CENTRAL POWER AND LIGHT COMPANY
AND
THE BANK OF NEW YORK,
AS TRUSTEE
INDENTURE
Dated as of May 1, 1997
Junior Subordinated Debentures
CROSS-REFERENCE TABLE
Section of
Trust Indenture Act Section of
of 1939, as amended Indenture
310(a) 7.09
310(b) 7.08
7.10
310(c) Inapplicable
311(a) 7.13
311(c) Inapplicable
312(a) 5.01
5.02(a)
312(b) 5.02(c)
5.02(d)
312(c) 5.02(e)
313(a) 5.04(a)
313(b) 5.04(b)
313(c) 5.04(a)
5.04(b)
313(d) 5.04(c)
314(a) 5.03
314(b) Inapplicable
314(c) 13.06
314(d) Inapplicable
314(e) 13.06
314(f) Inapplicable
315(a) 7.01(a)
7.02
315(b) 6.07
315(c) 7.01
315(d) 7.01(b)
7.01(c)
315(e) 6.08
316(a) 6.06
8.04
316(b) 6.04
316(c) 8.01
317(a) 6.02
317(b) 4.03
318(a) 13.08
TABLE OF CONTENTS*
Page
RECITALS..................................................................... 1
ARTICLE ONE
Definitions............................... 2
SECTION 1.01 Definitions....................................... 2
ARTICLE TWO
Issue, Description, Terms, Execution,
Registration and Exchange of Debentures........ 6
SECTION 2.01 Amount Unlimited; Issuable
in Series......................................... 6
SECTION 2.02 Forms Generally................................... 8
SECTION 2.03 Denominations..................................... 8
SECTION 2.04 Execution, Authentification,
Delivery and Dating............................... 11
SECTION 2.05 Registration, Registration of
Transfer and Exchange............................. 12
SECTION 2.06 Temporary Debentures.............................. 13
SECTION 2.07 Mutilated, Destroyed, Lost
and Stolen Debentures............................. 14
SECTION 2.08 Cancellation by Trustee........................... 15
SECTION 2.09 Benefits of Indenture............................. 15
SECTION 2.10 Authenticating Agent.............................. 15
SECTION 2.11 Global Debenture.................................. 16
SECTION 2.12 Shortening of Stated Maturity..................... 19
SECTION 2.13 CUSIP Numbers......................................19
ARTICLE THREE
Redemption of Debentures and Sinking Fund Provisions....................... 19
SECTION 3.01 Applicability of Article: Redemption.............. 19
SECTION 3.02 Election to Redeem; Notice to Trustee............. 19
SECTION 3.03 Debentures Payable on Redemption Date............. 21
SECTION 3.04 Applicability of Article:
Sinking Fund...................................... 21
SECTION 3.05 Satisfaction of Sinking Fund
Payment with Debentures........................... 22
SECTION 3.06 Redemption of Debentures for
Sinking Fund...................................... 22
ARTICLE FOUR
Particular Covenants of the Company................................ 22
* This Table of Contents does not constitute part of the Indenture
and should not have any bearing upon the interpretation of any
of its terms or provisions.
SECTION 4.01 Payment of Principal, Premium
and Interest...................................... 23
SECTION 4.02 Maintenance of Office or Agency................... 23
SECTION 4.03 Money for Debenture Payments to
Be Held in Trust.................................. 23
SECTION 4.04 Maintenance of Trustee............................ 24
SECTION 4.05 Corporate Existence............................... 24
SECTION 4.06 Restriction on Payment of Dividends............... 25
ARTICLE FIVE
Debentureholders' Lists and Reports by the Company
and the Trustee......................................... 25
SECTION 5.01 List of Holders................................... 25
SECTION 5.02 Maintenance of List............................... 26
SECTION 5.03 Company Reports................................... 27
SECTION 5.04 Trustee Report.................................... 29
ARTICLE SIX
Remedies of the Trustee and Debentureholders
on Event of Default....................................... 30
SECTION 6.01 Events of Default; Acceleration,
Rescission and Annulment.......................... 30
SECTION 6.02 Collection of Indebtedness and
Suits for Enforcement by Trustee.................. 33
SECTION 6.03 Application of Money Collected.................... 34
SECTION 6.04 Limitation on Suits............................... 35
SECTION 6.05 Rights and Remedies Cumulative.................... 36
SECTION 6.06 Control by Holders of Securities.................. 36
SECTION 6.07 Notice of Default................................. 37
SECTION 6.08 Undertaking for Costs............................. 38
ARTICLE SEVEN
Concerning the Trustee.......................... 38
SECTION 7.01 Certain Duties and Responsibilities............... 38
SECTION 7.02 Certain Rights of Trustee......................... 40
SECTION 7.03 Not Responsible for Recitals or
Issuance of Debentures............................ 42
SECTION 7.04 May Hold Debentures............................... 42
SECTION 7.05 Money Held in Trust............................... 42
SECTION 7.06 Compensation and Reimbursement.................... 42
SECTION 7.07 Reliance on Officer's Certificate................. 43
SECTION 7.08 Conflicting Interests............................. 43
SECTION 7.09 Corporate Trustee Required; Eligibility........... 44
SECTION 7.10 Resignation and Removal; Appointment
of Successor...................................... 44
SECTION 7.11 Acceptance of Appointment by Successor............ 46
SECTION 7.12 Merger, Conversion or Consolidation............... 47
SECTION 7.13 Collection of Claims Against Company.............. 48
ARTICLE EIGHT
Concerning the Debentureholders................................. 48
SECTION 8.01 Actions; Record Date.............................. 48
SECTION 8.02 Proof of Action................................... 48
SECTION 8.03 Persons Considered Holders........................ 49
SECTION 8.04 Debentures Held by Company or
Affiliates........................................ 49
SECTION 8.05 Revocation of Action.............................. 50
ARTICLE NINE
Supplemental Indentures.......................... 50
SECTION 9.01 Supplemental Indentures Without
Consent of Holders................................ 50
SECTION 9.02 Supplemental Indentures With Consent
of Holders........................................ 51
SECTION 9.03 Effect of Supplemental Indentures................. 52
SECTION 9.04 Reference in Debentures to
Supplemental Indentures........................... 53
SECTION 9.05 Reliance by Trustee............................... 53
ARTICLE TEN
Consolidation, Xxxxxx and Sale............................. 53
SECTION 10.01 Company May Consolidate, etc., on
Certain Terms..................................... 53
SECTION 10.02 Substitution of Successor
Corporation....................................... 54
SECTION 10.03 Reliance by Trustee............................... 55
ARTICLE ELEVEN
Satisfaction and Discharge of Indenture;
Unclaimed Moneys......................................... 55
SECTION 11.01 Satisfaction and Discharge of
Debentures........................................ 55
SECTION 11.02 Satisfaction and Discharge of
Indenture......................................... 56
SECTION 11.03 Delivery of Opinion of Counsel.................... 56
SECTION 11.04 Application of Trust Money........................ 57
SECTION 11.05 Release of Paying Agent........................... 57
SECTION 11.06 Return of Unclaimed Money......................... 57
ARTICLE TWELVE
Immunity of Incorporators, Stockholders, Officers
and Directors.............................................. 57
SECTION 12.01 Liability Solely Corporate........................ 57
ARTICLE THIRTEEN
Miscellaneous Provisions.......................... 58
SECTION 13.01 Indenture Binding on Successor
Company........................................... 58
SECTION 13.02 Application of Indenture Provisions
to Successor Company.............................. 58
SECTION 13.03 Notice............................................ 58
SECTION 13.04 Governing Law..................................... 59
SECTION 13.05 Form of Certificate or Opinion
for Trustee....................................... 59
SECTION 13.06 Opinion of Counsel Provided With
Execution of Indenture............................ 59
SECTION 13.07 Distribution Date Not a Business Day.............. 59
SECTION 13.08 Trust Indenture Act Controls...................... 60
SECTION 13.09 Counterparts...................................... 60
SECTION 13.10 Severability...................................... 60
SECTION 13.11 Assignment to Affiliates.......................... 60
SECTION 13.12 Debenture Constitutes Indebtedness................ 60
ARTICLE FOURTEEN
Subordination of Debentures......................... 61
SECTION 14.01 Debentures Subordinate to Senior
Indebtedness...................................... 61
SECTION 14.02 Payment Over of Proceeds of Debentures............ 61
SECTION 14.03 Priority of Senior Indebtedness................... 62
SECTION 14.04 Subrogation....................................... 63
SECTION 14.05 Trustee as Attorney-In-Fact of
Debentureholders for Subordination................ 64
SECTION 14.06 Notice to Trustee to Effectuate
Subordination..................................... 64
SECTION 14.07 Trustee as Holder of Senior Indebtedness;
No Fiduciary Duty to Other Holders
of Senior Indebtedness............................ 65
SECTION 14.08 Rights of Holders of Senior
Indebtedness Not Impaired......................... 66
THIS INDENTURE, dated as of the first day of May, 1997,
between CENTRAL POWER AND LIGHT COMPANY, a corporation duly organized and
existing under the laws of the State of Texas (hereinafter sometimes referred to
as the "Company"), and THE BANK OF NEW YORK, a New York banking corporation
organized and existing under the laws of the State of New York, as trustee
(hereinafter sometimes referred to as the "Trustee"):
WHEREAS, for its lawful corporate purposes, the Company has
duly authorized the execution and delivery of this Indenture to provide for the
issuance of debentures (hereinafter referred to as the "Debentures"), in an
unlimited aggregate principal amount to be issued from time to time in one or
more series as in this Indenture provided as registered Debentures without
coupons, to be authenticated by the certificate of the Trustee;
WHEREAS, to provide the terms and conditions upon which the
Debentures are to be authenticated, issued and delivered, the Company has duly
authorized the execution of this Indenture;
WHEREAS, the Debentures and the certificate of authentication
to be borne by the Debentures (the "Certificate of Authentication") are to be
substantially in such forms as may be approved by the Board of Directors (as
defined below) or set forth in any indenture supplemental to this Indenture; and
WHEREAS, all acts and things necessary to make the Debentures
issued pursuant hereto, when executed by the Company and authenticated and
delivered by the Trustee as in this Indenture provided, the valid, binding and
legal obligations of the Company, and to constitute these presents a valid
indenture and agreement according to its terms, have been done and performed or
will be done and performed prior to the issuance of the Debentures, and the
execution of this Indenture and the issuance hereunder of the Debentures have
been or will be prior to issuance in all respects duly authorized, and the
Company, in the exercise of the legal right and power in it vested, executes
this Indenture and proposes to make, execute, issue and deliver the Debentures;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which
the Debentures are and are to be authenticated, issued and delivered, and in
consideration of the premises, of the purchase and acceptance of the Debentures
by the holders thereof and of the sum of one dollar ($1.00) to it duly paid by
the Trustee at the execution of these presents, the receipt whereof is hereby
acknowledged, the Company covenants and agrees with the Trustee, for the equal
and proportionate benefit (subject to the provisions of this Indenture) of the
respective holders from time to time of the Debentures, without any
discrimination, preference or priority of any one Debenture over any other by
reason of priority in the time of issue, sale or negotiation thereof, or
otherwise, except as provided herein, as follows:
ARTICLE ONE
Definitions
SECTION 1.01. The terms defined in this Section (except
as in this Indenture otherwise expressly provided or unless the context
otherwise requires) for all purposes of this Indenture, any resolution of the
Board of Directors of the Company and of any indenture supplemental hereto shall
have the respective meanings specified in this Section. All other terms used in
this Indenture which are defined in the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act") or which are by reference in the Trust Indenture Act
defined in the Securities Act of 1933, as amended (the "Securities Act"),
(except as herein otherwise expressly provided or unless the context otherwise
requires), shall have the meanings assigned to such terms in the Trust Indenture
Act and in the Securities Act as in force at the date of the execution of this
instrument.
"Authenticating Agent" shall mean an authenticating agent with
respect to all or any of the series of Debentures, as the case may be, appointed
with respect to all or any series of the Debentures, as the case may be, by the
Trustee pursuant to Section 2.10.
"Board of Directors" shall mean the Board of Directors of the
Company, or any committee of such Board duly authorized to act on behalf thereof
hereunder.
"Board Resolution" shall mean a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the date
of such certification.
"Business Day" shall mean, with respect to any series of
Debentures, any day other than (i) a Saturday or Sunday or (ii) a day on which
banking institutions in the Borough of Manhattan, the City and State of New York
or any city in which the Trustee's Corporate Trust Office is located, are
authorized or required to close.
"Certificate" shall mean a certificate signed by the principal
executive officer, principal financial officer or principal accounting officer
of the Company. The Certificate need not comply with the provisions of Section
13.05.
"Corporate Trust Office" shall mean the office of the Trustee
at which at any particular time its corporate trust business shall be
principally administered, which office at the date of the execution of this
Indenture is located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention:
Corporate Trust Trustee Administration.
"Company" shall mean Central Power and Light Company, a
corporation duly organized and existing under the laws of the State of Texas,
and, subject to the provisions of Article Ten, also includes its successors and
assigns.
"Debenture" or "Debentures" shall mean any Debenture or
Debentures, as the case may be, authenticated and delivered under this
Indenture.
"Debentureholder," "holder of Debentures," "registered holder"
or other similar term shall mean the person or persons in whose name or names a
particular Debenture shall be registered on the books of the Company kept for
that purpose in accordance with the terms of this Indenture.
"default" shall mean any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of Default.
"Depositary" shall mean, with respect to Debentures of any
series for which the Company shall determine that such Debentures will be issued
as a Global Debenture, The Depository Trust Company, New York, New York, another
clearing agency or any successor registered as a clearing agency under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or other
applicable statute or regulation, which, in each case, shall be designated by
the Company pursuant to either Section 2.01 or 2.11.
"Event of Default" shall mean, with respect to Debentures of a
particular series, any event specified in Section 6.01, continued for the period
of time, if any, therein designated.
"Fixed Maturity" shall mean when used with respect to any
Debenture or any installment of principal thereof, the date specified pursuant
to the terms of such Debenture as the fixed date on which principal of such
Debenture or such installment of principal is due and payable, as such date may
be shortened as provided pursuant to the terms of such Debenture and this
Indenture.
"Global Debenture" shall mean, with respect to any series of
Debentures, a Debenture executed by the Company and delivered by the Trustee to
the Depositary or pursuant to the Depositary's instruction, all in accordance
with the Indenture, which shall be registered in the name of the Depositary or
its nominee.
