment for registration
of transfer of any Debenture, the Company, the Trustee, any
paying agent and any Debenture Registrar may deem and treat the
person in whose name such Debenture shall be registered upon the
books of the Company as the absolute owner of such Debenture
(whether or not such Debenture shall be overdue and
notwithstanding any notice of ownership or writing thereon made
by anyone other than the Debenture Registrar) for the purpose of
receiving payment of or on account of the principal of, premium,
if any, and (subject to Section 2.03) interest on such Debenture
and for all other purposes; and neither the Company nor the
Trustee nor any paying agent nor any Debenture Registrar shall be
affected by any notice to the contrary.
SECTION 8.04. In determining whether the holders of the
requisite aggregate principal amount of Debentures of a
particular series have concurred in any direction, consent or
waiver under this Indenture, Debentures of that series which are
owned by the Company or any other obligor on the Debentures of
that series or by any person directly or indirectly controlling
or controlled by or under common control with the Company or any
other obligor on the Debentures of that series shall be
disregarded and deemed not to be outstanding for the purpose of
any such determination, except that for the purpose of
determining whether the Trustee shall be protected in relying on
any such direction, consent or waiver, only Debentures of such
series which the Trustee actually knows are so owned shall be so
disregarded. Debentures so owned which have been pledged in good
faith may be regarded as outstanding for the purposes of this
Section, if the pledgee shall establish to the satisfaction of
the Trustee the pledgee's right so to act with respect to such
Debentures and that the pledgee is not a person directly or
indirectly controlling or controlled by or under direct or
indirect common control with the Company or any such other
obligor. In case of a dispute as to such right, any decision by
the Trustee taken upon the advice of counsel shall be full
protection to the Trustee.
SECTION 8.05. At any time prior to (but not after) the
evidencing to the Trustee, as provided in Section 8.01, of the
taking of any action by the holders of the majority or percentage
in aggregate principal amount of the Debentures of a particular
series specified in this Indenture in connection with such
action, any holder of a Debenture of that series which is shown
by the evidence to be included in the Debentures the holders of
which have consented to such action may, by filing written notice
with the Trustee, and upon proof of holding as provided in
Section 8.02, revoke such action so far as concerns such
Debenture. Except as aforesaid any such action taken by the
holder of any Debenture shall be conclusive and binding upon such
holder and upon all future holders and owners of such Debenture,
and of any Debenture issued in exchange therefor, on registration
of transfer thereof or in place thereof, irrespective of whether
or not any notation in regard thereto is made upon such
Debenture. Any action taken by the holders of the majority or
percentage in aggregate principal amount of the Debentures of a
particular series specified in this Indenture in connection with
such action shall be conclusively binding upon the Company, the
Trustee and the holders of all the Debentures of that series.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. In addition to any supplemental indenture
otherwise authorized by this Indenture, the Company, when
authorized by a Board Resolution, and the Trustee may from time
to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as then in effect), without the consent of
the Debentureholders, for one or more of the following purposes:
(a) to evidence the succession of another corporation to
the Company, and the assumption by any such successor of the
covenants of the Company contained herein or otherwise
established with respect to the Debentures; or
(b) to add to the covenants of the Company such further
covenants, restrictions, conditions or provisions for the
protection of the holders of the Debentures of all or any series
as the Board of Directors shall consider to be for the protection
of the holders of Debentures of all or any series, and to make
the occurrence, or the occurrence and continuance, of a default
in any of such additional covenants, restrictions, conditions or
provisions a default or an Event of Default with respect to such
series permitting the enforcement of all or any of the several
remedies provided in this Indenture as herein set forth;
provided, however, that in respect of any such additional
covenant, restriction, condition or provision such supplemental
indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed
in the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available
to the Trustee upon such default or may limit the right of the
holders of a majority in aggregate principal amount of the
Debentures of such series to waive such default; or
(c) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which
may be defective or inconsistent with any other provision
contained herein or in any supplemental indenture, or to make
such other provisions in regard to matters or questions arising
under this Indenture as shall not be inconsistent with the
provisions of this Indenture and shall not adversely affect the
interests of the holders of the Debentures of any series; or
(d) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall
become effective only when there is no Debenture outstanding of
any series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision.
The Trustee is hereby authorized to join with the Company in
the execution of any such supplemental indenture, and to make any
further appropriate agreements and stipulations which may be
therein contained, but the Trustee shall not be obligated to
enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture
or otherwise.
