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EXHIBIT 4.1
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OHIO EDISON COMPANY
AND
THE BANK OF NEW YORK,
Trustee
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INDENTURE
Dated as of , 1996
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Subordinated Securities
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INDENTURE dated as of __________, 1996, between OHIO EDISON COMPANY, an
Ohio corporation ("Company"), and THE BANK OF NEW YORK, a New York banking
corporation ("Trustee").
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes, bonds or other evidences of subordinated
indebtedness ("Securities"), to be issued in one or more series as provided in
this Indenture.
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the respective Holders from time to time of
Securities or of series thereof:
ARTICLE ONE
Definitions and Incorporation by Reference
Section 1.01. Definitions.
"Affiliate" of any Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such Person.
"Agent" means any Registrar, Paying Agent or co-Registrar. See Section
2.05.
"Board of Directors" means the Board of Directors of the Company or any
authorized committee thereof.
"Board Resolution", when used with reference to the Company, means a
copy of a resolution certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification and delivered to the Trustee.
"Business Day" means any day which is not a Legal Holiday.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to the applicable provisions of this Indenture
and thereafter means the successor.
"Holder or Securityholder" means the person in whose name a Security is
registered on the Registrar's books.
"Indenture" means this Indenture as amended or supplemented from time
to time and, unless the context indicates otherwise, shall include the form and
terms of a particular series of Securities established as contemplated
hereunder.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after maturity or upon default
in any other payment due on such Security, means interest payable after
maturity or upon such default, as the case may be.
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"Interest Payment Date" means the date, if any, specified in the
Securities of any series as the fixed date on which any installment of interest
on the Securities of that series is due and payable.
"Officer" means the Chairman of the Board, the President, any Vice
President, the Treasurer or the Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers or
by an Officer and an Assistant Treasurer or an Assistant Secretary of the
Company and delivered to the Trustee. See Sections 11.04 and 11.05.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company or the Trustee. See Sections 11.04 and 11.05.
"original issue discount" of any debt security, including any Original
Issue Discount Security, means the difference between the principal amount of
such debt security and the initial issue price of such debt security (as set
forth, in the case of an Original Issue Discount Security, on the face of such
Security).
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
acceleration of the maturity thereof pursuant to Section 6.02.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, joint-stock company, unincorporated
association or government or any agency or political subdivision thereof.
"Predecessor Securities" means, with respect to any Security, every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security, and, for the purpose of this definition, any
Security authenticated and delivered under Section 2.09 in exchange for or in
lieu of a mutilated, lost, destroyed or wrongfully-taken Security shall be
deemed to evidence the same debt as the mutilated, lost, destroyed or
wrongfully-taken Security.
"principal" of a debt security, including any Security, means the
amount (including, without limitation, if and to the extent applicable, any
premium and, in the case of an Original Issue Discount Security, any accrued
original issue discount, but excluding interest) that is payable with respect
to such debt security as of any date and for any purpose (including, without
limitation, in connection with any sinking fund, upon any redemption at the
option of the Company, upon any purchase or exchange at the option of the
Company or the holder of such debt security and upon any acceleration of the
maturity of such debt security).
"principal amount" of a debt security, including any Security, means
the principal amount as set forth on the face of such debt security.
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"Regular Record Date" means the date, if any, specified in the
Securities of any series as the record date for the determination of
Securityholders to whom interest is payable on the next succeeding Interest
Payment Date.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Securities that are issued from time to time in
one or more series under this Indenture as such Securities are amended or
supplemented from time to time.
"Subsidiary" means a corporation a majority of whose voting stock is
owned by the Company and/or one or more Subsidiaries. Voting stock is capital
stock having voting power under ordinary circumstances to elect directors.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) as in effect on the date of this Indenture, except as provided in
Section 9.03.
"Trustee" means the party named as such in this Indenture until a
successor replaces it and thereafter means the successor and if at any time
there is more than one such party, "Trustee" as used with respect to the
Securities of any series shall mean the Trustee with respect to Securities of
that series.
"Trust Officer" means any officer or assistant officer in the corporate
trust department of the Trustee assigned by the Trustee to administer its
corporate trust matters.
"United States" means the United States of America.
"U.S. Government Obligations" means direct obligations of, or
obligations entitled to the full faith and credit of, the United States.
Section 1.02. Other Definitions.
Term Defined in Section
Bankruptcy Law 6.01
Code 9.01
Custodian 6.01
Event of Default 6.01
Legal Holiday 11.08
Paying Agent 2.05
Registrar 2.05
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
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Commission means the SEC.
indenture securities means the Securities.
indenture security holder means a Securityholder.
indenture to be qualified means this Indenture.
indenture trustee or institutional trustee means the Trustee.
obligor on the indenture securities means the Company and any other
obligor thereon.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with generally accepted accounting
principles in effect on the date of this Indenture;
(3) "or" is not exclusive; and
(4) words in the singular include the plural, and in the
plural include the singular.
ARTICLE TWO
The Securities
Section 2.01. Forms Generally and Dating.
The Securities of each series may be issued in whole or in part in the
form of one or more global Securities as shall be specified as contemplated by
Section 2.02.
The Securities of each series (including any temporary global
Securities) shall be in one of the forms established from time to time by or
pursuant to a resolution of the Board of Directors or in or pursuant to one or
more indentures supplemental hereto, which shall set forth the information
required by Section 2.02. The Securities shall have such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture or by a resolution of the Board of Directors or indenture
supplemental hereto and may have such notations, legends or endorsements as the
Company may deem appropriate and as are not inconsistent with the provisions of
this Indenture, or as may be required by law, stock exchange rule or usage. The
Company shall approve the forms of the Securities
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and any notation, legend or endorsement on them. If the form or forms of
Securities of any series is established by action taken pursuant to a resolution
of the Board of Directors or indenture supplemental hereto, 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 written order of the Company contemplated by Section 2.04
for the authentication and delivery of such Securities.
Each Security shall be dated the date of its authentication. The form
of the Trustee's certificate of authentication to be borne by the Securities
shall be substantially as follows:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK
as Trustee
By:
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Authorized Signatory
Section 2.02. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a resolution of the Board of Directors or
established in or pursuant to one or more indentures supplemental hereto, prior
to the issuance of Securities of any series:
(1) the title of the Securities of the Series (which
shall distinguish Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Sections 2.08, 2.09, 2.11, 3.07 or
9.05 and except for any Securities which pursuant to Section 2.04 are
deemed not to have been authenticated and delivered hereunder);
(3) (A) whether any of the Securities of the series are
to be issuable in global form and, if so, (i) the identity of the
depositary with respect to any such
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global Security and (ii) whether beneficial owners of interests in any
such global Security may exchange such interests for Securities of the
same series and of like tenor and of any authorized form and
denomination, and, if so, the circumstances under which and the manner
in which any such exchanges may occur, if other than as specified in
Section 2.08; (B) if any of the Securities of the series are to be
issuable in global form, the date as of which any global Security shall
be dated (if other than the date of original issuance of the first of
such Securities to be issued); and (C) if Securities of the series are
to be issuable in definitive form (whether upon original issue, upon
exchange of a temporary Security of such series, or in exchange for a
beneficial ownership interest in a permanent global Security) only upon
receipt of certain certificates or other documents or satisfaction of
other conditions, or if Securities of the series are initially issuable
in temporary global form and if owners of beneficial interests therein
may exchange such interest for an interest in a permanent global
Security only upon receipt of certain certificates or other documents
or satisfaction of other conditions, then the form and/or terms of such
certificates, documents or conditions;
(4) the date or dates (and whether fixed or extendible)
on which the principal of Securities of the series is payable;
(5) the rate or rates at which Securities of the series
shall bear interest, or the method of determining the same, if any,
the date or dates from which such interest shall accrue, or the
method of determining the same, if any, the Interest Payment Dates
(and whether fixed or extendible) and the Regular Record Dates;
(6) the place or places where the principal of and any
interest on Securities of the series shall be payable;
(7) any provisions relating to the issuance of
Securities of such series at an original issue discount (including,
without limitation, the issue price thereof, the rate or rates at
which such original issue discount shall accrue, if any, and the date
or dates from or to which or period or periods during which such
original issue discount shall accrue at such rate or rates);
(8) the price or prices at which, the period or periods
within which and the terms and conditions upon which Securities of the
series may be redeemed or otherwise purchased, in whole or in part,
at the option of the Company, pursuant to any sinking fund or otherwise
(including, without limitation, the form or method of payment thereof
if other than in cash);
(9) the obligation, if any, of the Company to redeem,
purchase or repay Securities of the series pursuant to any sinking
fund or analogous provisions or at the option of a Securityholder
thereof and the price or prices at which and the period or periods
within which and the terms and conditions upon which Securities of
the series shall be redeemed, purchased or repaid, in whole or in
part, pursuant to such obligation (including, without limitation,
the form or method of payment thereof, if other than in cash);
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(10) if other than denominations of $25 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(11) if other than the principal amount thereof, the
principal which shall be payable upon acceleration of the maturity of
Securities of the series pursuant to Section 6.02 or provable in
bankruptcy pursuant to Section 6.09;
(12) any Events of Default with respect to the Securities
of a particular series in lieu of or in addition to those set forth
herein and the remedies therefor;
(13) the terms of the subordination of Securities of the
series; and
(14) any other terms of a particular series and any other
provisions expressing or referring to the terms and conditions upon
which the Securities of that series are to be issued under this
Indenture, which terms and provisions are not in conflict with the
provisions of this Indenture; provided, however, the addition to or
subtraction from or variation of Articles Four, Five, Six and Eight
(and Sections 1.01 and 1.02, insofar as they relate to the definition
of certain terms as used in such Articles) with regard to the
Securities of a particular series shall not be deemed to constitute a
conflict with the provisions of those Articles.