"Governmental Obligations" shall mean securities that are (i)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of a person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any such Governmental
Obligation or a specific payment of principal of or interest on any such
Governmental Obligation held by such custodian for the account of the holder of
such depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the specific payment of principal of or interest on the Governmental
Obligation evidenced by such depository receipt.
"Indenture" shall mean this instrument as originally executed,
or, if amended or supplemented as herein provided, as so amended or
supplemented.
"Interest Payment Date," when used with respect to any
installment of interest on a Debenture of a particular series, shall mean the
date specified in such Debenture, a Board Resolution or an indenture
supplemental hereto with respect to that series as the fixed date on which an
installment of interest with respect to Debentures of that series is due and
payable.
"Officer's Certificate" shall mean a certificate signed by the
President, General Manager, Treasurer or an Assistant Treasurer, Controller or
an Assistant Controller or the Secretary or an Assistant Secretary of the
Company. Each such certificate shall include the statements provided for in
Section 13.05, if and to the extent required by the provisions thereof.
"Opinion of Counsel" shall mean an opinion in writing signed
by legal counsel, who may be counsel for the Company, reasonably acceptable to
the Trustee. Each such opinion shall include the statements provided for in
Section 13.05, if and to the extent required by the provisions thereof.
"outstanding", when used with reference to Debentures of any
series, shall mean, subject to the provisions of Section 8.04, as of any
particular time, all Debentures of that series theretofore authenticated and
delivered by the Trustee under this Indenture, except (a) Debentures theretofore
canceled by the Trustee or any paying agent, or delivered to the Trustee or any
paying agent for cancellation or which have previously been canceled; (b)
Debentures or portions thereof for the payment or redemption of which moneys or
Governmental Obligations in the necessary amount shall have been deposited in
trust with the Trustee or with any paying agent (other than the Company) or
shall have been set aside and segregated in trust by the Company (if the Company
shall act as its own paying agent); provided, however, that if such Debentures
or portions of such Debentures are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given as in Article Three provided, or
provision satisfactory to the Trustee shall have been made for giving such
notice; (c) Debentures in lieu of or in substitution for which other Debentures
shall have been authenticated and delivered pursuant to the terms of Section
2.07; and (d) Debentures paid pursuant to Section 2.07.
"Predecessor Debenture" of any particular Debenture shall mean
every previous Debenture evidencing all or a portion of the same debt as that
evidenced by that particular Debenture; and, for the purposes of this
definition, any Debenture authenticated and delivered under Section 2.07 in lieu
of a lost, destroyed or stolen Debenture shall be deemed to evidence the same
debt as the lost, destroyed or stolen Debenture.
"Responsible Officer," when used with respect to the Trustee,
shall mean the chairman of the board of directors, president, any vice
president, secretary, treasurer, any trust officer, any corporate trust officer
or any other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with the particular subject.
"Senior Indebtedness" of the Company shall mean the principal
of, and premium, if any, and interest on and any other payment due pursuant to
any of the following, whether outstanding at the date of execution of this
Indenture or thereafter incurred, created or assumed: (a) all indebtedness of
the Company evidenced by notes, debentures, bonds or other securities sold by
the Company for money, (b) all indebtedness of others of the kinds described in
the preceding clause (a) assumed by or guaranteed in any manner by the Company
or in effect guaranteed by the Company through an agreement to purchase,
contingent or otherwise, (c) all renewals, extensions or refundings of
indebtedness of the kinds described in either of the preceding clauses (a) and
(b) and (d) any payment of money relating to any lease which is capitalized on
the balance sheet or consolidated balance sheet, as the case may be, of the
Company, in accordance with generally accepted accounting principles as in
effect from time to time, unless, in the case of any particular indebtedness,
renewal, extension, refunding or lease payment, the instrument creating or
evidencing the same or the assumption or guarantee of the same expressly
provides that such indebtedness, renewal, extension, refunding or lease payment
is not superior in right of payment to or is pari passu with the Debentures.
Such Senior Indebtedness shall continue to be Senior Indebtedness and entitled
to the benefits of the subordination provisions set forth in Article Fourteen of
this Indenture irrespective of any amendment, modification or waiver of any term
of such Senior Indebtedness.
"Trustee" shall mean The Bank of New York and, subject to the
provisions of Article Seven, shall also include its successors and assigns, and
if at any time there is more than one person acting in such capacity hereunder,
"Trustee" means each such person. The term "Trustee" as used with respect to a
particular series of the Debentures means the trustee with respect to that
series.
"Trust Indenture Act," subject to the provisions of Sections
9.01, 9.02 and 10.01, shall mean the Trust Indenture Act of 1939, as amended and
in effect at the date of execution of this Indenture.
ARTICLE TWO
Issue, Description, Terms, Execution,
Registration and Exchange of Debentures
SECTION 2.01. The aggregate principal amount of Debentures
which may be authenticated and delivered under this Indenture is unlimited.
The Debentures may be issued in one or more series up to the
aggregate principal amount of Debentures of that series from time to time
authorized by or pursuant to a Board Resolution or pursuant to one or more
indentures supplemental hereto, prior to the initial issuance of Debentures of a
particular series. Prior to the initial issuance of Debentures of any series,
there shall be established in or pursuant to a Board Resolution delivered to the
Trustee, and set forth in an Officer's Certificate delivered to the Trustee, or
established in one or more indentures supplemental hereto:
(1) the title of the Debentures of the series (which
shall distinguish the Debentures of that series from all other
Debentures);
(2) any limit upon the aggregate principal amount of the
Debentures of that series which may be authenticated and delivered
under this Indenture (except for Debentures authenticated and delivered
upon registration of transfer of, in exchange for or in lieu of other
Debentures of that series);
(3) the date or dates on which the principal of the
Debentures of that series is payable or the method of determination
thereof (including any provision for shortening thereof);
(4) the rate or rates at which the Debentures of that
series shall bear interest, if any, or the manner of calculation of
such rate or rates;
(5) the date or dates from which such interest shall accrue,
the Interest Payment Dates on which such interest will be payable or
the manner of determination of such Interest Payment Dates and the
record dates for the determination of holders to whom interest is
payable on any such Interest Payment Dates;
(6) the right of the Company, if any, to extend or defer
the interest payment periods and the duration of such extension or
deferral;
(7) the period or periods within which, the price or prices at
which and the terms and conditions upon which Debentures of that series
may be redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or
purchase Debentures of that series pursuant to any sinking fund or
analogous provisions (including payments made in cash in anticipation
of future sinking fund obligations) or at the option of a holder
thereof and the period or periods within which, the price or prices at
which and the terms and conditions upon which, Debentures of that
series shall be redeemed or purchased, in whole or in part, pursuant to
such obligation;
(9) the form of the Debentures of that series, including the
form of the Certificate of Authentication for that series;
(10) if denominations of other than $25 or any integral
multiple thereof, the denominations in which Debentures of that series
shall be issuable;
(11) whether the Debentures are issuable as a Global Debenture
and, in such case, the identity of the Depositary for that series; and
(12) any and all other terms with respect to that series
(which terms shall not be inconsistent with the terms of this
Indenture).
All Debentures of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to any such Board Resolution or in any indentures supplemental
hereto.
If any of the terms of that series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officer's Certificate setting forth the terms of that series.
SECTION 2.02. The Debentures of any series and the
Certificate of Authentication to be borne by such Debentures shall be
substantially of the tenor and purport as set forth in one or more indentures
supplemental hereto or as provided in a Board Resolution and as set forth in an
Officer's Certificate, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the Company may deem appropriate and as are
not inconsistent with the provisions of this Indenture, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange on which Debentures of that series
may be listed, or to conform to usage.
SECTION 2.03. The Debentures shall be issuable as registered
Debentures and in denominations of $25 or any integral multiple thereof,
subject to Section 2.01(10). The Debentures of a particular series shall bear
interest payable on the dates and at the rate or rates specified with respect to
that series. The principal of and the interest on the Debentures of any series,
as well as any premium thereon in case of redemption thereof prior to maturity,
shall be payable in the coin or currency of the United States of America which
at the time is legal tender for public and private debt, at the office or agency
of the Company maintained for that purpose in the Borough of Manhattan, the City
and State of New York (which, unless changed, shall be a Corporate Trust Office
or agency of the Trustee). At the Company's option, payments on the Debentures
of any series may also be made (i) by checks mailed by the Trustee to the
holders entitled thereto at their registered addresses or (ii) to a holder of
$1,000,000 or more in aggregate principal amount of the Debentures who has
delivered a written request to the Trustee at least 14 days prior to the
relevant Interest Payment Date electing to have payments made by wire transfer
to a designated account in the United States, by wire transfer of immediately
available funds to such designated account; provided that, in either case, the
payment of principal with respect to any Debenture will be made only upon
surrender of that Debenture to the Trustee. Each Debenture shall be dated the
date of its authentication. Interest on the Debentures shall be computed on the
basis of a 360-day year composed of twelve 30-day months and, for any period
shorter than a full calendar month, on the basis of the actual number of days
elapsed in such period.
The interest installment on any Debenture which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date for
Debentures of that series shall be paid to the person in whose name that
Debenture (or one or more Predecessor Debentures) is registered at the close of
business on the regular record date for such interest installment. In the event
that any Debenture of a particular series or portion thereof is called for
redemption and the redemption date is subsequent to a regular record date with
respect to any Interest Payment Date and prior to such Interest Payment Date,
interest on that Xxxxxxxxx will be paid upon presentation and surrender of that
Xxxxxxxxx as provided in Section 3.03.
Any interest on any Debenture which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date for
Debentures of the same series (herein called "Defaulted Interest") shall
forthwith cease to be payable to the registered holder on the relevant regular
record date by virtue of having been such holder; and such Defaulted Interest
shall be paid by the Company, at its election, as provided in clause (1) or
clause (2) below:
(1) The Company may make payment of any Defaulted Interest on
Debentures to the persons in whose names such Debentures (or their
respective Predecessor Debentures) are registered at the close of
business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner: the Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Debenture and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a special record date
for the payment of such Defaulted Interest which shall not be more than
15 nor less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the Company of
such special record date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the special record date therefor to be mailed, first-class
postage prepaid, to each Debentureholder at his or her address as it
appears in the Debenture Register (as hereinafter defined), not less
than 10 days prior to such special record date. Notice of the proposed
payment of such Defaulted Interest and the special record date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid
to the persons in whose names such Debentures (or their respective
Predecessor Debentures) are registered on such special record date and
shall be no longer payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on
any Debentures in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Debentures may be
listed, and upon such notice as may be required by such exchange if,
after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Unless otherwise set forth in a Board Resolution or one or
more indentures supplemental hereto establishing the terms of any series of
Debentures pursuant to Section 2.01 hereof, the term "regular record date" as
used in this Section with respect to a series of Debentures with respect to any
Interest Payment Date for that series shall mean either the 15th day of the
month immediately preceding the month in which an Interest Payment Date
established for that series pursuant to Section 2.01 hereof shall occur, if such
Interest Payment Date is the first day of a month, or the last day of the month
immediately preceding the month in which an Interest Payment Date established
for such series pursuant to Section 2.01 hereof shall occur, if such Interest
Payment Date is the 15th day of a month, whether or not such date is a Business
Day.
Subject to the foregoing provisions of this Section, each
Debenture of a series delivered under this Indenture upon transfer of or in
exchange for or in lieu of any other Debenture of such series shall carry the
rights to interest accrued and unpaid, and to accrue, that were carried by such
other Debenture.
SECTION 2.04. The Debentures shall, subject to the
provisions of Section 2.06, be printed on steel engraved borders or fully
or partially engraved, or legibly typed, as the proper officers of the Company
may determine, and shall be signed on behalf of the Company by its President or
General Manager, under its corporate seal attested by its Secretary or one of
its Assistant Secretaries. The signature of the President or General Manager
and/or the signature of the Secretary or an Assistant Secretary in attestation
of the corporate seal, upon the Debentures, may be in the form of a facsimile
signature of a present or any future President or General Manager and of a
present or any future Secretary or Assistant Secretary and may be imprinted or
otherwise reproduced on the Debentures and for that purpose the Company may use
the facsimile signature of any person who shall have been a President or General
Manager, or of any person who shall have been a Secretary or Assistant
Secretary, notwithstanding the fact that at the time the Debentures shall be
authenticated and delivered or disposed of that person shall have ceased to be
the President or General Manager, or the Secretary or an Assistant Secretary, of
the Company, as the case may be. The seal of the Company may be in the form of a
facsimile of the seal of the Company and may be impressed, affixed,
imprinted or otherwise reproduced on the Debentures.
Only such Debentures as shall bear thereon a Certificate of
Authentication substantially in the form established for such Debentures,
executed manually by an authorized signatory of the Trustee, or by any
Authenticating Agent with respect to such Debentures, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose. Such
certificate executed by the Trustee, or by any Authenticating Agent appointed by
the Trustee with respect to such Debentures, upon any Debenture executed by the
Company shall be conclusive evidence that the Debenture so authenticated has
been duly authenticated and made available for delivery hereunder and that the
holder is entitled to the benefits of this Indenture.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Debentures of any series
executed by the Company to the Trustee for authentication, together with a
written order of the Company for the authentication and delivery of such
Debentures, signed by its President or General Manager and its Treasurer or any
Assistant Treasurer, and the Trustee in accordance with such written order shall
authenticate and make available for delivery such Debentures.
In authenticating such Debentures and accepting the additional
responsibilities under this Indenture in relation to such Debentures, the
Trustee shall be entitled to receive, and (subject to Section 7.01) shall be
fully protected in relying upon, (i) an Opinion of Counsel and (ii) an Officer's
Certificate, each stating that the form and terms thereof have been established
in conformity with the provisions of this Indenture. Each Opinion of Counsel and
Officer's Certificate delivered pursuant to this Section 2.04 shall include all
statements prescribed by Section 13.05(b) hereof.
The Trustee shall not be required to authenticate such
Debentures if the issue of such Debentures pursuant to this Indenture will, in
the good faith judgment of the Trustee, affect the Trustee's own rights, duties
or immunities under the Debentures and this Indenture or otherwise in a manner
that is not reasonably acceptable to the Trustee.