Any supplemental indenture authorized by the provisions of
this Section may be executed by the Company and the Trustee
without the consent of the holders of any of the Debentures at
the time outstanding, notwithstanding any of the provisions of
Section 9.02.
SECTION 9.02. With the consent (evidenced as provided in
Section 8.01) of the holders of not less than a majority in
aggregate principal amount of the Debentures of each series
affected by such supplemental indenture or indentures at the time
outstanding, the Company, when authorized by a Board Resolution,
and the Trustee may from time to time and at any time enter into
an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act as then in
effect) for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any
manner the rights of the holders of the Debentures of such series
under this Indenture; provided, however, that no such
supplemental indenture shall (i) extend the fixed maturity of any
Debentures of any series, or reduce the principal amount thereof,
or reduce the rate or extend the time of payment of interest
thereon, or reduce any premium payable upon the redemption
thereof, without the consent of the holder of each Debenture so
affected or (ii) reduce the aforesaid percentage of Debentures,
the holders of which are required to consent to any such
supplemental indenture, without the consent of the holders of
each Debenture then outstanding and affected thereby.
Upon the request of the Company, accompanied by a Board
Resolution authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of
the consent of Debentureholders required to consent thereto as
aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental
indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may
in its discretion but shall not be obligated to enter into such
supplemental indenture.
It shall not be necessary for the consent of the
Debentureholders of any series affected thereby under this
Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such
consent shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee
of any supplemental indenture pursuant to the provisions of this
Section, the Trustee shall transmit by mail, first class postage
prepaid, a notice, setting forth in general terms the substance
of such supplemental indenture, to the Debentureholders of all
series affected thereby as their names and addresses appear upon
the Debenture Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
SECTION 9.03. Upon the execution of any supplemental
indenture pursuant to the provisions of this Article or of
Section 10.01, this Indenture shall, with respect to such series,
be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the
Trustee, the Company and the holders of Debentures of the series
affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 9.04. Debentures of any series, affected by a
supplemental indenture, authenticated and delivered after the
execution of such supplemental indenture pursuant to the
provisions of this Article or of Section 10.01, may bear a
notation in form approved by the Company, provided such form
meets the requirements of any exchange upon which such series may
be listed, as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Debentures of
that series so modified as to conform, in the opinion of the
Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by
the Company, authenticated by the Trustee and delivered in
exchange for the Debentures of that series then outstanding.
SECTION 9.05. The Trustee, subject to the provisions of
Section 7.01, may receive an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant to
this Article is authorized or permitted by, and conforms to, the
terms of this Article and that it is proper for the Trustee under
the provisions of this Article to join in the execution thereof.
ARTICLE TEN
CONSOLIDATION, MERGER AND SALE
SECTION 10.01. Nothing contained in this Indenture or in any
of the Debentures shall prevent any consolidation or merger of
the Company with or into any other corporation or corporations
(whether or not affiliated with the Company), or successive
consolidations or mergers in which the Company or its successor
or successors shall be a party or parties, or shall prevent any
sale, conveyance, transfer or other disposition of the property
of the Company or its successor or successors as an entirety, or
substantially as an entirety, to any other corporation (whether
or not affiliated with the Company or its successor or
successors) authorized to acquire and operate the same; provided,
however, the Company hereby covenants and agrees that, upon any
such consolidation, merger, sale, conveyance, transfer or other
disposition, the due and punctual payment of the principal of
(premium, if any) and interest on all of the Debentures of all
series in accordance with the terms of each series, according to
their tenor, and the due and punctual performance and observance
of all the covenants and conditions of this Indenture with
respect to each series or established with respect to such series
pursuant to Section 2.01 to be kept or performed by the Company,
shall be expressly assumed, by supplemental indenture (which
shall conform to the provisions of the Trust Indenture Act as
then in effect) satisfactory in form to the Trustee executed and
delivered to the Trustee by the entity formed by such
consolidation, or into which the Company shall have been merged,
or by the entity which shall have acquired such property.