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such resolution of the Board of Directors or in any such indenture
supplemental hereto. Not all Securities of any one series need be issued at the
same time, and, unless otherwise so provided, a series may be reopened for
issuances of additional Securities of such series.
If any of the terms of the Securities of a series are established by
action taken pursuant to a resolution of the Board of Directors or indenture
supplemental hereto, 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 with an Officers' Certificate setting forth the terms
or the manner of determining the terms of the Securities of such series. With
respect to Securities of a series which are not to be issued at one time, such
resolution of the Board of Directors or action may provide general terms or
parameters for Securities of such series and provide either that the specific
terms of particular Securities of such series shall be specified in a written
order of the Company or that such terms shall be determined by the Company or
its agents in accordance with a written order of the Company as contemplated by
the proviso clause of the fourth paragraph of Section 2.04.
Section 2.03. Denominations.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 2.02. In the absence of any such provisions with respect to the
Securities of any series, the securities of such series shall be issuable in
denominations of $25 and any integral multiple thereof.
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Section 2.04. Execution and Authentication.
Two Officers shall sign the Securities for the Company by manual or
facsimile signature. The Company's seal shall be reproduced on the Securities.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall be
valid nevertheless.
A Security shall not be entitled to any benefit under this Indenture or
be valid for any purpose until the Trustee manually signs the certificate of
authentication on the Security. The signature shall be conclusive evidence that
the Security has been authenticated under this Indenture. Notwithstanding the
foregoing, if any Security shall have been duly authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section
2.12 together with a written statement (which need not comply with Sections
11.04 and 11.05 and need not be accompanied by an Opinion of Counsel) stating
that such Security has not been issued and sold by the Company, for all purposes
of this Indenture such Security shall be deemed not to have been authenticated
and delivered hereunder and shall not be 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 Securities of any series executed by the
Company to the Trustee for authentication, and the Trustee shall authenticate
and deliver said Securities to or upon the written order of the Company, signed
by two Officers or by an Officer and an Assistant Treasurer of the Company,
without any further action by the Company. Such written order shall specify the
date on which said Securities shall be authenticated; provided, however, that if
not all the Securities of a series are to be issued at one time and if the
resolution of the Board of Directors or indenture supplemental hereto
establishing such series as contemplated by Sections 2.01 and 2.02 shall so
permit, such written order may set forth procedures acceptable to the Trustee
for the issuance of such Securities and for determining the form or terms of
particular Securities of such series including, but not limited to, interest
rate, maturity date, date of issuance and date from which interest shall accrue.
If the form or forms or terms of the Securities of the series have been
established in or pursuant to one or more resolutions of the Board of Directors
or indentures supplemental hereto as permitted by Sections 2.01 and 2.02, in
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, 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:
(1) if the form or forms of such Securities has been
established by or pursuant to a resolution of the Board of Directors or
indenture supplemental hereto, that such form or forms has been
established in conformity with the provisions of this Indenture;
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(2) if the terms of such Securities have been established by
or pursuant to a resolution of the Board of Directors or indenture
supplemental hereto, that such terms have been established in
conformity with the provisions of this Indenture; and
(3) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will have been duly
issued and will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent conveyance, reorganization and other
laws of general applicability relating to or affecting the enforcement
of creditors' rights and to general equitable principles;
provided, however, that, with respect to Securities of a series which are not to
be issued at one time, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication of
Securities of such series and that the opinions described in clauses (2) and (3)
above may state, respectively,
(a) that, when the terms of such Securities shall have been
established pursuant to a written order of the Company or pursuant to
such procedures as may be specified from time to time by a written
order of the Company, all as contemplated by and in accordance with a
resolution of the Board of Directors or an Officers' Certificate
pursuant to a resolution of the Board of Directors or indenture
supplemental hereto, as the case may be, such terms will have been
established in conformity with the provisions of this Indenture; and
(b) that such Securities, when (i) executed by the Company,
(ii) completed, authenticated and delivered by the Trustee in
accordance with this Indenture, (iii) issued and delivered by the
Company and (iv) paid for, all as contemplated by and in accordance
with the aforesaid written order of the Company or specified
procedures, as the case may be, will have been duly issued and will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent conveyance, reorganization and other laws of
general applicability relating to or affecting the enforcement of
creditors' rights and to general equitable principles.
Notwithstanding the provisions of Sections 2.01, 2.02, 11.04 and this
Section, if all the Securities of a series are not to be originally issued at
one time, the resolution of the Board of Directors or indenture supplemental
hereto, and certified copy of the record of action taken pursuant to such
resolution or supplemental indenture, the Officers' Certificate, the written
order of the Company and any other documents otherwise required pursuant to such
Sections need not be delivered at or prior to the time of authentication of each
Security of such series if such documents are delivered at or prior to the
authentication upon original issuance of the first Security of such series to be
issued; provided, however, that any subsequent request by the Company to the
Trustee to authenticate Securities of such series shall constitute a
representation and warranty by the Company that as of the date of such request,
the statements made in the Officers' Certificate delivered pursuant to Section
11.04
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at or prior to authentication of the first such Security shall be true and
correct on the date thereof as if made on and as of the date thereof.
The Trustee shall have the right to decline to authenticate and make
available for delivery any Securities under this Section if the issuance of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee.
With respect to Securities of a series which are not all issued at one
time, the Trustee may conclusively rely, as to the authorization by the Company
of any of such Securities, the form and terms thereof and the legality,
validity, binding effect and enforceability thereof, upon the Opinion of
Counsel, Officers' Certificate and other documents delivered pursuant to
Sections 2.01, 2.02, 11.04 and this Section, as applicable, at or prior to the
time of the first authentication of Securities of such series unless and until
such opinion, certificate or other documents have been superseded or revoked. In
connection with the authentication and delivery of Securities of a series which
are not all issued at one time, the Trustee shall be entitled to assume that the
Company's instructions to authenticate and deliver such Securities do not
violate any rules, regulations or orders of any governmental agency or
commission having jurisdiction over the Company.
Section 2.05. Registrar and Paying Agent.
The Company shall maintain an office or agency where Securities of each
series may be presented for registration of transfer or for exchange
("Registrar"), and an office or agency where Securities of each series may be
presented for payment ("Paying Agent"). The Registrar shall keep a register of
the Securities of each series issued hereunder and of their transfer and
exchange. The Company may have one or more co-Registrars (provided that there
shall be only one register, which shall be maintained by the principal
Registrar) and one or more additional paying agents with respect to any series.
The term "Paying Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall
promptly notify the Trustee of the name and address of any such Agent. If the
Company fails to maintain a Registrar or Paying Agent, the Trustee shall act as
such.
The Company initially appoints The Bank of New York Registrar and
Paying Agent for each series.
Section 2.06. Paying Agent to Hold Money and Securities in Trust.
Subject to any applicable terms of the Securities of the relevant
series relating to subordination (as contemplated by Article Ten and Section
2.02), each Paying Agent shall hold in trust for the benefit of Securityholders
of such series or the Trustee all money and securities held by the Paying Agent
for the payment of any amount in respect of the Securities of such series, and
shall notify the Trustee of any default by the Company in
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making any such payment. If the Company or a Subsidiary acts as Paying Agent, it
shall segregate such money and securities and hold it as a separate trust fund.
The Company at any time may require a Paying Agent to pay all money and
securities held by it to the Trustee and account for any funds or securities
disbursed. Upon doing so the Paying Agent shall have no further liability for
the money or securities.
Section 2.07. Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders ("List of Holders"). If the
Trustee is not the Registrar or a Paying Agent, the Company shall furnish to
the Trustee (i) as of February 15 and August 15 of each year, within one
Business Day thereafter, and (ii) at any other time within 30 days of receipt
by the Company of a written request from the Trustee for a List of Holders,
which shall be as of a date no more than 14 days before such List of Holders is
given to the Trustee; provided, that the Company shall not be obligated to
provide such List of Holders at any time the List of Holders does not differ
from the most recent List of Holders given to the Trustee by the Company. The
Trustee may destroy any List of Holders previously given to it on receipt of a
new List of Holders.
Section 2.08. Transfer and Exchange.
Where a Security is presented to the Registrar or a co-Registrar with a
request to register a transfer, the Registrar shall register the transfer as
requested if its requirements for such transfer are met. Notwithstanding any
other provision of this Section, unless and until it is exchanged in whole or in
part for Securities in definitive form, a global Security representing all or a
portion of the Securities of or within a series may not be transferred except as
a whole by the depositary for such series to a nominee of such depositary or by
a nominee of such depositary to such depositary or another nominee of such
depositary or by such depositary or any such nominee to a successor depositary
for such series or a nominee of such successor depositary. Where Securities are
presented to the Registrar or a co-Registrar with a request to exchange them
for an equal aggregate principal amount of Securities of the same series of
other authorized denominations, the Registrar shall make the exchange as
requested (other than with respect to a global Security, except as provided
below or as otherwise specified as contemplated by Section 2.02) if its
requirements for such exchange are met. The Registrar shall require, among other
things, that any Security presented or surrendered for transfer or exchange be
duly endorsed, or be accompanied by appropriate transfer documents duly
endorsed, or be accompanied by appropriate transfer documents duly executed, by
the Holder thereof or his attorney duly authorized in writing. To permit
transfers and exchanges, the Trustee shall authenticate Securities at the
Registrar's request. Any exchange or transfer shall be without charge, except
that the Company may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto.