SECTION 2.05. (a) Debentures of any series may be exchanged
upon presentation thereof at the office or agency of the Company designated
for such purpose in the Borough of Manhattan, the City and State of New York,
for other Debentures of such series of authorized denominations, and for a like
aggregate principal amount, upon payment of a sum sufficient to cover any tax or
other governmental charge in relation thereto, all as provided in this Section.
In respect of any Debentures so surrendered for exchange, the Company shall
execute, the Trustee shall authenticate and such office or agency shall make
available for delivery in exchange therefor the Debenture or Debentures of the
same series which the Debentureholder making the exchange shall be entitled to
receive, bearing numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its office
or agency designated for such purpose in the Borough of Manhattan, the City and
State of New York, or such other location designated by the Company, a register
or registers (herein referred to as the "Debenture Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall register
the Debentures and the transfers of Debentures as in this Article provided and
which at all reasonable times shall be open for inspection by the Trustee. The
registrar for the purpose of registering Debentures and transfer of Debentures
as herein provided shall be appointed as authorized by Board Resolution (the
"Debenture Registrar").
Upon surrender for transfer of any Debenture at the office or
agency of the Company designated for such purpose in the Borough of Manhattan,
the City and State of New York, the Company shall execute, the Trustee shall
authenticate and such office or agency shall make available for delivery in the
name of the transferee or transferees a new Debenture or Debentures of the same
series as the Debenture presented for a like aggregate principal amount.
All Debentures presented or surrendered for exchange or
registration of transfer, as provided in this Section, shall be accompanied (if
so required by the Company or the Debenture Registrar) by a written instrument
or instruments of transfer, in form satisfactory to the Company and the
Debenture Registrar, duly executed by the registered holder or by his duly
authorized attorney in writing.
(c) Except as provided in the first paragraph of Section 2.07,
no service charge shall be made for any exchange or registration of transfer of
Debentures, or issue of new Debentures in case of partial redemption of any
series, but the Company may require payment of a sum sufficient to cover any tax
or other governmental charge in relation thereto, other than exchanges pursuant
to Section 2.06, the second paragraph of Section 3.03 and Section 9.04 not
involving any transfer.
(d) The Company shall neither be required (i) to issue,
exchange or register the transfer of any Debentures of any series during a
period beginning at the opening of business 15 days before the day of selection
for redemption of Debentures of that series and ending at the close of business
on the earliest date on which the relevant notice of redemption is deemed to
have been given to all holders of Debentures of that series to be redeemed, nor
(ii) to register the transfer of or exchange any Debentures of any series or
portions thereof called for redemption, except the unredeemed portion of any
Debentures being redeemed in part. The provisions of this Section 2.05 are, with
respect to any Global Debenture, subject to Section 2.11 hereof.
SECTION 2.06. Pending the preparation of definitive
Debentures of any series, the Company may execute, and the Trustee shall
authenticate and make available for delivery, temporary Debentures (printed,
lithographed or typewritten) of any authorized denomination, and substantially
in the form of the definitive Debentures in lieu of which they are issued, but
with such omissions, insertions and variations as may be appropriate for
temporary Debentures, all as may be determined by the Company. Every temporary
Debenture of any series shall be executed by the Company and be authenticated by
the Trustee upon the same conditions and in substantially the same manner, and
with like effect, as the definitive Debentures of that series in accordance with
the terms of Section 2.04 hereof. Without unnecessary delay the Company will
execute and will furnish definitive Debentures of such series and thereupon any
or all temporary Debentures of that series may be surrendered in exchange
therefor (without charge to the holders), at the office or agency of the Company
designated for the purpose in the Borough of Manhattan, the City and State of
New York, and the Trustee shall authenticate and such office or agency shall
make available for delivery in exchange for such temporary Debentures an equal
aggregate principal amount of definitive Debentures of that series, unless the
Company advises the Trustee to the effect that definitive Debentures need not be
executed and furnished until further notice from the Company. Until so
exchanged, the temporary Debentures of that series shall be entitled to the same
benefits under this Indenture as definitive Debentures of that series
authenticated and made available for delivery hereunder.
SECTION 2.07. In cas e any temporary or definitive Debenture
shall become mutilated or be destroyed, lost or stolen, the Company
(subject to the next succeeding sentence) shall execute, and upon its request
the Trustee (subject as aforesaid) shall authenticate and make available for
delivery, a new Debenture of the same series bearing a number not
contemporaneously outstanding, in exchange and substitution for the mutilated
Debenture, or in lieu of and in substitution for the Debenture so destroyed,
lost or stolen. In every case the applicant for a substituted Debenture shall
furnish to the Company and to the Trustee such security or indemnity as may be
required by them to save each of them harmless and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Company and
to the Trustee evidence to their satisfaction of the destruction, loss or theft
of the applicant's Debenture and of the ownership thereof. The Trustee may
authenticate any such substituted Debenture and make available for delivery the
same upon the written order of the Company. Upon the issuance of any substituted
Debenture, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith. In case any Debenture which has matured or is about to mature or has
been called for redemption shall become mutilated or be destroyed, lost or
stolen, the Company may, instead of issuing a substitute Debenture, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated Debenture) if the applicant for such payment shall furnish to the
Company and to the Trustee such security or indemnity as they may require to
save them harmless and, in case of destruction, loss or theft, evidence to the
satisfaction of the Company and the Trustee of the destruction, loss or theft of
such Debenture and of the ownership thereof.
Every Debenture issued pursuant to the provisions of this
Section in substitution for any Debenture which is mutilated, destroyed, lost or
stolen shall constitute an additional contractual obligation of the Company,
whether or not the mutilated, destroyed, lost or stolen Debenture shall be found
at any time, or be enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Debentures of the same series duly issued hereunder. All Debentures shall be
held and owned upon the express condition that the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Debentures, and shall preclude (to the extent lawful) any and all
other rights or remedies, notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.08. All Debentures surrendered for the purpose of
payment, redemption, exchange or registration of transfer shall, if
surrendered to the Company or any paying agent, be delivered to the Trustee for
cancellation, or, if surrendered to the Trustee, shall be canceled by it, and no
Debentures shall be issued in lieu thereof except as expressly required or
permitted by any of the provisions of this Indenture. On request of the Company,
the Trustee shall deliver to the Company canceled Debentures held by the
Trustee. In the absence of such request the Trustee may dispose of canceled
Debentures in accordance with its standard procedures. If the Company shall
otherwise acquire any of the Debentures, however, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented by such
Debentures unless and until the same are delivered to the Trustee for
cancellation.
SECTION 2.09. Nothing in this Indenture or in the
Debentures, express or implied, shall give or be construed to give to any
person, firm or corporation, other than the parties hereto and the holders of
the Debentures, any legal or equitable right, remedy or claim under or in
respect of this Indenture, or under any covenant, condition or provision herein
contained; all such covenants, conditions and provisions being for the sole
benefit of the parties hereto and of the holders of the Debentures.
SECTION 2.10. So long as any of the Debentures of any series
remain outstanding there may be an Authenticating Agent for any or all such
series of Debentures which the Trustee shall have the right to appoint. Said
Authenticating Agent shall be authorized to act on behalf of the Trustee to
authenticate Debentures of such series issued upon exchange, transfer or partial
redemption thereof, and Debentures so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee hereunder. All references in this Indenture to
the authentication of Debentures of any series by the Trustee shall be deemed to
include authentication by an Authenticating Agent for such series except for
authentication upon original issuance or pursuant to Section 2.07 hereof. Each
Authenticating Agent shall be acceptable to the Company and shall be a
corporation which has a combined capital and surplus, as most recently reported
or determined by it, of $50 million, and which is otherwise authorized under
such laws to conduct a trust business and is subject to supervision or
examination by federal or state authorities. If at any time any Authenticating
Agent shall cease to be eligible in accordance with these provisions, it shall
resign immediately.
Any Authenticating Agent may at any time resign by giving
written notice of resignation to the Trustee and to the Company. The Trustee may
at any time (and upon request by the Company shall) terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent, the Trustee may appoint an
eligible successor Authenticating Agent acceptable to the Company. Any successor
Authenticating Agent, upon acceptance of its appointment hereunder, shall become
vested with all the rights, powers and duties of its predecessor hereunder as if
originally named as an Authenticating Agent pursuant hereto.
SECTION 2.11. (a) If the Company shall establish pursuant to
Section 2.01 that the Debentures of a particular series are to be issued as
a Global Debenture, then the Company shall execute and the Trustee shall, in
accordance with Section 2.04, authenticate and make available for delivery, a
Global Debenture which (i) shall represent, and shall be denominated in an
amount equal to the aggregate principal amount of, all of the Outstanding
Debentures of that series, (ii) shall be registered in the name of the
Depositary or its nominee, (iii) shall be made available for delivery by the
Trustee to the Depositary or pursuant to the Depositary's instruction and (iv)
shall bear a legend substantially to the following effect: "Except as otherwise
provided in Section 2.11 of the Indenture, this Debenture may be transferred, in
whole but not in part, only to another nominee of the Depositary or to a
successor Depositary or to a nominee of such successor Depositary."
(b) Notwithstanding the provisions of Section 2.05 and except
as set forth in Section 2.11(c) or (d), the Global Debenture of a series may be
transferred, in whole but not in part and in the manner provided in Section
2.05, only to another nominee of the Depositary for that series, a successor
Depositary for that series selected or approved by the Company or a nominee of
that successor Depositary.
(c) (i) Subject to the terms established in one or more
indentures supplemental to this Indenture, an
interest in any Global Debenture shall be
exchangeable at the option of the beneficial owner of
such interest in such Global Debenture for a
definitive Debenture or Debentures registered in the
name of any holder other than the Depositary or its
nominee at any time following issuance of such Global
Debenture.
(ii) A beneficial owner of an interest in any Global
Debenture desiring to exchange such beneficial
interest for a definitive Debenture or Debentures
shall instruct the Depositary, through the
Depositary's direct or indirect participants or
otherwise, to request such exchange on such
beneficial owner's behalf and to provide a written
order containing registration instructions to the
Trustee. Upon receipt by the Trustee of electronic or
written instructions from the Depositary on behalf of
such beneficial owner, the Trustee shall cause, in
accordance with the standing instructions and
procedures existing between the Trustee and the
Depositary, the aggregate principal amount of such
Global Debenture to be reduced by the principal
amount of such beneficial interest so exchanged and
shall appropriately reflect such reduction of the
aggregate principal amount of this Global Debenture
as described in paragraph (iii) of this Section
2.11(c). Following such reduction, the Trustee shall
authenticate and make available for delivery to such
beneficial owner of the transferee, as the case may
be, a definitive Debenture or Debentures previously
executed by the Company as described in Section
2.05(a) and registered in such names and authorized
denominations as the Depositary, pursuant to such
instructions of the beneficial owner, shall instruct
the Trustee.
(iii) Upon any exchange of a portion of any Global
Debenture for a definitive Debenture or Debentures,
the Debenture Registrar shall reflect the reduction
of the principal amount of such Global Debenture by
the principal amount of such beneficial interest so
exchanged on the Debenture Register. Until exchanged
in full for definitive Debentures, such Global
Debenture shall in all respects be entitled to the
same benefits under the Indenture as the definitive
Debentures authenticated and delivered hereunder.
(d) (i) Subject to the terms established in one or more
indentures supplemental to this Indenture, if and so
long as the Debentures of any series are issued as a
Global Debenture, any definitive Debenture or
Debentures of such series shall be exchangeable at
the option of the registered holder thereof for a
beneficial interest in such Global Debenture at any
time following the exchange of such Global Debenture
for such definitive Debenture or Debentures pursuant
to Section 2.11(c).
(ii) A registered holder of a definitive Debenture or
Debentures desiring to exchange such definitive
Debenture or Debentures for a beneficial interest in
such Global Debenture shall instruct the Depositary,
through the Depositary's direct or indirect
participants or otherwise, to request such exchange
on such registered holder's behalf and to provide a
written order containing registration instructions to
the Trustee. Upon receipt by the Trustee of
electronic or written instructions from the
Depositary, and upon presentation to the Trustee of
such definitive Debenture or Debentures, the Trustee
shall cause, in accordance with the standing
instructions and procedures existing between the
Trustee and the Depositary, the aggregate principal
amount of such Global Debenture to be increased by
the principal amount of such definitive Debenture or
Debentures so exchanged and shall appropriately
reflect such increase of the aggregate principal
amount of the Global Debenture as described in
paragraph (iii) of this Section 2.11(d).
(iii) Upon any exchange of a definitive Debenture or
Debentures for a beneficial interest in such Global
Debenture, the Debenture Registrar shall reflect the
increase of the principal amount of such Global
Debenture by the principal amount of such definitive
Debenture or Debentures so exchanged on the Debenture
Register.
(e) If at any time the Depositary for a series of Debentures
notifies the Company that it is unwilling or unable to continue as Depositary
for that series or if at any time the Depositary for that series shall no longer
be registered or in good standing under the Exchange Act or other applicable
statute or regulation and a successor Depositary for that series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such condition, as the case may be, this Section 2.11 shall
no longer apply to the Debentures of that series and the Company will execute
and, subject to Section 2.05, the Trustee will authenticate and make available
for delivery Debentures of that series in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount equal
to the principal amount of the Global Debenture of that series in exchange for
such Global Debenture. In addition, the Company may at any time determine that
the Debentures of any series shall no longer be represented by a Global
Debenture and that the provisions of this Section 2.11 shall no longer apply to
the Debentures of that series. In that event the Company will execute and,
subject to Section 2.05, the Trustee, upon receipt of an Officer's Certificate
evidencing such determination by the Company, will authenticate and make
available for delivery Debentures of that series in definitive registered form
without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Debenture of such series in
exchange for such Global Debenture. Upon the exchange of the Global Debenture
for such Debentures in definitive registered form without coupons, in authorized
denominations, the Global Debenture shall be canceled by the Trustee. Such
Debentures in definitive registered form issued in exchange for the Global
Debenture pursuant to this Section 2.11(e) shall be registered in such names and
in such authorized denominations as the Depositary, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Debenture Registrar. The Trustee shall make available for delivery such
Debentures to the Depositary for delivery to the persons in whose names such
Debentures are so registered.