SECTION 10.02. (a) In case of any such consolidation,
merger, sale, conveyance, transfer or other disposition and upon
the assumption by the successor corporation, by supplemental
indenture, executed and delivered to the Trustee and satisfactory
in form to the Trustee, of the due and punctual payment of the
principal of, premium, if any, and interest on all of the
Debentures of all series outstanding and the due and punctual
performance of all of the covenants and conditions of this
Indenture or established with respect to each series of the
Debentures pursuant to Section 2.01 to be performed by the
Company with respect to each series, such successor corporation
shall succeed to and be substituted for the Company, with the
same effect as if it had been named herein as the party of the
first part, and thereupon the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture
and the Debentures. Such successor corporation thereupon may
cause to be signed, and may issue either in its own name or in
the name of the Company or any other predecessor obligor on the
Debentures, any or all of the Debentures issuable hereunder which
theretofore shall not have been signed by the Company and
delivered to the Trustee; and, upon the order of such successor
company, instead of the Company, and subject to all the terms,
conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver any Debentures which
previously shall have been signed and delivered by the officers
of the predecessor Company to the Trustee for authentication, and
any Debentures which such successor corporation thereafter shall
cause to be signed and delivered to the Trustee for that purpose.
All the Debentures so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Debentures
theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Debentures had been issued
at the date of the execution hereof.
(b) In case of any such consolidation, merger, sale,
conveyance, transfer or other disposition such changes in
phraseology and form (but not in substance) may be made in the
Debentures thereafter to be issued as may be appropriate.
(c) Nothing contained in this Indenture or in any of the
Debentures shall prevent the Company from merging into itself or
acquiring by purchase or otherwise all or any part of the
property of any other corporation (whether or not affiliated with
the Company).
SECTION 10.03. The Trustee, subject to the provisions of
Section 7.01, may receive an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, conveyance,
transfer or other disposition, and any such assumption, comply
with the provisions of this Article.
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONIES
SECTION 11.01. If at any time: (a) the Company shall have
delivered to the Trustee for cancellation all Debentures of a
series theretofore authenticated (other than any Debentures which
shall have been destroyed, lost or stolen and which shall have
been replaced or paid as provided in Section 2.07 and Debentures
for whose payment money has theretofore been deposited in trust
or segregated and held in trust by the Company and thereupon
repaid to the Company or discharged from such trust, as provided
in Section 11.04); or (b) the Company shall deposit or cause to
be deposited with the Trustee as trust funds (i) the entire
amount in monies or Governmental Obligations or (ii) a
combination of monies and Governmental Obligations, sufficient in
the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof
delivered to the Trustee, to pay at maturity or upon redemption
under arrangements satisfactory to the Trustee for the giving of
notice of redemption, all Debentures of a particular series not
theretofore delivered to the Trustee for cancellation, including
principal (and premium, if any) and interest due or to become due
to their date of maturity or date fixed for redemption, as the
case may be, and if such deposit shall be made prior to the
stated maturity date of the Debentures of that series, the
Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that the holders of such Debentures will not
recognize gain, loss or income for federal income tax purposes as
a result of the satisfaction and discharge of this Indenture with
respect to such series 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 not occurred, and if the Company shall also pay or
cause to be paid all other sums payable hereunder with respect to
such series by the Company, then this Indenture shall thereupon
cease to be of further effect with respect to such series except
for the provisions of Sections 2.05, 2.07, 4.02 and 7.10, which
shall survive until the date of maturity or redemption date, as
the case may be, and Sections 7.06 and 11.04 which shall survive
to such date and thereafter, and the Trustee, on demand of the
Company and at the cost and expense of the Company, shall execute
proper instruments acknowledging satisfaction of and discharging
this Indenture with respect to such series.
SECTION 11.02. All monies or Governmental Obligations
deposited with the Trustee pursuant to Sections 11.01 or 11.02
shall be held in trust and shall be available for payment as due,
either directly or through any paying agent (including the
Company acting as its own paying agent), to the holders of the
particular series of Debentures for the payment or redemption of
which such monies or Governmental Obligations have been deposited
with the Trustee.
SECTION 11.03. In connection with the satisfaction and
discharge of this Indenture all monies or Governmental
Obligations then held by any paying agent under the provisions of
this Indenture shall, upon demand of the Company, be paid to the
Trustee and thereupon such paying agent shall be released from
all further liability with respect to such monies or Governmental
Obligations.