The Registrar need not transfer or exchange any Security selected for
redemption or purchase (except, in the case of Securities to be redeemed or
purchased in part, the portion
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thereof not to be redeemed or purchased), any Security in respect of which a
notice requiring the purchase or redemption thereof by the Company at the option
of the Holder has been given and not withdrawn by the Holder thereof in
accordance with the terms of such Securities (except in the case of Securities
to be so purchased or redeemed in part, the portion thereof not to be so
purchased or redeemed), or transfer or exchange Securities of any particular
series during a period of 15 days prior to the mailing of any notice of
redemption.
Except as otherwise provided with respect to the Securities of any
series as contemplated by Section 2.02, a global Security may be exchanged only
as provided below in this Section.
If at any time the depositary with respect to a global Security
representing all or a portion of the Securities of or within a series notifies
the Company that it is unwilling, unable or ineligible to continue as such
depositary, the Company shall appoint a successor depositary with respect to
such Securities. Unless otherwise provided with respect to a series of
Securities as contemplated by Section 2.02, if a successor depositary is not so
appointed by the Company within 90 days after the Company receives such notice,
the Company will execute and the Trustee, upon receipt of a written order of the
Company as contemplated by Section 2.04 for the authentication and delivery of
definitive Securities of such series (or, if such written order has previously
been delivered, then upon receipt of written instructions from the person or
persons specified in such written order), will authenticate and deliver
Securities of such series in definitive form equal in aggregate principal amount
to the principal amount of the global Security or Securities representing such
series in exchange for such global Security or Securities.
The Company may at any time and in its sole discretion determine that
the Securities of any series issued in the form of one or more global Securities
shall no longer be represented by such global Security or Securities. In such
event the Company will execute and the Trustee, upon receipt of a written order
of the Company as contemplated by Section 2.04 for the authentication and
delivery of definitive Securities of such series (or, if such written order has
previously been delivered, then upon receipt of written instructions from the
person or persons specified in such written order), will authenticate and
deliver Securities of such series in definitive form equal in aggregate
principal amount to the principal amount of the global Security or Securities
representing such series in exchange for such global Security or Securities.
If a global Security is otherwise exchangeable as specified by the
Company pursuant to Section 2.02(3) with respect to a series of Securities, the
depositary with respect to a global Security representing all or a portion of
the Securities of or within such series may surrender such global Security to
the Trustee, as the Company's agent for such purpose, to be exchanged in whole
or in part for Securities of such series in definitive form in the manner and
under the circumstances so specified and on such terms as are acceptable to the
Company and such depositary. In such event, the Company shall execute and the
Trustee shall authenticate and deliver or make available for delivery:
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(i) to each Person specified by such depositary a new Security
or Securities of the same series and of like tenor, of any authorized
form and denomination as requested by such Person in aggregate
principal amount equal to and in exchange for such Person's beneficial
interest in the global Security; and
(ii) unless endorsement of the surrendered global Security as
contemplated by Section 2.15 or another procedure is specified for the
Securities of such series as contemplated by Section 2.02, to such
depositary a new global Security in a denomination equal to the
difference, if any, between the principal amount of the surrendered
global Security and the aggregate principal amount of Securities
delivered pursuant to clause (i) above in exchange for beneficial
interests in such surrendered global Security.
In any exchange provided for in any of the preceding three paragraphs,
the Company will execute and the Trustee will authenticate and deliver
Securities in definitive registered form in authorized denominations.
Upon the exchange of a global Security for Securities in definitive
form, such global Security shall be cancelled by the Trustee, unless endorsement
of the surrendered global Security as contemplated by Section 2.15 or another
procedure is specified for the Securities of such series as contemplated by
Section 2.02. Securities issued in exchange for a global Security pursuant to
this Section shall be registered in such names and in such authorized
denominations as the depositary for such global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the persons
in whose names such Securities are so registered.
If a Security is issued in exchange for any portion of a global
Security after the close of business at the office or agency where such exchange
occurs (i) on any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) on any special
record date and before the opening of business at such office or agency on the
related date for payment of defaulted interest, interest or defaulted interest,
as the case may be, will not be payable on such Interest Payment Date or
proposed date for payment, as the case may be, in respect of such Security, but
will be payable on such Interest Payment Date or proposed date for payment, as
the case may be, only to the Person to whom interest in respect of such portion
of such global Security is payable in accordance with the provisions of this
Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Section 2.09. Replacement Securities.
If a mutilated Security is surrendered to the Registrar or if the
Holder of a Security claims that the Security has been lost, destroyed or
wrongfully taken, then in the absence of notice to the Company or the Trustee
that such Security has been acquired by a bona fide
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purchaser, the Company shall issue and the Trustee shall authenticate a
replacement Security if the Trustee's requirements are met. If required, such
Holder shall furnish an indemnity bond sufficient in the judgment of the Company
and the Trustee to protect the Company, the Trustee or any Agent from any loss
which any of them may suffer if a Security is replaced. Upon the issuance of any
new Security under this Section, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee) connected therewith.
In case any such lost, destroyed or wrongfully-taken Security has
become or is about to become due and payable, or is about to be purchased by the
Company pursuant to any provision of the Securities of such series providing for
the purchase thereof at the option of the Holder or the Company, the Company in
its discretion may, instead of issuing a new Security, pay or purchase such
Security.
Every new Security issued pursuant to this Section in lieu of any lost,
destroyed or wrongfully-taken Security shall constitute a separate obligation of
the Company, whether or not the lost, destroyed or wrongfully-taken Security
shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Securities of such series duly issued hereunder.
The provisions of this Section, as amended or supplemented pursuant to
this Indenture with respect to particular Securities or generally, shall be
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, lost,
destroyed or wrongfully-taken Securities.
Section 2.10. Outstanding Securities.
Securities outstanding at any time are all Securities authenticated by
the Trustee except for those cancelled by it, those delivered to it for
cancellation and those described in this Section as not being outstanding. A
Security does not cease to be outstanding because the Company or one of its
Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.09, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent holds on a redemption date or maturity date or on
the Business Day following a date on which Securities of such series are to be
purchased by the Company pursuant to any provision thereof providing for such
purchase at the option of the Holder or the Company, money (or securities if
permitted by the terms of such Securities) in trust or, if the Company, acting
as its own Paying Agent, sets aside and segregates money (or securities if
permitted by the terms of such Securities) in trust, sufficient to pay
Securities payable on that date, then, on and after that date such Securities
cease to be outstanding and interest, if any (and original issue discount, if
Original Issue Discount Securities), on them ceases to accrue, unless the Paying
Agent is restricted under the terms of the Securities of such series (specified
as contemplated by Section 2.02) in applying such money.
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Section 2.11. Temporary Securities.
Pending the preparation of a permanent global Security or definitive
Securities of any series, the Company may execute and the Trustee, upon the
written order of the Company pursuant to Section 2.04, shall authenticate and
deliver temporary Securities. Temporary Securities of any series shall be in
authorized denominations and substantially of the tenor of the definitive
Securities of that series in lieu of which they are issued, but may have
variations that the Company considers appropriate for temporary Securities. In
the case of Securities of any series, such temporary Securities may be in global
form. If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, and upon
surrender for cancellation of any one or more temporary Securities of such
series, the Company shall execute and the Trustee shall authenticate and deliver
in exchange therefor a like aggregate principal amount of definitive Securities
of authorized denominations of the same series and containing identical terms
and provisions. Until so exchanged, the temporary Securities of any series
shall, except as otherwise specified as contemplated by Section 2.02 (including
with respect to the payment of interest on temporary Securities), in all
respects be entitled to the same benefits under this Indenture as definitive
Securities of the same series and of like tenor authenticated and delivered
hereunder.
Section 2.12. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation, including Securities authenticated which the Company has not
issued and sold. The Company and each Agent shall forward to the Trustee any
Securities surrendered to them for transfer, exchange, payment, redemption, or
purchase by the Company pursuant to any provision thereof providing for such
purchase at the option of the Holder. The Trustee and no one else shall cancel
all Securities surrendered for transfer, exchange, payment, redemption,
purchase, or cancellation, and may dispose of cancelled Securities as the
Company directs; provided, however, that the Trustee shall not be required to
destroy such cancelled Securities. Except as otherwise provided in the
resolution of the Board of Directors or indenture supplemental hereto
establishing such series as contemplated by Section 2.02, the Company may not
issue new Securities of a series to replace Securities of the same series that
it has paid or that have been delivered to the Trustee for cancellation.
Section 2.13. Payment of Interest; Defaulted Interest.
Unless otherwise provided with respect to the Securities of any series
as contemplated by Section 2.02, interest (except defaulted interest) on any
Security of any series which is payable on any Interest Payment Date shall be
paid to the Holder in whose name that Security (or one or more Predecessor
Securities) is registered on the security register at the close of business on
the Regular Record Date for such interest payment. At the option of the Company,
payment of interest on any Security may be made (i) by check mailed to the
address of the Person entitled thereto as such address appears in the security
register, or (ii) if so specified with respect to the Securities of such series
as contemplated by Section 2.02, by wire transfer to any account designated by
such Person.