SECTION 2.12. If specified as contemplated by Section 2.01
with respect to the Debentures of a particular series, the Company shall
have the right to shorten the maturity of the principal of the Debentures of
such series at any time to any date, provided that, if the Company elects to
exercise its right to shorten the maturity of the principal of the Debentures of
such series, at the time such election is made and at the time of such
shortening, such conditions as may be specified in such Debentures shall have
been satisfied.
SECTION 2.13. The Company in issuing the Debentures 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 Debentures or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Debentures, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE THREE
Redemption of Debentures and Sinking Fund Provisions
SECTION 3.01. The Company may redeem the Debentures of any
series issued hereunder on and after the dates and in accordance with the
terms established for that series pursuant to Section 2.01 hereof.
SECTION 3.02. (a) In case the Company shall desire to
exercise such right to redeem all or, as the case may be, a portion of the
Debentures of any series in accordance with the right reserved so to do, it
shall give notice of such redemption to holders of the Debentures of the series
to be redeemed by mailing, first class postage prepaid, a notice of such
redemption not less than 30 days and not more than 60 days before the date fixed
for redemption of that series to such holders at their last addresses as they
shall appear upon the Debenture Register. Any notice which is mailed in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not the registered holder receives the notice. In any case, failure
duly to give such notice to the holder of any Debenture of any series designated
for redemption in whole or in part, or any defect in the notice, shall not
affect the validity of the proceedings for the redemption of any other
Debentures of that series or any other series. In the case of any redemption of
Debentures prior to the expiration of any restriction on such redemption
provided in the terms of such Debentures or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officer's Certificate evidencing
compliance with any such restriction.
Each such notice of redemption shall specify the CUSIP number,
if any, of Debentures being redeemed, the date fixed for redemption and the
redemption price at which Debentures of that series are to be redeemed, and
shall state that payment of the redemption price of the Debentures to be
redeemed will be made at the office or agency of the Company in the Borough of
Manhattan, the City and State of New York, upon presentation and surrender of
such Debentures, that interest accrued to the date fixed for redemption will be
paid as specified in that notice, that from and after that date interest will
cease to accrue, and that the redemption is for a sinking fund, if such is the
case. If less than all the Debentures of a series are to be redeemed, the notice
to the holders of Debentures of that series to be redeemed shall specify the
particular Debentures to be so redeemed. In case any Debenture is to be redeemed
in part only, the notice which relates to such Debenture shall state the portion
of the principal amount thereof to be redeemed, and shall state that on and
after the redemption date, upon surrender of such Debenture, a new Debenture or
Debentures of that series in principal amount equal to the unredeemed portion
thereof will be issued.
(b) The Company shall give the Trustee at least 45 days'
advance notice of the date fixed for redemption (unless shorter notice shall be
required by the Trustee) as to the aggregate principal amount of Debentures of
the series to be redeemed, and if less than the entire aggregate principal
amount of such series is to be redeemed, thereupon the Trustee shall select, by
lot or in such other manner as it shall deem appropriate and fair in its
discretion and which may provide for the selection of a portion or portions
(equal to $25 or any integral multiple thereof) of the principal amount of such
Debentures of a denomination larger than $25, the Debentures to be redeemed and
shall thereafter promptly notify the Company in writing of the numbers of the
Debentures to be redeemed.
The Company may, if and whenever it shall so elect, by
delivery of instructions signed on its behalf by its President or General
Manager, instruct the Trustee or any paying agent to call all or any part of the
Debentures of a particular series for redemption and to give notice of
redemption in the manner set forth in this Section, such notice to be in the
name of the Company or its own name as the Trustee or such paying agent may deem
advisable. In any case in which notice of redemption is to be given by the
Trustee or any such paying agent, the Company shall deliver or cause to be
delivered to, or permit to remain with, the Trustee or such paying agent, as the
case may be, such Debenture Register, transfer books or other records, or
suitable copies or extracts therefrom, sufficient to enable the Trustee or such
paying agent to give any notice by mail that may be required under the
provisions of this Section.
SECTION 3.03. (a) If the giving of notice of redemption
shall have been completed as above provided, the Debentures or portions of
Debentures of the series to be redeemed specified in such notice shall become
due and payable on the date and at the place stated in such notice at the
applicable redemption price, together with interest accrued to the date fixed
for redemption, and interest on such Debentures or portions of Debentures shall
cease to accrue on and after the date fixed for redemption, unless the Company
shall default in the payment of such redemption price and accrued interest with
respect to any such Debenture or portion thereof. On presentation and surrender
of such Debentures on or after the date fixed for redemption at the place of
payment specified in the notice, such Debentures shall be paid and redeemed at
the applicable redemption price for such series, together with interest accrued
thereon to the date fixed for redemption (but if the date fixed for redemption
is an interest payment date, the interest installment payable on such date shall
be payable to the registered holder at the close of business on the applicable
record date pursuant to Section 2.03).
(b) Upon presentation of any Debenture of such series which is
to be redeemed in part only, the Company shall execute, the Trustee shall
authenticate and the office or agency where the Debenture is presented shall
make available for delivery to the holder thereof, at the expense of the
Company, a new Debenture or Debentures of the same series, of authorized
denominations in principal amount equal to the unredeemed portion of the
Debenture so presented.
SECTION 3.04. The provisions of Sections 3.04, 3.05 and 3.06
shall apply to any sinking fund for the retirement of Debentures of a
series, except as otherwise specified as contemplated by Section 2.01 for
Debentures of that series.
The minimum amount of any sinking fund payment provided for by
the terms of Debentures of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount provided
for by the terms of Debentures of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of Debentures of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 3.05. Each sinking fund payment shall be
applied to the redemption of Debentures of any series as provided for by the
terms of Debentures of that series.
SECTION 3.05. The Company (i) may deliver Outstanding
Debentures of a series (other than any previously called for redemption)
and (ii) may apply as a credit Debentures of a series which have been redeemed
either at the election of the Company pursuant to the terms of such Debentures
or through the application of permitted optional sinking fund payments pursuant
to the terms of such Debentures, in each case in satisfaction of all or any part
of any sinking fund payment with respect to the Debentures of such series
required to be made pursuant to the terms of such Debentures as provided for by
the terms of that series; provided that such Debentures have not been previously
so credited. Such Debentures shall be received and credited for such purpose by
the Trustee at the redemption price specified in such Debentures for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
SECTION 3.06. Not less than 45 days prior to each sinking
fund payment date for any series of Debentures, the Company will deliver to
the Trustee an Officer's Certificate specifying the amount of the next ensuing
sinking fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, which is to be satisfied by delivering and crediting
Debentures of that series pursuant to Section 3.05 and the basis for such credit
and will, together with such Officer's Certificate, deliver to the Trustee any
Debentures to be so delivered. Not less than 30 days before each such sinking
fund payment date the Trustee shall select the Debentures to be redeemed upon
such sinking fund payment date in the manner specified in Section 3.02 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 3.02. Such notice having been
duly given, the redemption of such Debentures shall be made upon the terms and
in the manner stated in Section 3.03.
ARTICLE FOUR
Particular Covenants of the Company
The Company covenants and agrees for each series of the
Debentures as follows:
SECTION 4.01. The Company will duly and punctually pay or
cause to be paid the principal of (and premium, if any) and interest on the
Debentures (subject to the Company's right to extend or defer an Interest
Payment Date) of that series at the time and place and in the manner provided
herein and established with respect to such Debentures.
SECTION 4.02. So long as any series of the Debentures
remains outstanding, the Company agrees to maintain an office or agency in
the Borough of Manhattan, the City and State of New York (which, unless changed,
shall be a corporate trust office or agency of the Trustee), with respect to
each such series and at such other location or locations as may be designated as
provided in this Section 4.02, where (i) Debentures of that series may be
presented for payment, (ii) Debentures of that series may be presented as
hereinabove authorized for registration of transfer and exchange and (iii)
notices and demands to or upon the Company in respect of the Debentures of that
series and this Indenture may be given or served, such designation to continue
with respect to such office or agency until the Company shall, by written notice
signed by its President or General Manager and delivered to the Trustee,
designate some other office or agency for such purposes or any of them. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, notices and demands.
SECTION 4.03. (a) If the Company shall appoint one or more
paying agents, other than the Trustee, for all or any series of the
Debentures, the Company will cause each such paying agent to execute and deliver
to the Trustee an instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section, that it will:
(1) hold all sums held by it as such agent for the payment of
the principal of (and premium, if any) or interest on the Debentures of
that series (whether such sums have been paid to it by the Company or
by any other obligor of such Debentures) in trust for the benefit of
the persons entitled thereto;
(2) give the Trustee notice of any failure by the Company (or
by any other obligor of such Debentures) to make any payment of the
principal of (and premium, if any) or interest on the Debentures of
that series when the same shall be due and payable;
(3) at any time during the continuance of any failure referred
to in the preceding paragraph (a)(2) above, upon the written request of
the Trustee, forthwith pay to the Trustee all sums so held in trust by
such paying agent; and
(4) perform all other duties of paying agent as set forth in
in this Indenture.
(b) If the Company shall act as its own paying agent with
respect to any series of the Debentures, it will, on or before each due date of
the principal of (and premium, if any) or interest on Debentures of that series,
set aside, segregate and hold in trust for the benefit of the persons entitled
thereto a sum sufficient to pay such principal (and premium, if any) or interest
so becoming due on Debentures of that series until such sums shall be paid to
such persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of such action, or any failure (by it or any other obligor on
such Debentures) to take such action. Whenever the Company shall have one or
more paying agents for any series of Debentures, it will, prior to each due date
of the principal of (and premium, if any) or interest on any Debentures of that
series, deposit with the paying agent a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due, such sum to be held in trust for
the benefit of the persons entitled to such principal, premium or interest, and
(unless such paying agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
(c) Anything in this Section to the contrary notwithstanding,
(i) the agreement to hold sums in trust as provided in this Section is subject
to the provisions of Section 11.06 and (ii) the Company may at any time, for the
purpose of obtaining the satisfaction and discharge of this Indenture or for any
other purpose, pay, or direct any paying agent to pay, to the Trustee all sums
held in trust by the Company or such paying agent, such sums to be held by the
Trustee upon the same terms and conditions as those upon which such sums were
held by the Company or such paying agent; and, upon such payment by any paying
agent to the Trustee, such paying agent shall be released from all further
liability with respect to such sums.
SECTION 4.04. The company, whenever necessary to avoid or
fill a vacancy in the office of Trustee, will appoint, in the manner
provided in Section 7.10, a Trustee, so that there shall at all times be a
Trustee hereunder.
SECTION 4.05. The Company will not, while any of the
Debentures remain outstanding, consolidate with, merge into, merge into
itself or sell or convey all or substantially all of its property to any other
company, unless the provisions of Article Ten hereof are complied with.
SECTION 4.06. If there shall have occurred any event that
would, with the giving of notice or the passage of time, or both,
constitute an Event of Default under the Indenture, or the Company shall have
given notice of its selection of an extended interest payment period as provided
in the Indenture and such period, or any extension thereof, shall be continuing,
the Company will not, until all defaulted interest on the Debentures and all
interest accrued on the Debentures during an extended interest payment period
and all principal and premium, if any, then due and payable on the Debentures
shall have been paid in full, (i) declare, set aside or pay any dividend or
distribution on any capital stock of the Company, except for dividends or
distributions in shares of its capital stock or in rights to acquire shares of
its capital stock, or (ii) repurchase, redeem or otherwise acquire, or make any
sinking fund payment for the purchase or redemption of, any shares of its
capital stock (except by conversion into or exchange for shares of its capital
stock and except for a redemption, purchase or other acquisition of shares of
its capital stock made for the purpose of an employee incentive plan or benefit
plan of the Company or any of its subsidiaries, if any, and except for mandatory
redemption or sinking fund payments with respect to any series of preferred
stock of the Company that are subject to mandatory redemption or sinking fund
requirements, provided that the aggregate stated value of all such series
outstanding at the time of any such payment does not exceed five percent of the
aggregate of (1) the total principal amount of all bonds or other securities
representing secured indebtedness issued or assumed by the Company and then
outstanding and (2) the capital and surplus of the Company to be stated on the
books of account of the Company after giving effect to such payment); provided,
however, that any moneys deposited in any sinking fund and not in violation of
this provision may thereafter be applied to the purchase or redemption of such
preferred stock in accordance with the terms of such sinking fund without regard
to the restrictions contained in this Section.
ARTICLE FIVE
Debentureholders' Lists and Reports by the Company
and the Trustee
SECTION 5.01. The Company will furnish or cause to be
furnished to the Trustee (a) on a quarterly basis on each regular record
date (as defined in Section 2.03) a list, in such form as the Trustee may
reasonably require, of the names and addresses of the holders of each series of
Debentures as of such regular record date; provided that the Company shall not
be obligated to furnish or cause to furnish such list at any time that the list
shall not differ in any respect from the most recent list furnished to the
Trustee by the Company and (b) at such other times as the Trustee may request in
writing within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior to the
time such list is furnished; provided, however, no such list need be furnished
for any series for which the Trustee shall be the Debenture Registrar.
SECTION 5.02. (a) The Trustee shall preserve, in as current
a form as is reasonably practicable, all information as to the names and
addresses of the holders of Debentures contained in the most recent list
furnished to it as provided in Section 5.01 and as to the names and addresses of
holders of Debentures received by the Trustee in its capacity as Debenture
Registrar (if acting in such capacity).
(b) The Trustee may destroy any list furnished to it as
provided in Section 5.01 upon receipt of a new list so furnished.
(c) In case three or more holders of Debentures of a series
(hereinafter referred to as "applicants") apply in writing to the Trustee, and
furnish to the Trustee reasonable proof that each such applicant owns and has
owned a Debenture for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other holders of Debentures of that series or holders of all
Debentures with respect to their rights under this Indenture or under such
Debentures, and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee shall,
within five Business Days after the receipt of such application, at its
election, either:
(1) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the provisions
of Section 5.02(a); or
(2) inform such applicants as to the approximate number of
holders of Debentures of such series or of all Debentures, as the case
may be, whose names and addresses appear in the information preserved
at the time by the Trustee, in accordance with the provisions of
Section 5.02(a), and as to the approximate cost of mailing to such
Debentureholders the form of proxy or other communication, if any,
specified in such application.