SECTION 11.04. Any monies or Governmental Obligations
deposited with any paying agent or the Trustee, or then held by
the Company, in trust for payment of principal of or premium or
interest on the Debentures of a particular series that are not
applied but remain unclaimed by the holders of such Debentures
for at least two years after the date upon which the principal of
(and premium, if any) or interest on such Debentures shall have
respectively become due and payable, upon the written request of
the Company and unless otherwise required by mandatory provisions
of applicable escheat or abandoned or unclaimed property law,
shall be repaid to the Company on May 31 of each year or (if then
held by the Company) shall be discharged from such trust; and
thereupon the paying agent and the Trustee shall be released from
all further liability with respect to such monies or Governmental
Obligations, and the holder of any of the Debentures entitled to
receive such payment shall thereafter, as an unsecured general
creditor, look only to the Company for the payment thereof.
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 12.01. No recourse under or upon any obligation,
covenant or agreement of this Indenture, or of any Debenture, or
for any claim based thereon or otherwise in respect thereof,
shall be had against any incorporator, stockholder, officer or
director, past, present or future as such, of the Company or of
any predecessor or successor corporation, either directly or
through the Company or any such predecessor or successor
corporation, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty
or otherwise; it being expressly understood that this Indenture
and the obligations issued hereunder are solely corporate
obligations, and that no such personal liability whatever shall
attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors as such, of the Company or of
any predecessor or successor corporation, or any of them, because
of the creation of the indebtedness hereby authorized, or under
or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Debentures or
implied therefrom; and that any and all such personal liability
of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and
claims against, every such incorporator, stockholder, officer or
director as such, because of the creation of the indebtedness
hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of
the Debentures or implied therefrom, are hereby expressly waived
and released as a condition of, and as a consideration for, the
execution of this Indenture and the issuance of such Debentures.
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
SECTION 13.01. All the covenants, stipulations, promises and
agreements in this Indenture contained by or on behalf of the
Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 13.02. Any act or proceeding by any provision of
this Indenture authorized or required to be done or performed by
any board, committee or officer of the Company shall and may be
done and performed with like force and effect by the
corresponding board, committee or officer of any corporation that
shall at the time be the lawful sole successor of the Company.
SECTION 13.03. The Company by instrument in writing executed
by authority of two-thirds of its Board of Directors and
delivered to the Trustee may surrender any of the powers reserved
to the Company and thereupon such power so surrendered shall
terminate both as to the Company and as to any successor
corporation.
SECTION 13.04. Except as otherwise expressly provided herein
any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by
the holders of Debentures to or on the Company may be given or
served by being deposited first class postage prepaid in a post
office letter box addressed (until another address is filed in
writing by the Company with the Trustee), as follows: Columbus
Southern Power Company, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx
00000, Attention: President; with a copy to American Electric
Power Service Corporation, 0 Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxxx
00000, Attention: Vice President-Finance. Any notice, election,
request or demand by the Company or any Debentureholder to or
upon the Trustee shall be deemed to have been sufficiently given
or made, for all purposes, if given or made in writing at the
Corporate Trust Office of the Trustee.
SECTION 13.05. This Indenture and each Debenture shall be
deemed to be a contract made under the laws of the State of New
York, and for all purposes shall be construed in accordance with
the laws of said State.
SECTION 13.06. (a) Upon any application or demand by the
Company to the Trustee to take any action under any of the
provisions of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent
have been complied with, except that in the case of any such
application or demand as to which the furnishing of such
documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.
(b) Each certificate or opinion provided for in this
Indenture and delivered to the Trustee with respect to compliance
with a condition or covenant in this Indenture (other than the
certificate provided pursuant to Section 5.03(d) of this
Indenture) shall include (1) a statement that the person making
such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based; (3)
a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and (4) a statement as to
whether or not, in the opinion of such person, such condition or
covenant has been complied with.
SECTION 13.07. Except as provided pursuant to Section 2.01
pursuant to a Board Resolution, and as set forth in an Officers'
Certificate, or established in one or more indentures
supplemental to this Indenture, in any case where the date of
maturity of interest or principal of any Debenture or the date of
redemption of any Debenture shall not be a business day then
payment of interest or principal (and premium, if any) may be
made on the next succeeding business day with the same force and
effect as if made on the nominal date of maturity or redemption,
and no interest shall accrue for the period after such nominal
date.
SECTION 13.08. If and to the extent that any provision of
this Indenture limits, qualifies or conflicts with the duties
imposed by the Trust Indenture Act, such imposed duties shall
control.
SECTION 13.09. This Indenture may be executed in any number
of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same
instrument.
SECTION 13.10. In case any one or more of the provisions
contained in this Indenture or in the Debentures of any series
shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this
Indenture or of such Debentures, but this Indenture and such
Debentures shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or
therein.