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If the Company defaults in a payment of interest on the Securities of
any series on any Interest Payment Date, it shall pay the defaulted interest to
the Persons who are Securityholders of such series at the close of business on a
subsequent special record date. The Company shall fix the special record date
and payment date. At least 15 days before the record date, the Company shall
mail to each Securityholder of such series a notice that states the special
record date, the payment date and the amount of defaulted interest proposed to
be paid. The Company shall notify the Trustee in writing of the amount of the
defaulted interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company shall deposit
with the Paying Agent 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 Paying Agent for such deposit prior to the date of the
proposed payment. The Company may pay defaulted interest in any other lawful
manner.
Section 2.14. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any Agent may treat the person in whose name such
Security is registered as the owner of such Security for the purpose of
receiving payment of principal of and (subject to Section 2.13) interest on such
Security and for all other purposes whatsoever, and neither the Company, the
Trustee nor any Agent shall be affected by notice to the contrary.
No holder of any beneficial interest in any global Security held on its
behalf by a depositary shall have any rights under this Indenture with respect
to such global Security, and such depositary (or its nominee, if such global
Security is registered in the name of a nominee) may be treated by the Company,
the Trustee, and any Agent as the owner of such global Security for all purposes
whatsoever. None of the Company, the Trustee, or any Agent will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security,
nothing herein shall prevent the Company, the Trustee, or any Agent from giving
effect to any written certification, proxy or other authorization furnished by
any depositary, as a Holder, with respect to such global Security or impair, as
between such depositary and owners of beneficial interests in such global
Security, the operation of customary practices governing the exercise of the
rights of such depositary (or its nominee) as Holder of such global Security.
Section 2.15. Securities in Global Form.
If the Company shall establish pursuant to Section 2.02 that the
Securities of or within a series are to be issued in whole or in part in global
form, then the Company shall execute, and the Trustee shall, in accordance with
Section 2.04 and the written order of the Company contemplated thereby,
authenticate and deliver one or more global Securities in temporary or permanent
form that (i) shall be registered in the name of the depositary for such global
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Security or Securities or the nominee of such depositary, (ii) shall be
delivered by the Trustee to such depositary or pursuant to such depositary's
instructions, and (iii) shall bear a legend substantially to the following
effect: "Unless and until it is exchanged in whole or in part for Securities in
definitive form, this Security may not be transferred except as a whole by the
depositary to a nominee of the depositary or by a nominee of the depositary to
the depositary or another nominee of the depositary or by the depositary or any
such nominee to a successor depositary or a nominee of such successor
depositary." Each depositary designated pursuant to Section 2.02 for a global
Security in registered form must be, to the extent required by applicable law or
regulation, a clearing agency registered under the Securities Exchange Act of
1934, as amended, and any other applicable statute or regulation, at the time of
its designation and at all times that it serves as depositary. Notwithstanding
clause (14) of Section 2.02 and the provisions of Section 2.03, any such global
Security shall represent such of the outstanding Securities of such series as
shall be specified therein and may provide that it shall represent the aggregate
amount of outstanding Securities of such series from time to time endorsed
thereon and that the aggregate amount of outstanding Securities represented
thereby may from time to time be increased or decreased to reflect exchanges.
Any endorsement of a Security in a global form to reflect the amount, or any
increase or decrease in the amount, or changes in the rights of Holders, of
outstanding Securities represented thereby shall be made in such manner and upon
instructions given by such Person or Persons as shall be specified therein or in
the written order of the Company to be delivered to the Trustee pursuant to
Section 2.04. Subject to the provisions of Section 2.04 and, if applicable,
Section 2.11, the Trustee shall deliver and redeliver any Security in permanent
global form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable written order of the Company. If a
written order of the Company pursuant to Section 2.04 has been, or
simultaneously is, delivered, any instructions with respect to a Security in
global form shall be in writing but need not comply with Sections 11.04 and
11.05 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of the third paragraph of Section
2.04 shall apply to any Security represented by a Security in global form if
such Security was never issued and sold by the Company and the Company delivers
to the Trustee the Security in global form together with written instructions
(which need not comply with Sections 11.04 and 11.05 and need not be accompanied
by an Opinion of Counsel) with regard to the reduction in the principal amount
of Securities represented thereby, together with the written statement
contemplated by the last sentence of the third paragraph of Section 2.04.
Section 2.16. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
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ARTICLE THREE
Redemption
Section 3.01. Applicability of Article.
Securities of any series which are redeemable before their stated
maturity at the election of the Company or through the operation of any sinking
fund for the retirement of Securities of such series shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by Section 2.02 for Securities of any series) in accordance with this Article.
Section 3.02. Notices to Trustee.
If the Company elects to redeem all or less than all the Securities of
any series, it shall notify the Trustee of the redemption date, the principal
amount of Securities to be redeemed, the specific provision of the Securities
pursuant to which the Securities being called for redemption are being redeemed
and the redemption price. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction. If the Company wants to make any permitted optional sinking fund
payment, it shall notify the Trustee of the principal amount of the Securities
to be redeemed.
The Company (1) may deliver outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed or otherwise purchased either at
the election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the
terms of such Securities in satisfaction of all or any part of any sinking fund
payment required to be made pursuant to the terms of the Securities of such
series as provided for by the terms of such series: provided that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the redemption price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
The Company shall notify the Trustee of its intention to so reduce the amount of
such sinking fund payment, the amount of the reduction and the basis for it. The
Company shall deliver to the Trustee with such notice any Securities to be
credited for such purpose that it has not previously delivered to the Trustee
for cancellation.
The Company shall give each notice and Officers' Certificate provided
for in this Section together with the securities to be credited as provided in
the immediately preceding paragraph at least 45 days before the redemption date
(unless a shorter notice shall be satisfactory to the Trustee or is otherwise
specified as contemplated by Section 2.02 for Securities of any series).
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Section 3.03. Selection of Securities to be Redeemed.
Except as otherwise specified as contemplated by Section 2.02 for
Securities of any series, if less than all the Securities of any series are to
be redeemed, the particular Securities to be redeemed shall be selected from
Securities of the same series outstanding not previously called for redemption
by such method as the Trustee considers fair and appropriate (and in such manner
as complies with applicable requirements of any stock exchange on which
Securities of such series are listed) and which may provide for the selection
for redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series that have denominations larger than the
minimum authorized denomination for Securities of that series. Provisions of
this Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption.
Section 3.04. Notice of Redemption.
At least 30 days but no more than 60 days before a redemption date
(unless a shorter notice is specified as contemplated by Section 2.02 for
Securities of any series), the Company shall mail a notice of redemption by
first-class mail to each Holder of Securities of the series to be redeemed.
The notice shall identify the Securities, including CUSIP number, if
any (and, in the case of partial redemption, the principal amount of the
Securities), to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price and method of payment, if other than in
cash;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(5) that interest, if any (or original issue discount, if Original
Issue Discount Securities), on Securities called for redemption ceases to accrue
on and after the redemption date, unless the Company defaults in making such
redemption payment; and
(6) that the redemption is for a sinking fund or at the election
of the Company, whichever is the case.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense, provided that the
Company shall have furnished to the Trustee the Officers' Certificate and
Opinion of Counsel required pursuant to Section 11.04 at least 15 days prior to
the date that the Trustee is required to take any action in connection with a
redemption.
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Section 3.05. Effect of Notice of Redemption.
Once notice of redemption is mailed, Securities of the series called
for redemption become due and payable on the redemption date and at the
redemption price therein specified and on and after such date (unless the
Company shall default in the payment of the redemption price and accrued
interest, if any) such Securities shall cease to bear interest, if any (and
original issue discount, if such Securities are Original Issue Discount
Securities, shall cease to accrue). Upon surrender to the Paying Agent, such
Securities shall be paid at the redemption price, plus, if applicable, accrued
interest, if any, to the redemption date: provided, however, that installments
of interest the Interest Payment Date for which is on or prior to the redemption
date shall be payable to the persons who are Holders of such Securities (or one
or more Predecessor Securities) on the relevant record dates for such interest
according to their terms and Section 2.13.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid, bear interest
from the redemption date at the rate prescribed therefor in the Security.
Section 3.06. Deposit of Redemption Price.
On or before 11:00 a.m., New York time, on the redemption date, the
Company shall deposit with the Paying Agent money (or securities if permitted by
the terms of such Securities) sufficient to pay the redemption price of, and
(except if the redemption date is an Interest Payment Date) accrued interest, if
any, on, all Securities to be redeemed on that date other than Securities or
portions thereof called for redemption on that date which are delivered by the
Company to the Trustee for cancellation.
Section 3.07. Securities Redeemed in Part.
Any Security that is to be redeemed only in part shall be surrendered
at a place of payment therefor (with, if the Company, the Registrar or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company, the Registrar and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series, containing identical terms and provisions, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal amount of the
Security so surrendered, and, unless otherwise specified as contemplated by
Section 2.02, if a global Security is so surrendered, the Company shall execute,
and the Trustee shall authenticate and deliver to the depositary for such global
Security, without service charge, a new global Security in a denomination equal
to and in exchange for the unredeemed portion of the principal amount of the
global Security so surrendered.
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ARTICLE FOUR
Covenants
Section 4.01. Payment of Securities.
The Company shall pay the principal of and any interest on the
Securities of each series in accordance with the terms of the Securities of such
series and this Indenture.