(d) If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon the written request of such
applicants, mail to each holder of that series or of all Debentures, as the case
may be, whose name and address appears in the information preserved at the time
by the Trustee in accordance with the provisions of Section 5.02(a), a copy of
the form of proxy or other communication which is specified in such request,
with reasonable promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the reasonable expenses
of mailing, unless within five days after such tender, the Trustee shall mail to
such applicants and file with the Securities and Exchange Commission (the
"Commission"), together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of the holders of Debentures of that series or
of all Debentures, as the case may be, or would be in violation of applicable
law. Such written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified in the
written statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for hearing,
that all the objections so sustained have been met and shall enter an order so
declaring, the Trustee shall mail copies of such material to all such
Debentureholders with reasonable promptness after the entry of such order and
the renewal of such tender; otherwise, the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(e) Each and every holder of the Debentures, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any paying agent nor any Debenture Registrar shall
be held accountable by reason of the disclosure of any such information as to
the names and addresses of the holders of Debentures in accordance with the
provisions of Section 5.02(c), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 5.02(c).
SECTION 5.03. (a) The Company covenants and agrees to file
with the Trustee, within 15 days after the Company is required to file the
same with the Commission, 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 Commission may from time to time by rules and regulations prescribe)
which the Company may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not
required to file information, documents or reports pursuant to either of such
sections, then to file with the Trustee and the Commission, in accordance with
the rules and regulations prescribed from time to time by the Commission, such
of the supplementary and periodic information, documents and reports which may
be required pursuant to Section 13 of the Exchange Act, in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations.
(b) The Company covenants and agrees to file with the Trustee
and the Commission, in accordance with the rules and regulations prescribed from
time to time by the Commission, such additional information, documents and
reports with respect to compliance by the Company with the conditions and
covenants provided for in this Indenture as may be required from time to time by
such rules and regulations. Delivery of such reports, documents and information
to the Trustee under this subsection (b) and Section 5.03(a) is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of the covenants hereunder (as to which the Trustee is
entitled to rely exclusively on an Officer's Certificate).
(c) The Company covenants and agrees to transmit by mail,
first-class postage prepaid, or reputable overnight delivery service which
provides for evidence of receipt, to the Debentureholders, as their names and
addresses appear upon the Debenture Register, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to Section 5.03(a) and (b)
as may be required by rules and regulations prescribed from time to time by the
Commission.
(d) The Company covenants and agrees to furnish to the
Trustee, on or before September 1 in each calendar year in which any of the
Debentures are outstanding, or on or before such other day in each calendar year
as the Company and the Trustee may from time to time agree upon, a Certificate
as to his or her knowledge of the Company's compliance with all conditions and
covenants under this Indenture. For purposes of this subsection (d), such
compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
(e) The Company covenants and agrees, during any calendar year
in which original issue discount has accrued on Outstanding Debentures, to file
with the Trustee promptly at the end of each such calendar year a written notice
specifying the amount of original issue discount (including daily rates and
accrual periods) accrued on Outstanding Debentures as of the end of such year.
SECTION 5.04. (a) On or before November 1 in each year in
which any of the Debentures are outstanding, the Trustee shall transmit by mail,
first-class postage prepaid, to the Debentureholders, as their names and
addresses appear upon the Debenture Register, a brief report dated as of the
preceding September 1, with respect to any of the following events which may
have occurred within the previous 12 months (but if no such event has occurred
within such period no report need be transmitted):
(1) any change to its eligibility under Section 7.09, and its
qualifications under Section 7.08;
(2) the creation of or any material change to a relationship
specified in paragraphs (1) through (10) of Section 7.08(c);
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report, and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Debentures, on any
property or funds held or collected by it as Trustee if such advances
so remaining unpaid aggregate more than 1/2 of 1% of the principal
amount of the Debentures outstanding on the date of such report;
(4) any change to the amount, interest rate and maturity date
of all other indebtedness owing by the Company, or by any other obligor
on the Debentures, to the Trustee in its individual capacity, on the
date of such report, with a brief description of any property held as
collateral security therefor, except any indebtedness based upon a
creditor relationship arising in any manner described in paragraphs
(2), (3), (4) or (6) of Section 7.13(b);
(5) any change to the property and funds, if any, physically
in the possession of the Trustee as such on the date of such report;
(6) any release, or release and substitution, of property
subject to the lien, if any, of this Indenture (and the consideration
thereof, if any) which it has not previously reported;
(7) any additional issue of Debentures which the Trustee has
not previously reported; and
(8) any action taken by the Trustee in the performance of its
duties under this Indenture which it has not previously reported and
which in its opinion materially affects the Debentures or the
Debentures of any series, except any action in respect of a default,
notice of which has been or is to be withheld by it in accordance with
the provisions of Section 6.07.
(b) The Trustee shall transmit by mail, first-class postage
prepaid, to the Debentureholders, as their names and addresses appear upon the
Debenture Register, a brief report with respect to the character and amount of
any advances (and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee as such since the date of
the last report transmitted pursuant to the provisions of subsection (a) of this
Section (or if no such report has yet been so transmitted, since the date of
execution of this Indenture), for the reimbursement of which it claims or may
claim a lien or charge prior to that of the Debentures of any series on property
or funds held or collected by it as Trustee, and which it has not previously
reported pursuant to this subsection if such advances remaining unpaid at any
time aggregate more than 10% of the principal amount of Debentures of such
series outstanding at such time, such report to be transmitted within 90 days
after such time.
(c) A copy of each such report shall, at the time of such
transmission to Debentureholders, be filed by the Trustee with the Company, with
each stock exchange upon which any Debentures are listed (if so listed) and also
with the Commission. The Company agrees to notify the Trustee when any
Debentures become listed on any stock exchange.
ARTICLE SIX
Remedies of the Trustee and Debentureholders
on Event of Default
SECTION 6.01. (a) Whenever used herein with respect to
Debentures of a particular series, "Event of Default" means any one or more of
the following events which has occurred and is continuing:
(1) default in the payment of any installment of interest upon
any of the Debentures of that series, as and when the same shall become
due and payable, and continuance of such default for a period of 60
days (subject to the Company's right, if any, to extend or defer an
Interest Payment Date pursuant to Section 2.01 hereof);
(2) default in the payment of the principal of (or premium, if
any, on) any of the Debentures of that series as and when the same
shall become due and payable, whether at maturity, upon redemption, by
declaration or otherwise, or in any payment required by any sinking or
analogous fund established with respect to that series, and continuance
of such default for a period of 3 days;
(3) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the
Company with respect to that series contained in such Debentures or
otherwise established with respect to that series of Debentures
pursuant to Section 2.01 hereof or contained in this Indenture (other
than a covenant or agreement which has been expressly included in this
Indenture solely for the benefit of one or more series of Debentures
other than such series) for a period of 90 days after the date on which
written notice of such failure, requiring the same to be remedied and
stating that such notice is a "Notice of Default" hereunder, shall have
been given to the Company by the Trustee, by registered or certified
mail, or to the Company and the Trustee by the holders of at least 33%
in principal amount of the Debentures of that series at the time
outstanding;
(4) a decree or order by a court having jurisdiction in the
premises shall have been entered adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking
liquidation or reorganization of the Company under the Federal
Bankruptcy Code or any other similar applicable federal or state law,
and such decree or order shall have continued unvacated and unstayed
for a period of 90 days; an involuntary case shall be commenced under
such Code in respect of the Company and shall continue undismissed for
a period of 90 days or an order for relief in such case shall have been
entered; or a decree or order of a court having jurisdiction in the
premises shall have been entered for the appointment on the ground of
insolvency or bankruptcy of a receiver, custodian, liquidator, trustee
or assignee in bankruptcy or insolvency of the Company or of its
property, or for the winding up or liquidation of its affairs, and such
decree or order shall have remained in force unvacated and unstayed for
a period of 90 days; or
(5) the Company shall institute proceedings to be adjudicated
a voluntary bankrupt, shall consent to the filing of a bankruptcy
proceeding against it, shall file a petition or answer or consent
seeking liquidation or reorganization under the Federal Bankruptcy Code
or other similar applicable federal or state law, shall consent to the
filing of any such petition or shall consent to the appointment on the
ground of insolvency or bankruptcy of a receiver or custodian or
liquidator or trustee or assignee in bankruptcy or insolvency of it or
of its property, or shall make an assignment for the benefit of
creditors.
(b) In each and every such case, the Company shall file with
the Trustee written notice of the occurrence of any Event of Default within five
Business Days of the Company's becoming aware of any such Event of Default, and
unless the principal of all the Debentures of that series shall have already
become due and payable, either the Trustee or the holders of not less than 33%
in aggregate principal amount of the Debentures of that series then outstanding
hereunder, by notice in writing to the Company (and to the Trustee if given by
such Debentureholders), may declare the principal of all the Debentures of that
series to be due and payable immediately, and upon any such declaration the same
shall become and shall be immediately due and payable, anything contained in
this Indenture or in the Debentures of that series or established with respect
to that series pursuant to Section 2.01 hereof to the contrary notwithstanding.
(c) The provisions of subsection (b) of this Section, however,
are subject to the condition that if, at any time after the principal of the
Debentures of that series shall have been so declared due and payable, and
before any judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, the Company shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Debentures of that series and the principal of (and
premium, if any, on) any and all Debentures of that series which shall have
become due otherwise than by acceleration (with interest upon such principal and
premium, if any, and, to the extent that such payment is enforceable under
applicable law, upon overdue installments of interest, at the rate per annum
expressed in the Debentures of that series to the date of such payment or
deposit) and the amount payable to the Trustee under Section 7.06, and any and
all defaults under the Indenture, other than the nonpayment of principal on
Debentures of that series which shall not have become due by their terms, shall
have been remedied or, alternatively, waived as provided in Section 6.06, then
and in every such case the Event or Events of Default giving rise to the
declaration of acceleration will, without further act, be deemed to have been
rescinded and annulled; but no such rescission and annulment shall extend to or
shall affect any subsequent default, or shall impair any right consequent
thereon.
(d) In case the Trustee shall have proceeded to enforce any
right with respect to Debentures of that series under this Indenture and such
proceedings shall have been discontinued or abandoned because of such rescission
or annulment or for any other reason or shall have been determined adversely to
the Trustee, then and in every such case the Company and the Trustee shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Company and the Trustee shall continue as
though no such proceedings had been taken.
SECTION 6.02. (a) The Company covenants that (1) in case
default shall be made in the payment of any installment of interest on any of
the Debentures of a series, and such default shall have continued for a period
of 60 days, or (2) in case default shall be made in the payment of the principal
of (or premium, if any, on) any of the Debentures of a series when the same
shall have become due and payable, and such default shall continue for a period
of 3 days, whether upon maturity of the Debentures of a series or upon
redemption or upon declaration or otherwise, or in any payment required by any
sinking or analogous fund established with respect to that series as and when
the same shall have become due and payable, then, upon demand of the Trustee,
the Company will pay to the Trustee, for the benefit of the holders of the
Debentures of that series, the whole amount that then shall have become due and
payable on all such Debentures for principal (and premium, if any) or interest,
or both, as the case may be, with interest upon the overdue principal (and
premium, if any) and (to the extent that payment of such interest is enforceable
under applicable law) upon overdue installments of interest at the rate per
annum expressed in the Debentures of that series; and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, and the amount payable to the Trustee under Section 7.06.
(b) In case the Company shall fail forthwith to pay such
amounts upon such demand, the Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceeding to judgment or final
decree, and may enforce any such judgment or final decree against the Company or
other obligor upon the Debentures of that series and collect in the manner
provided by law out of the property of the Company or other obligor upon the
Debentures of that series wherever situated the moneys adjudged or decreed to be
payable.
(c) In case of any receivership, insolvency, liquidation,
bankruptcy, reorganization, readjustment, arrangement, composition or other
judicial proceedings affecting the Company, any other obligor on such Debentures
or the creditors or property of either, the Trustee shall have power to
intervene in such proceedings and take any action therein that may be permitted
by the court and shall (except as may be otherwise provided by law) be entitled
to file such proofs of claim and other papers and documents as may be necessary
or advisable in order to have the claims of the Trustee and of the holders of
Debentures of such series allowed for the entire amount due and payable by the
Company or such other obligor under the Indenture at the date of institution of
such proceedings and for any additional amount which may become due and payable
by the Company or such other obligor after such date, and to collect and receive
any moneys or other property payable or deliverable on any such claim, and to
distribute the same after the deduction of the amount payable to the Trustee
under Section 7.06; and any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized by each of the holders of Debentures of that
series to make such payments to the Trustee, and, in the event that the Trustee
shall consent to the making of such payments directly to such Debentureholders,
to pay to the Trustee any amount due it under Section 7.06.
(d) All rights of action and of asserting claims under this
Indenture, or under any of the terms established with respect to Debentures of
that series, may be enforced by the Trustee without the possession of any of
such Debentures, or the production thereof at any trial or other proceeding
relative thereto, and any such suit or proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for payment to the Trustee of any
amounts due under Section 7.06, be for the ratable benefit of the holders of the
Debentures of that series.
In case of an Event of Default hereunder, the Trustee may in
its discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law, in
equity, in bankruptcy or otherwise, whether for the specific enforcement of any
covenant or agreement contained in the Indenture or in aid of the exercise of
any power granted in this Indenture, or to enforce any other legal or equitable
right vested in the Trustee by this Indenture or by law.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize, consent to, accept or adopt on behalf of any
Debentureholder any plan of reorganization, arrangement, adjustment or
composition affecting the Debentures of that series or the rights of any holder
thereof or to authorize the Trustee to vote in respect of the claim of any
Debentureholder in any such proceeding.
SECTION 6.03. Any moneys collected by the Trustee pursuant to
Section 6.02 with respect to a particular series of Debentures shall be applied
in the order following, at the date or dates fixed by the Trustee and, in case
of the distribution of such moneys on account of principal (or premium, if any)
or interest, upon presentation of the several Debentures of that series, and
stamping thereon the payment, if only partially paid, and upon surrender thereof
if fully paid:
FIRST: To the payment of costs and expenses of collection and
of all amounts payable to the Trustee under Section 7.06;
SECOND: To the payment of the amounts then due and unpaid upon
Debentures of that series for principal (and premium, if any) and
interest, in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Debentures for
principal (and premium, if any) and interest, respectively; and
THIRD: To the Company.