SECTION 13.11. The Company will have the right at all times
to assign any of its rights or obligations under the Indenture to
a direct or indirect wholly owned Subsidiary of the Company;
provided that, in the event of any such assignment, the Company
will remain liable for all such obligations. Subject to the
foregoing, this Indenture is binding upon and inures to the
benefit of the parties thereto and their respective successors
and assigns. This Indenture may not otherwise be assigned by the
parties thereto.
ARTICLE FOURTEEN
SUBORDINATION OF DEBENTURES
SECTION 14.01. The Company covenants and agrees, and each
holder of Debentures issued hereunder by his acceptance thereof
likewise covenants and agrees, that all Debentures shall be
issued subject to the provisions of this Article Fourteen; and
each holder of a Debenture, whether upon original issue or upon
transfer or assignment thereof, accepts and agrees to be bound by
such provisions.
The payment of the principal of, premium, if any, and
interest on all Debentures issued hereunder shall, to the extent
and in the manner hereinafter set forth, be subordinated and
subject in right of payment to the prior payment in full of all
Senior Indebtedness, whether outstanding at the date of this
Indenture or thereafter incurred.
No provision of this Article Fourteen shall prevent the
occurrence of any default or Event of Default hereunder.
SECTION 14.02. In the event and during the continuation of
any default in the payment of principal, premium, interest or any
other payment due on any Senior Indebtedness continuing beyond
the period of grace, if any, specified in the instrument
evidencing such Senior Indebtedness, unless and until such
default shall have been cured or waived or shall have ceased to
exist, or in the event that the maturity of any Senior
Indebtedness has been accelerated because of a default, then, in
either case, no payment shall be made by the Company with respect
to the principal (including redemption and sinking fund payments)
of, or premium, if any, or interest on the Debentures.
In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee or any holder when such
payment is prohibited by the preceding paragraph of this Section
14.02, such payment shall be held in trust for the benefit of,
and shall be paid over or delivered to, the holders of Senior
Indebtedness or their respective representatives, or to the
trustee or trustees under any indenture pursuant to which any of
such Senior Indebtedness may have been issued, as their
respective interests may appear, but only to the extent that the
holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee within 90 days
of such payment of the amounts then due and owing on the Senior
Indebtedness and only the amounts specified in such notice to the
Trustee shall be paid to the holders of Senior Indebtedness.
SECTION 14.03. Upon any payment by the Company, or
distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to creditors upon any
dissolution or winding-up or liquidation or reorganization of the
Company, whether voluntary or involuntary or in bankruptcy,
insolvency, receivership or other proceedings, all amounts due or
to become due upon all Senior Indebtedness shall first be paid in
full, or payment thereof provided for in money in accordance with
its terms, before any payment is made on account of the principal
(and premium, if any) or interest on the Debentures; and upon any
such dissolution or winding-up or liquidation or reorganization
any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or
securities, to which the holders of the Debentures or the Trustee
would be entitled, except for the provisions of this Article
Fourteen, shall by paid by the Company or by any receiver,
trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, or by the holders of the
Debentures or by the Trustee under this Indenture if received by
them or it, directly to the holders of Senior Indebtedness (pro
rata to such holders on the basis of the respective amounts of
Senior Indebtedness held by such holders, as calculated by the
Company) or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any
instruments evidencing any Senior Indebtedness may have been
issued, as their respective interests may appear, to the extent
necessary to pay all Senior Indebtedness in full, in money or
money's worth, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness, before
any payment or distribution is made to the holders of Debentures
or to the Trustee.
In the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, prohibited by
the foregoing, shall be received by the Trustee or the holders of
the Debentures before all Senior Indebtedness is paid in full, or
provision is made for such payment in money in accordance with
its terms, such payment or distribution shall be held in trust
for the benefit of and shall be paid over or delivered to the
holders of Senior Indebtedness or their representative or
representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any Senior
Indebtedness may have been issued, as their respective interests
may appear, as calculated by the Company, for application to the
payment of all Senior Indebtedness remaining unpaid to the extent
necessary to pay all Senior Indebtedness in full in money in
accordance with its terms, after giving effect to any concurrent
payment or distribution to or for the holders of such Senior
Indebtedness.