To the extent enforceable under applicable law, the Company shall pay
interest on overdue principal at the rate borne by the Securities of such series
(unless a different rate is specified as contemplated by Section 2.02 for
Securities of such series).
Section 4.02. SEC Reports.
The Company shall file with the Trustee within 15 days after it files
them with the SEC copies of the annual reports and of the information, documents
and other reports (or copies of such portions of any of the foregoing as the SEC
may by rules and regulations prescribe) which the Company is required to file
with the SEC pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934. The Company also shall comply with the other provisions of TIA Section
314(a).
A copy of each report at the time of its mailing to Securityholders
shall be filed by the Company with the SEC and each stock exchange on which the
Securities are listed.
The Company will promptly notify the Trustee if and when the Securities
of any series are listed on any stock exchange.
Section 4.03. Compliance Certificate.
The Company will, within 120 days after the close of each fiscal year
of the Company, commencing with the first fiscal year following the issuance of
Securities of any series under this Indenture (but in any event within the time
required by TIA section 314(a)), file with the Trustee a certificate of the
principal executive officer, the principal financial officer or the principal
accounting officer of the Company, covering the period from the date of issuance
of such Securities to the end of the fiscal year in which such Securities were
issued, in the case of the first such certificate, and covering the preceding
fiscal year in the case of each subsequent certificate, and stating whether or
not, to the knowledge of the signer, the Company has complied with all
conditions and covenants on its part contained in this Indenture, and, if the
signer has obtained knowledge of any default by the Company in the performance,
observance or fulfillment of any such condition or covenant, specifying each
such default and the nature thereof. For the purposes of this Section 4.03,
compliance shall be determined without regard to any grace period or requirement
of notice provided pursuant to the terms of this Indenture. The certificate need
not comply with Section 11.05.
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Section 4.04. Corporate Existence.
Subject to the provisions of Section 5.01, the Company will do or cause
to be done all things necessary to preserve and keep in full force and effect
its corporate existence.
Section 4.05. Calculation of Original Issue Discount.
[The Company shall file with the Trustee promptly at the end of each
calendar year written notice specifying the aggregate amount of original issue
discount (including daily rates and accrual periods), if any, accrued on
outstanding Securities as of the end of such year.]
ARTICLE FIVE
Successor Corporation
Section 5.01. When Company May Merge, etc.
The Company shall not consolidate with or merge into, or transfer its
properties and assets substantially as an entirety to, another corporation
unless (1) the successor corporation, which shall be a corporation organized and
existing under the laws of the United States or a State thereof, assumes by
supplemental indenture all the obligations of the Company under the Securities
and this Indenture; and (2) immediately after giving effect to such transaction,
no Event of Default shall have occurred and be continuing. Thereafter, unless
otherwise specified as contemplated by Section 2.02 for the Securities of any
series, all such obligations of the predecessor corporation shall terminate.
ARTICLE SIX
Defaults and Remedies
Section 6.01. Events of Default.
An "Event of Default" with respect to Securities of any series means
each of the events specified below in this Section 6.01, unless it is either
inapplicable to a particular series or is specifically deleted or modified as
contemplated by Section 2.02 for the Securities of such series, and any other
events as may be specified as contemplated by Section 2.02 for the Securities of
such series:
(1) the Company defaults in the payment of any interest
on any Security of that series when the same becomes due and payable
and the default continues for a period of 30 days;
(2) the Company defaults in the payment of the principal
of any Security of that series when the same becomes due and payable at
maturity, upon redemption
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(including default in the making of any mandatory sinking fund
payment), upon purchase by the Company at the option of the Holder
pursuant to the terms of such Security or otherwise;
(3) the Company fails to comply with any of its other
agreements in Securities of that series or this Indenture (other than
an agreement which has expressly been included in this Indenture solely
for the benefit of Securities of any series other than that series or
is expressly made inapplicable to the Securities of such series as
contemplated by Section 2.02) and the default continues for the period
and after the notice specified below;
(4) the Company pursuant to or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case, or consents to
the commencement of a case against it,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a Custodian
of it or for all or substantially all of its property, or
(D) makes a general assignment for the benefit
of its creditors;
(5) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company in an
involuntary case or adjudicates the Company insolvent or
bankrupt,
(B) appoints a Custodian of the Company or for
all or substantially all of its property, or
(C) orders the winding up or liquidation of the
Company, and the order or decree remains unstayed and in effect
for 90 days; or
(6) any other Event of Default provided with respect to
Securities of that series occurs.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal or State law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
A default under clause (3) is not an Event of Default until the Trustee
notifies the Company or the Holders of at least 25% in aggregate principal
amount of the outstanding Securities of that series notify the Company and the
Trustee of the default and the Company
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does not cure the default within 90 days after receipt of the notice. The notice
must specify the default, demand that it be remedied and state that the notice
is a "Notice of Default."
Section 6.02. Acceleration.
If an Event of Default (other than an Event of Default specified in
Section 6.01(4) or (5)) occurs and is continuing with respect to Securities of
any series at the time outstanding, the Trustee by notice to the Company, or the
Holders of at least 25% in aggregate principal amount of the outstanding
Securities of that series by notice to the Company and the Trustee, may declare
to be due and payable immediately (1) the principal amount (or, if the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of the Securities of
that series) of all of the Securities of that series then outstanding and (2)
interest, if any, accrued to the date of acceleration. Upon such declaration,
such principal amount (or specified amount) and interest, if any, shall be due
and payable immediately. If an Event of Default specified in Section 6.01 (4) or
(5) occurs and is continuing, (1) the principal amount (or, if the Securities of
that series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of the Securities of that
series) of all of the Securities of that series then outstanding and (2)
interest, if any, accrued to the date of such acceleration shall become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or Securityholders. The Holders of a majority in aggregate principal
amount of the outstanding Securities of the series with respect to which an
acceleration applies by notice to the Trustee may rescind an acceleration and
its consequences with respect to such series if all existing Events of Default
(other than the non-payment of the principal of and accrued interest, if any, on
Securities that have become due solely by such acceleration) with respect to
Securities of that series have been cured or waived and if the rescission would
not conflict with any judgment or decree. No such rescission shall affect any
subsequent default or impair any right consequence thereon.
Section 6.03. Other Remedies.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may pursue any available remedy by proceeding at
law or in equity to collect the payment of the whole amount which then shall
have become due and remain unpaid for principal or interest, if any, on the
Securities of that series or to enforce the performance of any provision of the
Securities of that series or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities of that series or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver or acquiescence in the Event
of Default. No remedy is exclusive of any other remedy. All available remedies
are cumulative.
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Section 6.04. Waiver of Existing Defaults.
Subject to Section 9.02, the Holders of a majority in aggregate
principal amount of the outstanding Securities of any series by notice to the
Trustee may waive on behalf of the Holders of all the Securities of such series
an existing Default or Event of Default and its consequences. When a Default or
Event of Default is waived, it is cured and stops continuing.
Section 6.05. Control by Majority.
The Holders of a majority in aggregate principal amount of the
outstanding Securities of any series may 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 it, with respect to the Securities of such
series. The Trustee, however, may refuse to follow any direction that conflicts
with law or this Indenture, that is unduly prejudicial to the rights of another
Securityholder or that would involve the Trustee in personal liability.
Section 6.06. Limitation of Suits.
No Holder of any Security of any series shall have the right to pursue
any remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of at least 25% in aggregate principal
amount of the outstanding Securities of that series make a written
request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer and provide to the
Trustee indemnity satisfactory to the Trustee against any loss,
liability or expense;
(4) the Trustee does not comply with the request within
60 days after receipt of the request and the offer of indemnity; and
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the
Holders of a majority in aggregate principal amount of the
outstanding Securities of such series.
A Securityholder of any series may not use this Indenture to prejudice
the rights of another Securityholder of such series or to obtain a preference or
priority over another Securityholder of such series, except in the manner herein
provided and for the equal and ratable benefit of all Securityholders of such
series.
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Section 6.07. Rights of Holders to Receive Payment and to Convert.
Subject to the terms of the Securities of any series relating to
subordination (as contemplated by Article Ten and Section 2.02) and
notwithstanding any other provision of this Indenture, the right of any Holder
of a Security to receive payment of principal of and (subject to Section 2.13)
interest, if any, on the Security, on or after the respective due dates with
respect to such payments expressed in such Security, and, if applicable, to
convert such Security on the terms and subject to the conditions applicable to
Securities of such series, or to bring suit for the enforcement of any such
payment on or after such respective dates or of such right to convert, if any,
shall not be impaired or affected without the consent of the Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(1) or (2) occurs and
is continuing with respect to the Securities of any series, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company for the whole amount which then shall have become due and remain unpaid
for principal and interest, if any, on the Securities of such series.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee and
the Securityholders allowed in any judicial proceedings relative to the Company,
its creditors or its property and to collect and receive money, property or
securities payable or deliverable on any such claims and to distribute the same.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article, it shall
pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to the payment of items to which the Securities have
been subordinated as contemplated by Article Ten and Section 2.02;
Third: to the payment of amounts due and unpaid for principal
and interest, if any, on the Securities in respect of which such money
has been collected, ratably, without preference or priority of any
kind, according to the amounts which then shall have become due and
payable on such Securities for principal and interest, respectively;
and
Fourth: to the Company.
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The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section, notice of which shall be mailed to
each Securityholder by the Company at least 15 days before such record date.