SECTION 6.04. No holder of any Debenture of any series
shall have any right by virtue or by availing of any provision of this Indenture
to institute any suit, action or proceeding in equity or at law upon or under or
with respect to this Indenture or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless such holder previously shall have
given to the Trustee written notice of an Event of Default and of the
continuance thereof with respect to Debentures of that series specifying such
Event of Default, as hereinbefore provided, and unless also the holders of not
less than 33% in aggregate principal amount of the Debentures of such series
then outstanding shall have made written request upon the Trustee to institute
such action, suit or proceeding in its own name as trustee hereunder and shall
have offered to the Trustee such reasonable indemnity as it may require against
the costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity, shall have failed to institute any such action, suit or proceeding;
it being understood and intended, and being expressly covenanted by the taker
and holder of every Debenture of that series with every other such taker and
holder and the Trustee, that no one or more holders of Debentures of that series
shall have any right in any manner whatsoever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of the
holders of any other of such Debentures, or to obtain or seek to obtain priority
over or preference to any other such holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all holders of Debentures of that series. For the protection
and enforcement of the provisions of this Section, each and every
Debentureholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
Notwithstanding any other provisions of this Indenture,
however, the right of any holder of any Debenture to receive payment of the
principal of (and premium, if any) and interest on such Debenture, as therein
provided, on or after the respective due dates expressed in such Debenture (or
in the case of redemption, on the redemption date), or to institute suit for the
enforcement of any such payment on or after such respective dates or redemption
date, shall not be impaired or affected without the consent of such holder.
SECTION 6.05. (a) All powers and remedies given by this
Article to the Trustee or to the Debentureholders shall, to the extent permitted
by law, be deemed cumulative and not exclusive of any others thereof or of any
other powers and remedies available to the Trustee or the holders of the
Debentures, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture or
otherwise established with respect to such Debentures.
(b) No delay or omission of the Trustee or of any holder of
any of the Debentures to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any such right or
power, or shall be construed as a waiver of any such default or an acquiescence
therein; and, subject to the provisions of Section 6.04, every power and remedy
given by this Article or by law to the Trustee or to the Debentureholders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Debentureholders.
SECTION 6.06. The holders of a majority in aggregate principal
amount of the Debentures of any series at the time outstanding, determined in
accordance with Section 8.04, shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee with respect to that
series; provided, however, that such direction shall not be in conflict with any
rule of law or with this Indenture or unduly prejudicial to the rights of
holders of Debentures of any other series at the time outstanding determined in
accordance with Section 8.04 not parties thereto. Subject to the provisions of
Section 7.01, the Trustee shall have the right to decline to follow any such
direction if the Trustee in good faith shall, by a Responsible Officer or
Officers of the Trustee, determine that the proceeding so directed might involve
the Trustee in personal liability. The holders of a majority in aggregate
principal amount of the Debentures of each series at the time outstanding
affected thereby, determined in accordance with Section 8.04, may on behalf of
the holders of all of the Debentures of that series waive any past default in
the performance of any of the covenants contained herein or established pursuant
to Section 2.01 with respect to that series and its consequences, except a
default in the payment of the principal of, or premium, if any, or interest on,
any of the Debentures of that series as and when the same shall become due by
the terms of such Debentures or a call for redemption of Debentures of that
series, which default may be waived by the unanimous consent of the holders of
that series so affected. Upon any such waiver, the default covered thereby shall
be deemed to be cured for all purposes of this Indenture and the Company, the
Trustee and the holders of the Debentures of that series shall be restored to
their former positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other default or impair any right consequent
thereon.
SECTION 6.07. The Trustee shall, within 90 days after the
occurrence of a default with respect to a particular series, transmit by mail,
first class postage prepaid, to the holders of Debentures of that series, as
their names and addresses appear upon the Debenture Register, notice of all
defaults with respect to that series known to the Trustee, unless such defaults
shall have been cured or waived before the giving of such notice (the term
"defaults" for the purposes of this Section being hereby defined to be the
events specified in subsections (1), (2), (3), (4) and (5) of Section 6.01(a),
not including any grace periods provided for therein and irrespective of the
giving of notice provided for by subsection (3) of Section 6.01(a)); provided,
that, except in the case of default in the payment of the principal of (or
premium, if any) or interest on any of the Debentures of that series or in the
payment of any sinking fund installment established with respect to that series,
the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interests of the holders of Debentures of
that series; provided further, that in the case of any default of the character
specified in Section 6.01(a)(3) with respect to Debentures of that series, no
such notice to the holders of the Debentures of that series shall be given until
at least 30 days after the occurrence thereof.
The Trustee shall not be deemed to have knowledge of any
default, except (i) a default under Section 6.01(a)(1) or (a)(2) as long as the
Trustee is acting as paying agent for such series of Debentures or (ii) any
default as to which the Trustee shall have received written notice or a
Responsible Officer charged with the administration of this Indenture shall have
actual knowledge or obtained written notice.
SECTION 6.08. All parties to this Indenture agree, and each
holder of any Debentures by his or her acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, any suit instituted by any Debentureholder, or group
of Debentureholders, holding more than 10% in aggregate principal amount of the
outstanding Debentures of any series, or any suit instituted by any
Debentureholder for the enforcement of the payment of the principal of (or
premium, if any) or interest on any Debenture of such series, on or after the
respective due dates expressed in such Debenture or established pursuant to this
Indenture.
ARTICLE SEVEN
Concerning the Trustee
SECTION 7.01. (a) The Trustee, prior to the occurrence of
an Event of Default with respect to Debentures of a series and after the curing
of all Events of Default with respect to Debentures of that series which may
have occurred, shall undertake to perform with respect to Debentures of that
series such duties and only such duties as are specifically set forth in this
Indenture, and no implied covenants shall be read into this Indenture against
the Trustee. In case an Event of Default with respect to Debentures of a series
has occurred (which has not been cured or waived), the Trustee shall exercise
with respect to Debentures of that series such of the rights and powers vested
in it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent individual would exercise or use under the circumstances
in the conduct of his or her own affairs.
(b) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except that:
(1) prior to the occurrence of an Event of Default with
respect to Debentures of a series and after the curing and waiving of
all such Events of Default with respect to that series which may have
occurred:
(i) the duties and obligations of the Trustee shall
with respect to Debentures of that series be determined solely by the
express provisions of this Indenture, and the Trustee shall not be
liable with respect to Debentures of that series except for the
performance of such duties and obligations as are specifically set
forth in this Indenture, and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may with respect to Debentures of that series
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this
Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein);
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of
the Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the holders of not less than a majority in principal
amount of the Debentures of any series at the time outstanding relating
to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee under this Indenture with respect to the
Debentures of that series; and
(4) none of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur
or risk personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Indenture or adequate indemnity against such risk is not reasonably
assured to it.
(c) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section 7.01.
SECTION 7.02. Except as otherwise provided in Section 7.01:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, security or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) Any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Board Resolution or an
instrument signed in the name of the Company by the President or General
Manager, the Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer (unless other evidence in respect thereof is specifically
prescribed herein);
(c) Whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) is entitled to receive and may, in
the absence of bad faith on its part, rely upon an Officer's Certificate;
(d) The Trustee may consult with counsel of its selection and
the advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted hereunder in good faith and in reliance thereon;
(e) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Debentureholders, pursuant to the provisions of this
Indenture, unless such Debentureholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby; nothing herein contained shall,
however, relieve the Trustee of the obligation, upon the occurrence of an Event
of Default with respect to a series of the Debentures (which has not been cured
or waived) to exercise with respect to Debentures of that series such of the
rights and powers vested in it by this Indenture, and to use the same degree of
care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs;
(f) If an Event of Default shall have occurred and be
continuing, the Trustee shall be under no obligation to follow any request,
order or direction of the Company if in the reasonable judgment of the Trustee
the following of such request, order or direction would not be in the best
interests of all the holders;
(g) The Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Indenture;
(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, consent, order, approval, bond,
security, or other papers or documents, unless requested in writing to do so by
the holders of not less than a majority in principal amount of the outstanding
Debentures of the particular series affected thereby (determined as provided in
Section 8.04); provided, however, that if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be incurred by it
in the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the terms of
this Indenture, the Trustee may require reasonable indemnity against such costs,
expenses or liabilities as a condition to so proceeding. The reasonable expense
of every such examination shall be paid by the Company or, if paid by the
Trustee, shall be repaid by the Company upon demand;
(i) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(j) Any application by the Trustee for written instructions
from the Company may, at the option of the Trustee, set forth in writing any
action proposed to be taken or omitted by the Trustee under this Indenture and
the date on and/or after which such action shall be taken or such omission shall
be effective. The Trustee shall not be liable for any action or omission of the
Trustee in accordance with a proposal included in such application on or after
the date specified in such application (which date shall not be less than three
Business Days after the date any officer of the Company actually receives such
application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.
SECTION 7.03. (a) The recitals contained herein and in the
Debentures (other than the Certificate of Authentication on the Debentures)
shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same.
(b) The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Debentures.
(c) The Trustee shall not be accountable for the use or
application by the Company of any of the Debentures or of the proceeds of the
Debentures, or for the use or application of any moneys paid over by the Trustee
in accordance with any provision of this Indenture or established pursuant to
Section 2.01, or for the use or application of any moneys received by any paying
agent other than the Trustee.
SECTION 7.04. The Trustee or any paying agent or Debenture
Registrar, in its individual or any other capacity, may become the owner or
pledgee of Debentures with the same rights it would have if it were not Trustee,
paying agent or Debenture Registrar.
SECTION 7.05. Subject to the provisions of Section 11.06,
all moneys received by the Trustee shall, until used or applied as herein
provided, be held in trust for the purposes for which they were received, but
need not be segregated from other funds except to the extent required by law.
The Trustee shall be under no liability for interest on any moneys received by
it hereunder except such as it may agree with the Company to pay thereon.
SECTION 7.06. (a) The Company covenants and agrees to pay to
the Trustee from time to time, and the Trustee shall be entitled to, such
compensation as the Company and the Trustee may agree upon in writing (which
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) for all services rendered by it in the execution of
the trusts hereby created and in the exercise and performance of any of the
powers and duties hereunder of the Trustee, and the Company will pay or
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all persons not
regularly in its employ) except any such expense, disbursement or advance as may
arise from its negligence or bad faith. The Company also covenants to indemnify
the Trustee (and its officers, agents, directors and employees) for, and to hold
it harmless against, any loss, damage, claim, liability or expense including
taxes (other than taxes based upon, measured by or determined by the income of
the Trustee) incurred without negligence or bad faith on the part of the Trustee
and arising out of or in connection with the acceptance or administration of
this trust, including the costs and expenses of defending itself against any
claim of liability in the premises.
(b) The obligations of the Company under this Section to
compensate and indemnify the Trustee and to pay or reimburse the Trustee for
expenses, disbursements and advances shall constitute additional indebtedness
hereunder and shall survive the termination of this Indenture. Such additional
indebtedness shall be a senior lien to that of the Debentures upon all property
and funds held or collected by the Trustee as such, except funds held in trust
for the benefit of the holders of particular Debentures, and the Debentures are
hereby subordinated to each such senior lien.
(c) When the Trustee incurs expenses or renders services in
connection with an Event of Default, the expenses (including the reasonable
charges and expenses of its counsel) and compensation for its services are
intended to constitute expenses of administration under applicable federal or
state bankruptcy, insolvency or similar law.
SECTION 7.07. Except as otherwise provided in Section 7.01,
whenever in the administration of the provisions of this Indenture the Trustee
shall deem it necessary or desirable that a matter be proved or established
prior to taking or suffering or omitting to take any action hereunder, it shall
be entitled to receive, and such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of negligence or
bad faith on the part of the Trustee, be deemed to be conclusively provided and
established by an Officer's Certificate delivered to the Trustee and such
certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken, suffered or
omitted to be taken by it under the provisions of this Indenture upon the faith
thereof.
SECTION 7.08. If the Trustee has acquired or shall acquire
a conflicting interest within the meaning of the Trust Indenture Act, the
Trustee shall either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the Trust Indenture Act
and this Indenture.
SECTION 7.09. There shall at all times be a Trustee with
respect to the Debentures issued hereunder which shall at all times be a
corporation organized and doing business under the laws of the United States of
America or any State or Territory thereof or of the District of Columbia, or a
corporation or other person permitted to act as trustee by the Commission,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least 50 million dollars, and subject to supervision
or examination by Federal, State, Territorial or District of Columbia authority.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. The
Company may not, nor may any person directly or indirectly controlling,
controlled by, or under common control with the Company, serve as Trustee. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 7.10.
SECTION 7.10. (a) The Trustee or any successor hereafter
appointed may at any time resign with respect to the Debentures of one or more
series by giving written notice thereof to the Company and by transmitting
notice of resignation by mail, first-class postage prepaid, to the
Debentureholders of that series, as their names and addresses appear upon the
Debenture Register. Upon receiving such notice of resignation, the Company shall
promptly appoint a successor trustee with respect to Debentures of that series
by written instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee. If no successor trustee shall
have been so appointed and have accepted appointment within 30 days after the
mailing of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee with
respect to Debentures of that series, or any Debentureholder of that series who
has been a bona fide holder of a Debenture or Debentures for at least six months
may, subject to the provisions of Section 6.08, on behalf of himself and all
others similarly situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon after such notice, if any, as it may
deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of
Section 7.08 after written request therefor by the Company or by any
Debentureholder who has been a bona fide holder of a Debenture or
Debentures for at least six months; or
(2) the Trustee shall cease to be eligible in accordance with
the provisions of Section 7.09 and shall fail to resign after written
request therefor by the Company or by any such Debentureholder; or
(3) the Trustee shall become incapable of acting, shall be
adjudged a bankrupt or insolvent, a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, the Company may remove the Trustee with respect to all
Debentures and appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall
be delivered to the Trustee so removed and one copy to the successor trustee,
or, subject to the provisions of Section 6.08, unless the Trustee's duty to
resign is stayed as provided herein, any Debentureholder who has been a bona
fide holder of a Debenture or Debentures for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
trustee. Such court may thereupon after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of
the Debentures of any series at the time outstanding may at any time remove the
Trustee with respect to that series and appoint a successor trustee.
(d) Any resignation or removal of the Trustee and appointment
of a successor trustee with respect to the Debentures of a series pursuant to
any of the provisions of this Section shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 7.11.