For purposes of this Article Fourteen, 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 of
reorganization or readjustment, the payment of which is
subordinated at least to the extent provided in this Article
Fourteen with respect to the Debentures to the payment of all
Senior Indebtedness which may at the time be outstanding;
provided that (i) the Senior Indebtedness is assumed by the new
corporation, if any, resulting from any such reorganization or
readjustment, and (ii) the rights of the holders of the Senior
Indebtedness are not, without the consent of such holders,
altered by such reorganization or readjustment. 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
Ten hereof shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section
14.03 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the
conditions stated in Article Ten hereof. Nothing in Section
14.02 or in this Section 14.03 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.06.
SECTION 14.04. Subject to the payment in full of all Senior
Indebtedness, the rights of the holders of the Debentures shall
be subrogated to the rights of the holders of Senior Indebtedness
to receive payments or distributions of cash, property or
securities of the Company applicable to the Senior Indebtedness
until the principal of (and premium, if any) and interest on the
Debentures shall be paid in full; and, for the purposes of such
subrogation, no payments or distributions to the holders of the
Senior Indebtedness of any cash, property or securities to which
the holders of the Debentures or the Trustee would be entitled
except for the provisions of this Article Fourteen, and no
payment over pursuant to the provisions of this Article Fourteen,
to or for the benefit of the holders of Senior Indebtedness by
holders of the Debentures or the Trustee, shall, as between the
Company, its creditors other than holders of Senior Indebtedness,
and the holders of the Debentures, be deemed to be a payment by
the Company to or on account of the Senior Indebtedness. It is
understood that the provisions of this Article Fourteen are and
are intended solely for the purposes of defining the relative
rights of the holders of the Debentures, on the one hand, and the
holders of the Senior Indebtedness on the other hand.
Nothing contained in this Article Fourteen or elsewhere in
this Indenture or in the Debentures is intended to or shall
impair, as between the Company, its creditors other than the
holders of Senior Indebtedness, and the holders of the
Debentures, the obligation of the Company, which is absolute and
unconditional, to pay to the holders of the Debentures the
principal of (and premium, if any) and interest on the Debentures
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 of the Debentures and creditors of the
Company other than the holders of the Senior Indebtedness, nor
shall anything herein or therein prevent the Trustee or the
holder of any Debenture from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture,
subject to the rights, if any, under this Article Fourteen 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 of the Company
referred to in this Article Fourteen, the Trustee, subject to the
provisions of Section 7.01, and the holders of the Debentures,
shall be entitled to rely upon any order or decree made by any
court of competent jurisdiction in which such dissolution,
winding-up, liquidation or reorganization proceedings are
pending, or a certificate of the receiver, trustee in bankruptcy,
liquidation trustee, agent or other person making such payment or
distribution, delivered to the Trustee or to the holders of the
Debentures, for the purposes 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 Fourteen.
SECTION 14.05. Each holder of a Debenture by his acceptance
thereof authorizes and directs the Trustee in his behalf to take
such action as may be necessary or appropriate to effectuate the
subordination provided in this Article Fourteen and appoints the
Trustee his attorney-in-fact for any and all such purposes.
SECTION 14.06. The Company shall give prompt written notice
to a Responsible Officer of the Trustee of any fact known to the
Company which would prohibit the making of any payment of monies
to or by the Trustee in respect of the Debentures pursuant to the
provisions of this Article Fourteen.
Notwithstanding the provisions of this Article Fourteen or
any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would
prohibit the making of any payment of monies to or by the Trustee
in respect of the Debentures pursuant to the provisions of this
Article Fourteen, unless and until a Responsible Officer of the
Trustee shall have received written notice thereof at the
Corporate Trust Office of the Trustee from the Company or a
holder or holders of Senior Indebtedness or from any trustee
therefor; and before the receipt of any such written notice, the
Trustee, subject to the provisions of Section 7.01, shall be
entitled in all respects to assume that no such facts exist;
provided that if the Trustee shall not have received the notice
provided for in this Section 14.06 at least two business days
prior to the date upon which by the terms hereof any money may
become payable for any purpose (including, without limitation,
the payment of the principal of (or premium, if any) or interest
on any Debenture), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and
authority to receive such money and to apply the same to the
purposes for which they were received, and shall not be affected
by any notice to the contrary which may be received by it within
two business days prior to such date.