Section 6.11. Undertaking for Costs.
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, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.07 or a suit by Holders of more than 10% in
aggregate principal amount of the outstanding Securities of any series.
ARTICLE SEVEN
Trustee
All the provisions of this Article Seven apply to the Trustee acting in
all its appointed capacities pursuant to this Indenture unless any provision
specifically applies to the Trustee only in its capacity as Trustee.
Section 7.01. Duties of Trustee.
(a) If an Event of Default with respect to Securities of any series
has occurred and is continuing, the Trustee shall with respect to such series
exercise such of the rights and powers vested in it by this Indenture with
respect to such series 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) With respect to Securities of any series, except during the
continuance of an Event of Default with respect to Securities of such series:
(1) The Trustee need perform those duties and only those
duties that are specifically set forth in this Indenture or are
mandated by the TIA and no implied covenants or obligations shall
be read into this Indenture against the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. The Trustee, however, shall, with
respect to certificates or opinions which by any provision hereof
are required to be provided to the Trustee, examine the
certificates and opinions to determine whether or not they conform
to the requirements of this Indenture.
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(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b)
of this Section.
(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with
a direction received by it pursuant to Section 6.05.
(4) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not
reasonably assured to it.
(5) Notwithstanding anything contained in this Indenture to
the contrary, the duties and responsibilities of the Trustee under
this Indenture shall be subject to the protections, exculpations
and limitations on liability afforded to the Trustee under the
provisions of the TIA.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
Section 7.02. Rights of Trustee.
(a) The Trustee may rely and shall be protected in acting or
refraining from acting on any document believed by it to be genuine and to have
been signed or presented by the proper Person. The Trustee need not investigate
any fact or matter stated in such document.
(b) Before the Trustee acts or refrains from acting, it may consult
with counsel or require, in its discretion, an Officers' Certificate, an Opinion
of Counsel, and/or an accountant's certificate. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on the
Officers' Certificate, Opinion of Counsel or accountant's certificate.
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(c) The Trustee may act hereunder either directly or through agents or
counsel and shall not be responsible for the misconduct or negligence of any
agent or counsel appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers.
(e) Any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any Holder pursuant to this Indenture, unless such Holder shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction.
(g) The Trustee shall not be charged with knowledge of any default or
Event of Default, as the case may be, with respect to the Securities of any
series for which it is acting as Trustee unless either (1) a Trust Officer of
the Trustee shall have actual knowledge of the default or Event of Default, as
the case may be, or (2) written notice of such default or Event of Default, as
the case may be, shall have been given to the Trustee by the Company, any other
obligor on such Securities or by any Holder of such Securities.
(h) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
coupon or other paper or document but the Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it may see
fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. The Trustee, however, must comply with
Sections 7.10 and 7.11.
Section 7.04. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities; it shall not be accountable for the Company's
use of the proceeds from the Securities; and it shall not be responsible for any
statement in the Indenture or the Securities other than its certificate of
authentication.
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Section 7.05. Notice of Defaults.
If a Default occurs and is continuing with respect to Securities of any
series and if it is known to a Trust Officer of the Trustee, the Trustee shall
transmit by mail to each Securityholder or such series in the manner and to the
extent provided in TIA Section 313(c) notice of the Default within 90 days after
its occurs or as soon as reasonably practicable thereafter. Except in the case
of a default in payment of principal of or interest on any Security of such
series (including default in the making of any mandatory sinking fund or
mandatory repurchase payment), the Trustee may withhold the notice if and so
long as a committee of its Trust Officers in good faith determines that
withholding the notice is in the interests of Securityholders of such series.
Section 7.06. Reports by Trustee to Holders.
Within 60 days after each July 31 beginning with the July 31 following
the date on which Securities are originally issued under this Indenture, the
Trustee shall transmit by mail to each Securityholder in the manner and to the
extent provided in TIA Section 313(c) a brief report dated as of such July 31
that complies with TIA Section 313(a) if such report is required by TIA Section
313(a). The Trustee also shall comply with TIA Section 313(b).
Section 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee such compensation for its services
as shall be agreed upon in a writing between the Company and the Trustee. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred by it. Such expenses
shall include the reasonable compensation and expenses of the Trustee's agents
and counsel.
The Company shall indemnify the Trustee against any loss or liability
incurred by it arising out of or in connection with the acceptance or
administration of this trust and its duties hereunder. The Trustee shall notify
the Company promptly of any claims asserted against the Trustee for which it may
seek indemnity. Failure of the Trustee to so notify the Company shall not
relieve the Company of its obligations hereunder. The Company shall have the
right to elect to defend the claim and the Trustee shall cooperate in the
defense. The Trustee may have separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel. The Company need not pay for any
settlement made without its written consent, which consent shall not be
unreasonably withheld. The Company need not reimburse any expense or indemnify
against any loss or liability incurred by the Trustee through negligence or bad
faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay principal of or
interest on particular Securities.
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In addition to any other rights to payment herein, when the Trustee
incurs expenses or renders services after an Event of Default specified in
Section 6.01(4) or (5) occurs, the expenses and the compensation for the
services are intended to constitute expenses of administration under any
Bankruptcy Law.
The provisions of this Section shall survive the termination of this
Indenture.
Section 7.08. Replacement of Trustee.
The Trustee may resign at any time with respect to Securities of one or
more series by so notifying the Company. The Holders of a majority in aggregate
principal amount of the outstanding Securities of any series may remove the
Trustee with respect to the Securities of such series by so notifying the
removed Trustee and may appoint a successor Trustee with the Company's consent.
The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed, or if a vacancy exists in the
office of the Trustee for any reason, with respect to the Securities of one or
more series, the Company shall promptly appoint a successor Trustee or Trustees
(it being understood that any such successor Trustee may be appointed with
respect to the Securities of one or more or all of such series and that at any
time there shall be only one Trustee with respect to the Securities of any
particular series).
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee (subject to its lien, if any, provided for in Section 7.07),
the resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. A successor Trustee shall mail notice of its
succession to each Securityholder.
If a successor Trustee with respect to Securities of any series does
not take office within 60 days after the retiring Trustee resigns or is removed,
the retiring Trustee, the Company or the Holders of a majority in aggregate
principal amount of the outstanding Securities of such series may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
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If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
with respect to all Securities and the appointment of a successor Trustee.
Section 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust assets to, another corporation
or national banking association, the successor corporation or national banking
association without any further act shall be the successor Trustee.
Section 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a). The Trustee shall always have a combined
capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition. With respect to the Securities of each
series, the Trustee shall comply with TIA Section 310(b). In determining whether
the Trustee has a conflicting interest as defined in TIA Section 310(b) with
respect to the Securities of any series, there shall be excluded this Indenture
with respect to the Securities of any series other than that series. Nothing
herein shall prevent the Trustee from filing with the SEC the application
referred to in the second to last paragraph of TIA Section 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE EIGHT
Discharge of Indenture
Section 8.01. Termination of Company's Obligations.
The Company may terminate all of its obligations under the Securities
of any series and this Indenture with respect to the Securities of such series
if either (1) all Securities of such series previously authenticated and
delivered (other than destroyed, lost or stolen Securities which have been
replaced or paid or Securities for whose payment money (or, if permitted by the
terms of such Securities, securities) has theretofore been held in trust and
thereafter repaid to the Company, as provided in Section 8.03) have been
delivered to the Trustee for cancellation; or (2) (i) the Company irrevocably
deposits in trust with the Trustee money or U.S. Government Obligations
sufficient to pay the principal of and interest, if any, on all Securities of
such series not theretofore cancelled or delivered to the Trustee for
cancellation (other than destroyed, lost or stolen Securities which have been
replaced or paid or Securities for whose payment money (or, if permitted by the
terms of such Securities,
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securities) has theretofore been held in trust and thereafter repaid to the
Company, as provided in Section 8.03) to maturity or redemption, as the case may
be and (ii) the Company delivers to the Trustee an opinion of counsel to the
effect that, based upon the Company's receipt from, or the publication by, the
Internal Revenue Service of a ruling or a change in law, the holders of the
Securities will not recognize income, gain or loss for United States federal
income tax purposes as a result of the deposit, defeasance and discharge and
will be subject to United States federal income tax on the same amount in the
same manner and at the same times as would have been the case if such deposit,
defeasance or discharge had not occurred.
The Company's obligations in Sections 2.05, 2.06, 2.07, 2.08, 2.09,
4.01, 7.07, 7.08 and 8.03 of this Indenture, however, shall survive until the
Securities of such series are no longer outstanding. Thereafter, the Company's
obligations in Sections 7.07 and 8.03 shall survive. Notwithstanding the
satisfaction and discharge of this Indenture with respect to the Securities of
any series, if money or U.S. Government Obligations shall have been deposited
with the Trustee pursuant to clause (2) of the first paragraph of this Section,
the obligations of the Trustee under Section 8.02 and the second sentence of
Section 8.03 shall survive.
After a deposit and if all other conditions thereto are met, the
Trustee for the Securities of such series shall be required to execute an
instrument acknowledging satisfaction and discharge of this Indenture with
respect to such Securities, except for those surviving obligations specified
above; provided, however, that the Trustee shall not be required to execute such
instrument until the expiration of 90 days after the date of a deposit and that
such instrument may be made subject to the condition that such deposit had been
in compliance with any applicable terms of the Securities of such series
relating to subordination (as contemplated by Article Ten and Section 2.02).