(e) Any successor trustee appointed pursuant to this Section
may be appointed with respect to the Debentures of one or more series or all of
such series, and at any time there shall be only one Trustee with respect to the
Debentures of any particular series.
SECTION 7.11. (a) In case of the appointment hereunder of
a successor trustee with respect to all Debentures, every such successor trustee
so appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor trustee all the rights, powers, and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
trustee all property and money held by such retiring Trustee hereunder, subject
to any prior lien provided for in Section 7.06(b).
(b) In case of the appointment hereunder of a successor
trustee with respect to the Debentures of one or more (but not all) series, the
Company, the retiring Trustee and each successor trustee with respect to the
Debentures of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor trustee shall accept such appointment
and which shall (1) contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Debentures of that or those series to which the appointment of such successor
trustee relates, (2) contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Debentures of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee and (3) add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust, that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee and that no Trustee shall be responsible
for any act or failure to act on the part of any other Trustee hereunder; and
upon the execution and delivery of such supplemental indenture the resignation
or removal of the retiring Trustee shall become effective to the extent provided
therein, such retiring Trustee shall with respect to the Debentures of that or
those series to which the appointment of such successor trustee relates have no
further responsibility for the exercise of rights and powers or for the
performance of the duties and obligations vested in the Trustee under this
Indenture, and each such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Debentures of that or those series
to which the appointment of such successor trustee relates; but, on request of
the Company or any successor trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor trustee, to the extent contemplated by
such supplemental indenture, the property and money held by such retiring
Trustee hereunder with respect to the Debentures of that or those series to
which the appointment of such successor trustee relates.
(c) Upon request of any such successor trustee or retiring
Trustee, the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor trustee all such rights,
powers and trusts referred to in paragraph (a) or (b) of this Section, as the
case may be.
(d) No successor trustee shall accept its appointment unless
at the time of such acceptance such successor trustee shall be qualified and
eligible under this Article.
(e) Upon acceptance of appointment by a successor trustee as
provided in this Section, the Company shall transmit notice of the succession of
such trustee hereunder by mail, first-class postage prepaid, to the
Debentureholders, as their names and addresses appear upon the Debenture
Register. If the Company fails to transmit such notice within 10 days after
acceptance of appointment by the successor trustee, the successor trustee shall
cause such notice to be transmitted at the expense of the Company.
SECTION 7.12. Any corporation into which the Trustee may
be merged or converted or with which it may be consolidated, any corporation
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided that such corporation shall be qualified under the
provisions of Section 7.08 and eligible under the provisions of Section 7.09,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding. In
case any Debentures shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver the
Debentures so authenticated with the same effect as if such successor Trustee
had itself authenticated such Debentures.
SECTION 7.13. If and when the Trustee shall become a
creditor of the Company (or any other obligor upon the Debentures), the Trustee
shall be subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any other obligor upon the
Debentures).
ARTICLE EIGHT
Concerning the Debentureholders
SECTION 8.01. Whenever in this Indenture it is provided that
the holders of a majority or specified percentage in aggregate principal amount
of the Debentures of a particular series may take any action (including the
making of any demand or request, the giving of any notice, consent or waiver or
the taking of any other action), the fact that at the time of taking any such
action the holders of such majority or specified percentage of that series have
joined therein may be evidenced by any instrument or any number of instruments
of similar tenor executed by such holders of Debentures of that series in person
or by agent or proxy appointed in writing.
If the Company shall solicit from the Debentureholders of any
series any request, demand, authorization, direction, notice, consent, waiver or
other action, the Company may, at its option, as evidenced by an Officer's
Certificate, fix in advance a record date for that series for the determination
of Debentureholders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other action, but the Company shall have
no obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Debentureholders of record at the
close of business on the record date shall be deemed to be Debentureholders for
the purposes of determining whether Debentureholders of the requisite proportion
of outstanding Debentures of that series have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent, waiver or
other action, and for that purpose the outstanding Debentures of that series
shall be computed as of the record date; provided that no such authorization,
agreement or consent by such Debentureholders on the record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
SECTION 8.02. Subject to the provisions of Section 7.01,
proof of the execution of any instrument by a Debentureholder (such proof will
not require notarization) or his, her or its agent or proxy and proof of the
holding by any person of any of the Debentures shall be sufficient if made in
the following manner:
(a) the fact and date of the execution by any such person of
any instrument may be proved in any reasonable manner acceptable to
the Trustee;
(b) the ownership of Debentures shall be proved by the
Debenture Register of such Debentures or by a certificate of the
Debenture Registrar thereof; or
(c) the Trustee may require such additional proof of any
matter referred to in this Section as it shall deem necessary.
SECTION 8.03. Prior to the due presentment for registration of
transfer of any Debenture, the Company, the Trustee, any paying agent and any
Debenture Registrar may deem and treat the person in whose name such Debenture
shall be registered upon the books of the Company as the absolute owner of such
Debenture (whether or not such Debenture shall be overdue and notwithstanding
any notice of ownership or writing thereon made by anyone other than the
Debenture Registrar) for the purpose of receiving payment of or on account of
the principal of and premium, if any, and (subject to Section 2.03) interest on
such Debenture and for all other purposes; and neither the Company nor the
Trustee nor any paying agent nor any Debenture Registrar shall be affected by
any notice to the contrary.
SECTION 8.04. At any time the Debentures are held by any
holder other than CPL Capital [I], a Delaware statutory business trust, in
determining whether the holders of the requisite aggregate principal amount of
Debentures of a particular series have concurred in any direction, consent or
waiver under this Indenture, Debentures of that series which are owned by the
Company or any other obligor on the Debentures of that series or by any person
directly or indirectly controlling or controlled by or under common control with
the Company or any other obligor on the Debentures of that series shall be
disregarded and deemed not to be outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, consent or waiver, only
Debentures of such series which the Trustee actually knows are so owned shall be
so disregarded. Debentures so owned which have been pledged in good faith may be
regarded as outstanding for the purposes of this Section, if the pledgee shall
establish to the satisfaction of the Trustee the pledgee's right so to act with
respect to such Debentures and that the pledgee is not a person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any such other obligor. In case of a dispute as to
such right, any decision by the Trustee taken upon the advice of counsel shall
be full protection to the Trustee.
SECTION 8.05. At any time prior to (but not after) the
evidencing to the Trustee, as provided in Section 8.01, of the taking of any
action by the holders of the majority or percentage in aggregate principal
amount of the Debentures of a particular series specified in this Indenture in
connection with such action, any holder of a Debenture of that series which is
shown by the evidence to be included in the Debentures the holders of which have
consented to such action may, by filing written notice with the Trustee, and
upon proof of holding as provided in Section 8.02, revoke such action so far as
concerns such Debenture. Except as aforesaid, any such action taken by the
holder of any Debenture shall be conclusive and binding upon such holder and
upon all future holders and owners of such Debenture, and of any Debenture
issued in exchange therefor, on registration of transfer thereof or in place
thereof, irrespective of whether or not any notation in regard thereto is made
upon such Debenture. Any action taken by the holders of the majority or
percentage in aggregate principal amount of the Debentures of a particular
series specified in this Indenture in connection with such action shall be
conclusively binding upon the Company, the Trustee and the holders of all the
Debentures of that series.
ARTICLE NINE
Supplemental Indentures
SECTION 9.01. In addition to any supplemental indenture
otherwise authorized by this Indenture, the Company, when authorized by a Board
Resolution, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act as then in effect), without the consent of
the Debentureholders, for one or more of the following purposes:
(a) to evidence the succession of another corporation to the
Company, and the assumption by any such successor of the covenants of
the Company contained herein or otherwise established with respect to
the Debentures;
(b) to add to the covenants of the Company such further
covenants, restrictions, conditions or provisions for the protection of
the holders of the Debentures of all or any series as the Board of
Directors and the Trustee shall consider to be for the protection of
the holders of Debentures of all or any series, and to make the
occurrence, or the occurrence and continuance, of a default in any of
such additional covenants, restrictions, conditions or provisions a
default or an Event of Default with respect to that series permitting
the enforcement of all or any of the several remedies provided in this
Indenture as herein set forth; provided, however, that in respect of
any such additional covenant, restriction, condition or provision, such
supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed
in the case of other defaults), may provide for an immediate
enforcement upon such default or may limit the remedies available to
the Trustee upon such default or may limit the right of the holders of
a majority in aggregate principal amount of the Debentures of such
series to waive such default;
(c) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture, or to make such other provisions in
regard to matters or questions arising under this indenture as shall
not be inconsistent with the provisions of this Indenture and shall not
adversely affect the interests of the holders of the Debentures of any
series; or
(d) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Debenture outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision.
The Trustee is hereby authorized to join with the Company in
the execution of any such supplemental indenture, and to make any further
appropriate agreements and stipulations which may be therein contained, but the
Trustee shall not be obligated to enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Any supplemental indenture authorized by the provisions of
this Section may be executed by the Company and the Trustee without the consent
of the holders of any of the Debentures at the time outstanding, notwithstanding
any of the provisions of Section 9.02.
SECTION 9.02. With the consent (evidenced as provided in
Section 8.01) of the holders of not less than a majority in aggregate principal
amount of the Debentures of each series affected by such supplemental indenture
or indentures at the time outstanding, the Company, when authorized by a Board
Resolution, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act as then in effect) for the purpose of
adding any provisions to, or changing in any manner or eliminating any of the
provisions of, this Indenture or of any supplemental indenture or of modifying
in any manner the rights of the holders of the Debentures of that series under
this Indenture; provided, however, that no such supplemental indenture shall (i)
extend the Fixed Maturity of any Debentures of any series, reduce the principal
amount thereof, reduce the rate or extend the time of payment of interest
thereon or reduce any premium payable upon the redemption thereof, without the
consent of the holder of each Debenture so affected or (ii) reduce the aforesaid
percentage of Debentures, the holders of which are required to consent to any
such supplemental indenture, without the consent of the holders of each
Debenture then outstanding and affected thereby.
Upon the request of the Company, accompanied by a Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Debentureholders
required to consent thereto as aforesaid, the Trustee shall join with the
Company in the execution of such supplemental indenture unless such supplemental
indenture affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion but
shall not be obligated to enter into such supplemental indenture.
It shall not be necessary for the consent of the
Debentureholders of any series affected thereby under this Section to approve
the particular form of any proposed supplemental indenture, but it shall be
sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to the provisions of this Section, the
Trustee shall transmit by mail, first-class postage prepaid, a notice, setting
forth in general terms the substance of such supplemental indenture, to the
Debentureholders of all series affected thereby as their names and addresses
appear upon the Debenture Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
SECTION 9.03. Upon the execution of any supplemental indenture
pursuant to the provisions of this Article or of Section 10.01, this Indenture
shall, with respect to that series, be and be deemed to be modified and amended
in accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the holders of Debentures of the series affected thereby shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 9.04. Debentures of any series, affected by a
supplemental indenture, authenticated and delivered after the execution of such
supplemental indenture pursuant to the provisions of this Article or of Section
10.01, may bear a notation in form approved by the Company, provided such form
meets the requirements of any exchange upon which such series may be listed, as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Debentures of that series so modified as to conform, in the
opinion of the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Company,
authenticated by the Trustee and delivered in exchange for the Debentures of
that series then outstanding.
SECTION 9.05. The Trustee, subject to the provisions of
Section 7.01, is entitled to receive an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant to this Article is
authorized or permitted by, and conforms to, the terms of this Article and that
it is proper for the Trustee under the provisions of this Article to join in the
execution thereof.
ARTICLE TEN
Consolidation, Merger and Sale
SECTION 10.01. Nothing contained in this Indenture or in
any of the Debentures shall prevent any consolidation or merger of the Company
with or into any other corporation or corporations (whether or not affiliated
with the Company), or successive consolidations or mergers in which the Company
or its successor or successors shall be a party or parties, or shall prevent any
sale, conveyance, transfer or other disposition of the property of the Company
or its successor or successors as an entirety, or substantially as an entirety,
to any other corporation (whether or not affiliated with the Company or its
successor or successors) authorized to acquire and operate the same; provided,
however, the Company hereby covenants and agrees that, upon any such
consolidation, merger, sale, conveyance, transfer or other disposition, the due
and punctual payment of the principal of (premium, if any) and interest on all
of the Debentures of all series in accordance with the terms of each series,
according to their tenor, and the due and punctual performance and observance of
all the covenants and conditions of this Indenture with respect to each series
or established with respect to each series pursuant to Section 2.01 to be kept
or performed by the Company, shall be expressly assumed, by supplemental
indenture (which shall conform to the provisions of the Trust Indenture Act as
then in effect) satisfactory in form to the Trustee executed and delivered to
the Trustee by the entity formed by such consolidation, or into which the
Company shall have been merged, or by the entity which shall have acquired such
property.
SECTION 10.02. (a) In case of any such consolidation, merger,
sale, conveyance, transfer or other disposition and upon the assumption by the
successor corporation, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the due and punctual payment
of the principal of and premium, if any, and interest on all of the Debentures
of all series outstanding and the due and punctual performance of all of the
covenants and conditions of this Indenture or established with respect to each
series of the Debentures pursuant to Section 2.01 to be performed by the Company
with respect to each series, such successor corporation shall succeed to and be
substituted for the Company, with the same effect as if it had been named herein
as the party of the first part, and thereupon the predecessor corporation shall
be relieved of all obligations and covenants under this Indenture and the
Debentures, except the provisions of Section 7.06 to the extent such provisions
relate to matters occurring before any such consolidation, merger, sale,
conveyance, transfer or other disposition. Such successor corporation thereupon
may cause to be signed, and may issue either in its own name or in the name of
the Company or any other predecessor obligor on the Debentures, any or all of
the Debentures issuable hereunder which theretofore shall not have been signed
by the Company and delivered to the Trustee; and, upon the order of such
successor company, instead of the Company, and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Debentures which previously shall have been
signed and delivered by the officers of the predecessor Company to the Trustee
for authentication, and any Debentures which such successor corporation
thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All the Debentures so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Debentures theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Debentures had been issued at the date of the execution hereof.
(b) In case of any such consolidation, merger, sale,
conveyance, transfer or other disposition, such changes in phraseology and form
(but not in substance) may be made in the Debentures thereafter to be issued as
may be appropriate.
(c) Nothing contained in this Indenture or in any of the
Debentures shall prevent the Company from merging into itself or acquiring by
purchase or otherwise all or any part of the property of any other corporation
(whether or not affiliated with the Company).