The Trustee, subject to the provisions of Section 7.01,
shall be entitled to rely on the delivery to it of a written
notice by a person representing himself to be a holder of Senior
Indebtedness (or a trustee on behalf of such holder) to establish
that such notice has been given by a holder of Senior
Indebtedness or a trustee on behalf of any such holder or
holders. In the event that the Trustee determines in good faith
that further evidence is required with respect to the right of
any person as a holder of Senior Indebtedness to participate in
any payment or distribution pursuant to this Article Fourteen,
the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such person, the extent to which such person
is entitled to participate in such payment or distribution and
any other facts pertinent to the rights of such person under this
Article Fourteen, and if such evidence is not furnished the
Trustee may defer any payment to such person pending judicial
determination as to the right of such person to receive such
payment.
SECTION 14.07. The Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article Fourteen
in respect of any Senior Indebtedness at any time held by it, to
the same extent as any other holder of Senior Indebtedness, and
nothing in this Indenture shall deprive the Trustee of any of its
rights as such holder.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this
Article Fourteen, 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, subject to the provisions of Section 7.01, the
Trustee shall not be liable to any holder of Senior Indebtedness
if it shall pay over or deliver to holders of Debentures, the
Company or any other person money or assets to which any holder
of Senior Indebtedness shall be entitled by virtue of this
Article Fourteen or otherwise.
SECTION 14.08. No right of any present or future holder of
any Senior Indebtedness to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired
by any act or failure to act on the part of the Company or by any
act or failure to act, in good faith, by any such holder, or by
any noncompliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof
which any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time
and from time to time, without the consent of or notice to the
Trustee or the holders of the Debentures, without incurring
responsibility to the holders of the Debentures and without
impairing or releasing the subordination provided in this Article
or the obligations hereunder of the holders of the Debentures to
the holders of Senior Indebtedness, do any one or more of the
following: (i) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, Senior
Indebtedness, or otherwise amend or supplement in any manner
Senior Indebtedness or any instrument evidencing the same or any
agreement under which Senior Indebtedness is outstanding; (ii)
sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness;
(iii) release any person liable in any manner for the collection
of Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company and any other person.
The First National Bank of Chicago, as Trustee, hereby
accepts the trusts in this Indenture declared and provided, upon
the terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day and
year first above written.
COLUMBUS SOUTHERN POWER COMPANY
By_/s/ G. P. Maloney_____
Vice President
Attest:
By_/s/ Xxxxxxx X. Cross__
Assistant Secretary
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By_/s/ R. D. Manella______
Vice President
Attest:
By_/s/ Xxxxx X. Pacella___
Trust Officer
State of Ohio }
County of Franklin, } ss:
On this 22nd day of September, 1995, personally appeared
before me, a Notary Public within and for said County in the
State aforesaid, X. X. Xxxxxxx and Xxxxxxx X. Xxxxx, to me known
and known to me to be respectively a Vice President and Assistant
Secretary of COLUMBUS SOUTHERN POWER COMPANY, one of the
corporations named in and which executed the foregoing
instrument, who severally acknowledged that they did sign and
seal said instrument as such Vice President and Assistant
Secretary for and on behalf of said corporation and that the same
is their free act and deed as such Vice President and Assistant
Secretary, respectively, and the free and corporate act and deed
of said corporation.
In Witness Whereof, I have hereunto set my hand and notarial
seal this 22nd day of September, 1995.
[Notarial Seal]
_/s/ Xxxx X. Soltesz________
Xxxx X. Xxxxxxx
Notary Public, State of Ohio
My Commission Expires 7-12-99
State of Illinois }
County of Xxxx } ss:
Be it remembered, that on this 25th day of September, 1995,
personally appeared before me the undersigned, a Notary Public
within and for said County and State, THE FIRST NATIONAL BANK OF
CHICAGO, one of the corporations named in and which executed the
foregoing instrument, by X. X. Xxxxxxx, one of its Vice
Presidents, and by Xxxxx X. Xxxxxxx, one of its Trust Officers,
to me known and known by me to be such Vice President and Trust
Officer, respectively, who severally duly acknowledged the
signing and sealing of the foregoing instrument to be their free
act and voluntary deed, and the free act and voluntary deed of
each of them as such Vice President and Trust Officer,
respectively, and the free act and voluntary deed of said
corporation, for the uses and purposes therein expressed and
mentioned.
In Witness Whereof, I have hereunto set my hand and notarial
seal this 25th day of September, 1995.
[Notarial Seal]
_/s/ Xxxxxx Helmer__________________
Notary Public, State of Illinois
My Commission Expires: 1-14-99