In order to have money available on a payment date to pay the principal
of or interest, if any, on the Securities, the U.S. Government Obligations shall
be payable as to principal or interest on or before such payment date in such
amounts as will provide the necessary money. U.S. Government Obligations shall
not be callable at the issuer's opinion.
Section 8.02. Application of Trust Fund.
The Trustee shall hold in trust money and U.S. Government Obligations
deposited with it pursuant to Section 8.01. Subject to any applicable terms of
the Securities of any series relating to subordination (as contemplated by
Article Ten and Section 2.02), the Trustee shall apply the deposited money and
the money from the U.S. Government Obligations through the Paying Agent and in
accordance with the provisions of the Securities of such series and this
Indenture to the payment of principal of and interest, if any, on the Securities
of such series for the payment of which such money or U.S. Government
Obligations has been deposited with the Trustee.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 8.01 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of outstanding Securities.
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Section 8.03. Repayment to Company.
The Trustee and the Paying Agent shall promptly pay to the Company upon
written request any excess money or securities held by them at any time. The
Trustee and the Paying Agent shall pay to the Company upon written request any
money or securities held by them for the payment of principal or interest, if
any, that remains unclaimed for two years. After that, Holders entitled to the
money or securities must look to the Company for payment unless an applicable
abandoned property law designates another Person.
ARTICLE NINE
Amendments, Supplements and Waivers
Section 9.01. Without Consent of Holders.
The Company and the Trustee may amend or supplement this Indenture or
the Securities of any series without notice to or consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Section 5.01;
(3) to establish the form or terms of Securities of any series
as permitted by Sections 2.01 and 2.02;
(4) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein
conferred upon the Company;
(5) to add any additional Events of Default (and if such Events
of Default are to be applicable to less than all series of Securities,
stating that such Events of Default are expressly being included solely
to be applicable to such series);
(6) to change or eliminate any of the provisions of this
Indenture, provided that, except as otherwise contemplated by Section
2.02(14), any such change or elimination shall become effective only
when there is no Security outstanding of any series created prior
thereto which is entitled to the benefit of such provision;
(7) to add or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance
of Securities in bearer form, registrable or not registrable as to
principal, and with or without interest coupons, or to provide for
uncertificated Securities in addition to certificated Securities (so
long as any "registration-required obligation" within the meaning of
Section 163(f)(2) of the
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Internal Revenue Code of 1986, as amended (the "Code") is in registered
form for purposes of the Code);
(8) to make any change that, in the opinion of the Board of
Directors, does not materially adversely affect the rights of any
Securityholder; or
(9) to comply with any requirement of the SEC in connection with
the qualification of this Indenture under the TIA.
Section 9.02. With Consent of Holders.
The Company and the Trustee may amend or supplement this Indenture or
the Securities of any series without notice to any Securityholder but with the
written consent of the Holders of a majority in aggregate principal amount of
the outstanding Securities of each series affected by such amendment or
supplement. The Holders of a majority in aggregate principal amount of the
outstanding Securities of any series may on behalf of the Holders of all
Securities of such series waive compliance by the Company with any provision of
this Indenture or of Securities of such series without notice to any
Securityholder. Without the consent of each Securityholder affected, however,
the amendment, supplement or waiver, including a waiver pursuant to Section
6.04, may not:
(1) reduce the amount of Securities of any series whose Holders
must consent to an amendment, supplement or waiver;
(2) reduce the rate of or extend the time for payment of
interest on any Security (or, in the case of an Original Issue Discount
Security, reduce the rate of accrual of original issue discount);
(3) reduce the principal of (or any premium payable upon the
redemption of) or extend the fixed maturity of any Security (or, in the
case of an Original Issue Discount Security, reduce the portion of the
principal amount that would be due and payable upon acceleration of the
maturity thereof pursuant to Section 6.02);
(4) change the amount or time of any payment required by any
sinking fund provisions of the Securities of any series;
(5) make any change that materially adversely affects the rights
of a Holder to require the Company to purchase a Security in accordance
with the terms thereof and this Indenture;
(6) waive a default in the payment of the principal of or
interest, if any, on any Security; or
(7) make any Security payable in money or securities other than
that stated in the Security.
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It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed supplement, but it shall
be sufficient if such consent approves the substance thereof.
An amendment to or supplement of this Indenture which changes or
eliminates any covenant or other provision of this Indenture which has expressly
been included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of Securities of such
series with respect to such covenant or other provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Securities of any other
series.
Section 9.03. Compliance with the Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Securities
shall comply with the TIA as then in effect.
Section 9.04. Revocation and Effect of Consents.
A consent to an amendment, supplement, waiver or other action by a
Holder of a Security shall bind the Holder and every subsequent Holder of a
Security or portion of a Security that evidences the same debt as the consenting
Holder's Security, even if notation of the consent is not made on any Security.
Any such Holder or subsequent Holder, however, may revoke the consent as to his
Security or portion of a Security. Such revocation shall be effective only if
the Trustee receives the notice of revocation before the date the amendment,
supplement, waiver or other action becomes effective. An amendment, supplement,
waiver or other action shall become effective on receipt by the Trustee of
written consents from the Holders of the requisite percentage in aggregate
principal amount of the outstanding Securities of the relevant series. After an
amendment, supplement or waiver becomes effective, it shall bind every
Securityholder of each series of Securities so affected.
Section 9.05. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security,
the Trustee may require the Holder of the Security to deliver it to the Trustee.
The Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder. Alternatively, if the Company or the Trustee
so determines, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms.
Section 9.06. Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this Article if the amendment, supplement or waiver does not
adversely affect the rights, duties, immunities or liabilities of the Trustee.
If it does, the Trustee may but need not sign it. The Company may not sign an
amendment or supplement until the Board of Directors approves it.
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In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modification thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture.
ARTICLE TEN
SUBORDINATION
Section 10.01. Subordination Terms.
The payment by the Company of the principal of, premium, if any, and
interest on the Securities of any series shall be subordinated in the manner and
to the extent provided in the Securities of such series, as contemplated by
Sections 2.01 and 2.02.
ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by any of TIA Sections 310 to 317, inclusive, through
operation of TIA Section 318(c), such imposed duties shall control.
Section 11.02. Notices.
Any notice or communication shall be sufficiently given if in writing
and delivered in person or mailed by first-class mail addressed as follows:
If to the Company:
Ohio Edison Company
00 Xxxxx Xxxx Xxxxxx
Xxxxx, Xxxx 00000
Attention: Treasurer
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If to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Securityholder shall be mailed
to him by first-class mail, postage prepaid, at his address as it appears on the
registration books of the Registrar and shall be sufficiently given to him if so
mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. Except for a notice to the Trustee, which is deemed given only
when received, if a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be equivalent of such notice.
Waivers of notice by Holders of Securities shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
Section 11.03. Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with
other Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
Section 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent (including any covenants compliance
with which constitutes a condition precedent), if any, provided for in
this Indenture relating to the proposed action have been complied with;
and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent (including any covenants
compliance with which constitutes a condition precedent) have been
complied with.
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Section 11.05. Statements Required in Certificate or Opinion.
Each Officers' Certificate or Opinion of Counsel with respect to
compliance with a condition or covenant provided for in this Indenture (other
than certificates provided pursuant to Section 4.03) 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 11.06. When Treasury Securities Disregarded.
In determining whether the Holders of the required aggregate principal
amount of Securities of any series have concurred in any direction, waiver or
consent, Securities of such series owned by the Company or by any Affiliate of
the Company shall be disregarded and treated as not outstanding, except that for
the purposes of determining whether the Trustee shall be protected in relying on
any such direction, waiver or consent, only Securities of such series which the
Trustee actually knows are so owned shall be so disregarded.
Section 11.07. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or a meeting of the
Securityholders of all series or any series. The Registrar and Paying Agent may
make reasonable rules for its functions.
Section 11.08. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday, or a day on which banking
institutions in the City of New York, New York, are not required to be open. If
a specified date (including a date for giving notice) is a Legal Holiday, any
action to be taken on such date pursuant to this Indenture or the Securities
(including such conversion) may be taken on the next succeeding day that is not
a Legal Holiday, and, to the extent applicable, no interest, or original issue
discount, as the case may be, shall accrue for the intervening period.
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Section 11.09. Governing Law.
The internal laws of the State of New York shall govern this Indenture
and the Securities.
Section 11.10. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
Section 11.11. No Recourse Against Others.
No past, present or future director, officer, employee or stockholder,
as such, of the Company or the Trustee or any successor of either thereof shall
have any liability for any obligations of the Company or the Trustee under the
Securities or this Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation and all such liability is hereby
waived and released. Such waiver and release are part of the consideration for
the issue of the Securities.
Section 11.12. Successors.
All agreements of the Company in this Indenture and the Securities
shall bind its successor. All agreements of the Trustee in this Indenture shall
bind its successor.
Section 11.13. Duplicate Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
Section 11.14. Table of Contents, Headings, Etc.
The table of contents and the titles and headings of the Articles and
Sections of this Indenture have been inserted for convenience of reference only,
are not to be considered a part hereof, and shall in no way modify or restrict
any of the terms or provisions hereof.
Section 11.15. Acts of Holders.
(a) Any direction, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders
in person or by an agent duly appointed in writing. Except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Proof of execution of any such instrument or of a
writing appointing any such agent, or of the holding by any person of a
Security, shall be sufficient for any purpose of this Indenture and (subject to
Section 7.01)
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conclusive in favor of the Trustee, the Company and any Agent, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or affidavit shall
also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument, or the authority of the Person executing the
same, may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership, principal amount and serial numbers of
outstanding Securities held by any person, and the date of holding the same,
shall be provided by the security register.
(d) If the Company shall solicit from the Holders of any
Securities any direction, consent, waiver or other authorization, the Company
may at its option (but is not obligated to), by or pursuant to a resolution of
the Board of Directors, fix in advance a record date for the determination of
Holders of Securities entitled to give such direction, consent, waiver or other
authorization. Notwithstanding TIA Section 316(c), such record date shall be the
record date specified in or pursuant to such resolution of the Board of
Directors, which shall be a date not earlier than 30 days prior to the first
solicitation of Holders generally in connection therewith and not later than the
date such solicitation is completed. If such a record date is fixed, such
direction, consent, waiver or other authorization may be given before or after
such record date, but only the Holders of Securities of record at the close of
business on such record date shall be deemed to be Holders for the purpose of
determining whether Holders of the requisite proportion of outstanding
Securities have authorized or agreed or consented to such direction, consent,
waiver or other authorization, and for that purpose the outstanding Securities
shall be computed as of such record date; provided that no such consent or other
authorization by the Holders shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than eleven
months after the record date.
(e) Any consent, waiver or other authorization by the Holder of
any Security shall bind such Holder and every future Holder of the same Security
and the Holder of every Security issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee, any Agent or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
Section 11.16. Assignment.
The Company shall have the right at all times to assign any of
its rights or obligations under this Indenture to a direct or indirect wholly
owned Subsidiary of the Company; provided, that, in the event of any such
assignment, the Company shall remain liable for all such obligations.
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SIGNATURES
Dated: OHIO EDISON COMPANY
By:
------------------------------------
Title:
(SEAL)
ATTEST:
------------------------------------
Assistant Secretary
Dated: THE BANK OF NEW YORK
By:
------------------------------------
Title:
(SEAL)
ATTEST:
------------------------------------
Assistant Treasurer
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CROSS-REFERENCE TABLE
TIA INDENTURE
SECTION SECTION
310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08; 7.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.07
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 4.02
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . 11.04
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . 11.04
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 11.05
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(b)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.05
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(c)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
316 (a)(last sentence) . . . . . . . . . . . . . . . . . . N.A.
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . 6.05
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . 6.04
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.06
318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
--------------------
N.A. means Not Applicable. This Cross-Reference Table does not
constitute part of the Indenture
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TABLE OF CONTENTS
Page
----
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02. Other Definitions . . . . . . . . . . . . . . . . . . . . . 3
Section 1.03. Incorporation by Reference of Trust Indenture Act. . . . . 3
Section 1.04. Rules of Construction . . . . . . . . . . . . . . . . . . . 4
ARTICLE TWO
THE SECURITIES
Section 2.01. Forms Generally and Dating . . . . . . . . . . . . . . . . 4
Section 2.02. Amount Unlimited; Issuable in Series . . . . . . . . . . . 5
Section 2.03. Denominations . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.04. Execution and Authentication . . . . . . . . . . . . . . . 8
Section 2.05. Registrar and Paying Agent . . . . . . . . . . . . . . . . 10
Section 2.06. Paying Agent to Hold Money and Securities in Trust . . . . 10
Section 2.07. Securityholder Lists . . . . . . . . . . . . . . . . . . . 11
Section 2.08. Transfer and Exchange . . . . . . . . . . . . . . . . . . . 11
Section 2.09. Replacement Securities . . . . . . . . . . . . . . . . . . 13
Section 2.10. Outstanding Securities . . . . . . . . . . . . . . . . . . 14
Section 2.11. Temporary Securities . . . . . . . . . . . . . . . . . . . 14
Section 2.12. Cancellation . . . . . . . . . . . . . . . . . . . . . . . 15
Section 2.13. Payment of Interest; Defaulted Interest . . . . . . . . . . 15
Section 2.14. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . 16
Section 2.15. Securities in Global Form . . . . . . . . . . . . . . . . . 16
Section 2.16. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE THREE
REDEMPTION
Section 3.01. Applicability of Article . . . . . . . . . . . . . . . . . 18
Section 3.02. Notices to Trustee . . . . . . . . . . . . . . . . . . . . 18
Section 3.03. Selection of Securities to be Redeemed . . . . . . . . . . 19
Section 3.04. Notice of Redemption . . . . . . . . . . . . . . . . . . . 19
Section 3.05. Effect of Notice of Redemption . . . . . . . . . . . . . . 20
Section 3.06. Deposit of Redemption Price . . . . . . . . . . . . . . . . 20
Section 3.07. Securities Redeemed in Part . . . . . . . . . . . . . . . . 20
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Page
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ARTICLE FOUR
COVENANTS
Section 4.01. Payment of Securities . . . . . . . . . . . . . . . . . . . 21
Section 4.02. SEC Reports . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 4.03. Compliance Certificate . . . . . . . . . . . . . . . . . . 21
Section 4.04. Corporate Existence . . . . . . . . . . . . . . . . . . . . 22
Section 4.05. Calculation of Original Issue Discount . . . . . . . . . . 22
ARTICLE FIVE
SUCCESSOR CORPORATION
Section 5.01. When Company May Merge, etc . . . . . . . . . . . . . . . . 22
ARTICLE SIX
DEFAULTS AND REMEDIES
Section 6.01. Events of Default . . . . . . . . . . . . . . . . . . . . . 22
Section 6.02. Acceleration . . . . . . . . . . . . . . . . . . . . . . . 24
Section 6.03. Other Remedies . . . . . . . . . . . . . . . . . . . . . . 24
Section 6.04. Waiver of Existing Defaults . . . . . . . . . . . . . . . . 25
Section 6.05. Control by Majority . . . . . . . . . . . . . . . . . . . . 25
Section 6.06. Limitation of Suits . . . . . . . . . . . . . . . . . . . . 25
Section 6.07. Rights of Holders to Receive Payment and to Convert . . . . 26
Section 6.08. Collection Suit by Trustee . . . . . . . . . . . . . . . . 26
Section 6.09. Trustee May File Proofs of Claim . . . . . . . . . . . . . 26
Section 6.10. Priorities . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 6.11. Undertaking for Costs . . . . . . . . . . . . . . . . . . . 27
ARTICLE SEVEN
TRUSTEE
Section 7.01. Duties of Trustee . . . . . . . . . . . . . . . . . . . . . 27
Section 7.02. Rights of Trustee . . . . . . . . . . . . . . . . . . . . . 28
Section 7.03. Individual Rights of Trustee . . . . . . . . . . . . . . . 29
Section 7.04. Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . 29
Section 7.05. Notice of Defaults . . . . . . . . . . . . . . . . . . . . 30
Section 7.06. Reports by Trustee to Holders . . . . . . . . . . . . . . . 30
Section 7.07. Compensation and Indemnity . . . . . . . . . . . . . . . . 30
Section 7.08. Replacement of Trustee . . . . . . . . . . . . . . . . . . 31
Section 7.09. Successor Trustee by Merger, etc . . . . . . . . . . . . . 32
Section 7.10. Eligibility; Disqualification . . . . . . . . . . . . . . . 32
Section 7.11. Preferential Collection of Claims Against Company . . . . . 32
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Page
----
ARTICLE EIGHT
DISCHARGE OF INDENTURE
Section 8.01. Termination of Company's Obligations . . . . . . . . . . . 32
Section 8.02. Application of Trust Fund . . . . . . . . . . . . . . . . . 33
Section 8.03. Repayment to Company . . . . . . . . . . . . . . . . . . . 34
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01. Without Consent of Holders . . . . . . . . . . . . . . . . 34
Section 9.02. With Consent of Holders . . . . . . . . . . . . . . . . . . 35
Section 9.03. Compliance with the Trust Indenture Act . . . . . . . . . . 36
Section 9.04. Revocation and Effect of Consents . . . . . . . . . . . . . 36
Section 9.05. Notation on or Exchange of Securities . . . . . . . . . . . 36
Section 9.06. Trustee to Sign Amendments, etc . . . . . . . . . . . . . . 36
ARTICLE TEN
SUBORDINATION
Section 10.01. Subordination Terms. . . . . . . . . . . . . . . . . . . . 37
ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls . . . . . . . . . . . . . . . 37
Section 11.02. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 11.03. Communication by Holders with Other Holders . . . . . . . . 38
Section 11.04. Certificate and Opinion as to Conditions Precedent . . . . 38
Section 11.05. Statements Required in Certificate or Opinion . . . . . . . 39
Section 11.06. When Treasury Securities Disregarded . . . . . . . . . . . 39
Section 11.07. Rules by Trustee and Agents . . . . . . . . . . . . . . . . 39
Section 11.08. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . 39
Section 11.09. Governing Law . . . . . . . . . . . . . . . . . . . . . . . 40
Section 11.10. No Adverse Interpretation of Other Agreements . . . . . . . 40
Section 11.11. No Recourse Against Others . . . . . . . . . . . . . . . . 40
Section 11.12. Successors . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 11.13. Duplicate Originals . . . . . . . . . . . . . . . . . . . . 40
Section 11.14. Table of Contents, Headings, Etc . . . . . . . . . . . . . 40
Section 11.15. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . 40
Section 11.16. Assignment . . . . . . . . . . . . . . . . . . . . . . . . 41
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