SECTION 10.03. The Trustee, subject to the provisions of
Section 7.01, is entitled to receive an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, conveyance, transfer or
other disposition, and any such assumption, comply with the provisions of this
Article.
ARTICLE ELEVEN
Satisfaction and Discharge of Indenture;
Unclaimed Moneys
SECTION 11.01. This Indenture shall upon Company request
cease to be of further effect (except as hereinafter expressly provided), and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(a) both
(1) all Debentures theretofore authenticated and
delivered (other than Debentures which have been destroyed,
lost or stolen and which have been replaced or paid as
provided in Section 2.07 have been delivered to the Trustee
for cancellation; and
(2) all Debentures not theretofore delivered to the
Trustee for cancellation shall be deemed to have been paid in
accordance with Section 11.03;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
In the event there shall be Debentures of two or more series
outstanding hereunder, the Trustee shall be required to execute an instrument
acknowledging satisfaction and discharge of this Indenture only if requested to
do so with respect to Debentures of all series as to which it is Trustee and if
the other conditions thereto are met. In the event there shall be two or more
Trustees hereunder, then the effectiveness of each such instrument from each
Trustee hereunder shall be conditioned upon receipt of such instruments from
each other Trustee hereunder.
Notwithstanding the satisfaction and discharge of this
Indenture as aforesaid, the obligations of the Company under Sections 2.05,
2.06, 2.07, 4.02, 4.03 and 7.06 and this Article Eleven shall survive.
Upon satisfaction and discharge of this Indenture as provided
in this Section, the Trustee shall assign, transfer and turn over to the
Company, subject to the lien provided by Section 7.06, any and all money,
securities and other property then held by the Trustee for the benefit of the
holders of the Debentures other than money and Government Obligations held by
the Trustee pursuant to Section 11.04.
SECTION 11.02. If at any time all such Debentures of a
particular series not heretofore delivered to the Trustee for cancellation or
which have not become due and payable as described in Section 11.01 shall have
been paid by the Company by depositing irrevocably with the Trustee as trust
funds moneys or an amount of Governmental Obligations sufficient to pay at
maturity or upon redemption all such Debentures of that series not theretofore
delivered to the Trustee for cancellation, including principal (and premium, if
any) and interest due or to become due to such date of maturity or date fixed
for redemption, as the case may be, and if the Company shall also pay or cause
to be paid all other sums payable hereunder by the Company with respect to that
series, then after the date such moneys or Governmental Obligations, as the case
may be, are deposited with the Trustee: (a) the Company shall be released from
its covenants and other obligations contained in Sections 4.05, 5.03, 10.01,
10.02, and 10.03 and may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such covenant or
obligation, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or obligation or by reason of any reference in any
such covenant or obligation to any other provision of this Indenture or any
other document, and any failure to comply with any such covenant or obligation
shall not constitute a Default or an Event of Default with respect to the
Debentures of such series; (b) the occurrence of any event specified in Section
6.01(a)(3) shall not constitute a Default or an Event of Default with respect to
the Debentures of such series; (c) the Debentures of such series shall
thereafter be deemed not to be "outstanding" solely for purposes of determining
whether the Debentureholders of the requisite aggregate principal amount of
Debentures have concurred in any act under this Indenture with respect to any
covenant or obligation from which the Company has been released pursuant to (a)
above or with respect to any event that shall have ceased to constitute a
Default or Event of Default with respect to Debentures of such series pursuant
to (b) above (or the consequences thereof) provided that the provisions of this
Section 11.02 shall not be deemed to relieve the Company of its obligations with
respect to the payment of the principal of (and premium, if any) or interest on
the outstanding Debentures of such series. The release of the Company from its
obligations under this Indenture, as provided for in this Section 11.02, shall
be subject to the further condition that the Company first shall have caused to
be delivered to the Trustee an Opinion of Counsel to the effect that
Debentureholders of a series with respect to which a deposit has been made in
accordance with this Section 11.02 will not realize income, gain or loss for
federal income tax purposes as a result of such deposit and release, and will be
subject to 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 and release had not
occurred.
SECTION 11.03. If, in addition to satisfying the conditions
set forth in Section 11.01 or 11.02 (except for the requirement of an Opinion of
Counsel), the Company delivers to the Trustee an Opinion of Counsel to the
effect that (a) the Company has received from, or there has been published by,
the Internal Revenue Service a ruling or (b) since the date of this Indenture
there has been a change in applicable federal income tax law, in either case to
the effect that, and based thereon such Opinion of Counsel shall confirm that,
the Debentureholders of a series with respect to which a deposit has been made
in accordance with Section 11.01 or 11.02 will not realize income, gain or loss
for federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to 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 and discharge had not occurred, and (c) the deposit shall not result
in the Company, the Trustee or the trust being deemed an "investment company"
under the Investment Company Act of 1940, as amended, then, in such event, the
Company will be deemed to have paid and discharged the entire indebtedness on
that series and the holder thereof shall thereafter be entitled to receive
payment solely from the trust fund described above. Notwithstanding the
satisfaction and discharge of any Debentures as aforesaid, the obligations of
the Company in respect of such Debentures under Sections 2.05, 2.06, 2.07, 4.02,
4.03 and 7.06 and this Article Eleven shall survive.
SECTION 11.04. All moneys or Governmental Obligations
deposited with the Trustee pursuant to Sections 11.01 or 11.02 shall be held in
trust and shall be available for payment as due, either directly or through any
paying agent (including the Company acting as its own paying agent), to the
holders of the particular series of Debentures for the payment or redemption of
which such moneys or Governmental Obligations have been deposited with the
Trustee.
SECTION 11.05. In connection with the satisfaction and
discharge of this Indenture all moneys or Governmental Obligations then held by
any paying agent under the provisions of this Indenture shall, upon demand of
the Company, be paid to the Trustee and thereupon such paying agent shall be
released from all further liability with respect to such moneys or Governmental
Obligations.
SECTION 11.06. Any moneys or Governmental Obligations
deposited with any paying agent or the Trustee, or then held by the Company, in
trust for payment of principal of or premium or interest on the Debentures of a
particular series that are not applied but remain unclaimed by the holders of
such Debentures for at least two years after the date upon which the principal
of (and premium, if any) or interest on such Debentures shall have respectively
become due and payable, shall, upon written notice from the Company, be repaid
to the Company on May 31 of each year or (if then held by the Company) shall be
discharged from such trust; and thereupon the paying agent and the Trustee shall
be released from all further liability with respect to such moneys or
Governmental Obligations, and the holder of any of the Debentures entitled to
receive such payment shall thereafter, as an unsecured general creditor, look
only to the Company for the payment thereof.
ARTICLE TWELVE
Immunity of Incorporators, Stockholders, Officers
and Directors
SECTION 12.01. No recourse under or upon any obligation,
covenant or agreement of this Indenture, or of any Debenture, or for any claim
based thereon or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer or director, past, present or future as such,
of the Company or of any predecessor or successor corporation, either directly
or through the Company or any such predecessor or successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly understood that this
Indenture and the obligations issued hereunder are solely corporate obligations,
and that no such personal liability whatever shall attach to, or is or shall be
incurred by, the incorporators, stockholders, officers or directors as such, of
the Company or of any predecessor or successor corporation, or any of them,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or in any of the Debentures or implied therefrom; and that any and all such
personal liability of every name and nature, either at common law, in equity or
by constitution or statute, of, and any and all such rights and claims against,
every such incorporator, stockholder, officer or director as such, because of
the creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Debentures or implied therefrom, are hereby expressly waived and released as
a condition of, and as a consideration for, the execution of this Indenture and
the issuance of such Debentures.
ARTICLE THIRTEEN
Miscellaneous Provisions
SECTION 13.01. All the covenants, stipulations, promises and
agreements in this Indenture contained by or on behalf of the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 13.02. Any act or proceeding by any provision of this
Indenture authorized or required to be done or performed by any board, committee
or officer of the Company shall and may be done and performed with like force
and effect by the corresponding board, committee or officer of any corporation
that shall at the time be the lawful sole successor of the Company.
SECTION 13.03. Except as otherwise expressly provided herein,
any notice or demand which by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the holders of Debentures
to or on the Company may be given or served by being deposited first-class
postage prepaid in a post-office letter box addressed (until another address is
filed in writing by the Company with the Trustee), as follows: Central and South
West Corporation, 0000 Xxxxxxx Xxxxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000, Attention:
Director, Finance. Any notice, election, request or demand by the Company or any
Debentureholder to or upon the Trustee shall be deemed to have been sufficiently
given or made, for all purposes, if given or made in writing at the Corporate
Trust Office of the Trustee.
SECTION 13.04. This Indenture and each Debenture shall be
deemed to be a contract made under the laws of the State of New York, and for
all purposes shall be construed in accordance with the laws of that State,
without regard to the conflicts of laws principles thereof.
SECTION 13.05. (a) Upon any application or demand by the
Company to the Trustee to take any action under any of the provisions of this
Indenture, the Company shall furnish to the Trustee an Officer's Certificate
stating that all conditions precedent provided for in this Indenture relating to
the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent have been
complied with, except that in the case of any such application or demand as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.
(b) Each certificate or opinion provided for in this Indenture
and delivered to the Trustee with respect to compliance with a condition or
covenant in this Indenture (other than the certificate provided pursuant to
Section 5.03(d) of this Indenture) shall include (1) a statement that the person
making such certificate or opinion has read such covenant or condition; (2) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based; (3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
SECTION 13.06. Simultaneously with the execution of this
Indenture, the Company shall deliver to the Trustee an Opinion of Counsel
stating that, in the opinion of such counsel, (a) this Indenture has been duly
authorized by and lawfully executed and delivered on behalf of the Company, is
in full force and effect and is legal, valid and binding upon the Company in
accordance with its terms, except to the extent limited by bankruptcy,
insolvency, reorganization or other laws affecting creditors' rights and (b) the
Debentures have been authorized, executed and delivered by the Company and
constitute legal, valid and binding obligations of the Company in accordance
with their terms.
SECTION 13.07. Except as provided pursuant to Section 2.01
pursuant to a Board Resolution, and as set forth in an Officer's Certificate, or
established in one or more indentures supplemental to this Indenture, in any
case where the date of maturity of interest or principal of any Debenture or the
date of redemption of any Debenture shall not be a Business Day then payment of
interest or principal (and premium, if any) may be made on the next succeeding
Business Day with the same force and effect as if made on the nominal date of
maturity or redemption, and no interest shall accrue for the period after such
nominal date.
SECTION 13.08. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by operation of
Section 3.18(c) of the Trust Indenture Act, such imposed duties shall control.
SECTION 13.09. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute one and the same instrument.
SECTION 13.10. In case any one or more of the provisions
contained in this Indenture or in the Debentures of any series shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provisions
of this Indenture or of such Debentures, but this Indenture and such Debentures
shall be construed as if such invalid or illegal or unenforceable provision had
never been contained herein or therein.
SECTION 13.11. The Company will have the right at all times to
assign any of its rights or obligations under this Indenture to a direct or
indirect wholly-owned subsidiary of the Company; provided that, in the event of
any such assignment, the Company will remain liable for all such obligations.
Subject to the foregoing, the Indenture is binding upon and inures to the
benefit of the parties thereto and their respective successors and assigns. The
Indenture may not otherwise be assigned by the parties thereto.
SECTION 13.12. The parties intend that, for each holder of a
Debenture and each person that acquires a beneficial ownership interest in a
Debenture, such Debentures shall constitute indebtedness for purposes of United
States federal, state and local taxes.
ARTICLE FOURTEEN
Subordination of Debentures
SECTION 14.01. The Company covenants and agrees, and each
holder of Debentures issued hereunder by his acceptance thereof likewise
covenants and agrees, that all Debentures shall be issued subject to the
provisions of this Article Fourteen; and each holder of a Debenture, whether
upon original issue or upon transfer or assignment thereof, accepts and agrees
to be bound by such provisions.
The payment of the principal of and premium, if any, and
interest on all Debentures issued hereunder shall, to the extent and in the
manner hereinafter set forth, be subordinated and junior in right of payment to
the prior payment in full of all Senior Indebtedness, whether outstanding at the
date of this Indenture or thereafter incurred.
No provision of this Article Fourteen shall prevent the
occurrence of any default or Event of Default hereunder.
SECTION 14.02. In the event and during the continuation of
any default in the payment of principal, premium, interest or any payment due on
any Senior Indebtedness continuing beyond the period of grace, if any, specified
in the instrument evidencing such Senior Indebtedness (and the Trustee has
received written notice thereof from the Company or one or more holders of
Senior Indebtedness or their representative or representatives or a trustee),
unless and until such default shall have been cured or waived or shall have
ceased to exist, and in the event that the maturity of any Senior Indebtedness
has been accelerated because of a default (and the Trustee has received written
notice thereof from the Company or one or more holders of Senior Indebtedness or
their representative or representatives or a trustee), then no payment shall be
made by the Company with respect to the principal (including redemption and
sinking fund payments) of or premium, if any, or interest on the Debentures.
In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any holder when such payment is prohibited
by the preceding paragraph of this Section 14.02, such payment shall be held in
trust for the benefit of, and shall be paid over or delivered to, the holders of
Senior Indebtedness or their respective representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior Indebtedness
may have been issued, as their respective interests may appear, but only to the
extent that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee within 90 days of such payment
of the amounts then due and owing on the Senior Indebtedness and only the
amounts specified in such notice to the Trustee shall be paid to the holders of
Senior Indebtedness.
SECTION 14.03. Upon any payment by the Company, or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, to creditors upon any dissolution, winding-up,
liquidation or reorganization of the Company, whether voluntary or involuntary
or in bankruptcy, insolvency, receivership or other proceedings, all amounts due
or to become due upon all Senior Indebtedness shall first be paid in full, or
payment thereof provided for in money in accordance with its terms, before any
payment is made on account of the principal (and premium, if any) or interest on
the Debentures; and upon any such dissolution, winding-up, liquidation or
reorganization, any payment by the Company or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
which the holders of the Debentures or the Trustee would be entitled, except for
the provisions of this Article Fourteen, shall be paid by the Company, by any
receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, by the holders of the Debentures or by the
Trustee under this Indenture if received by them or it directly to the holders
of Senior Indebtedness (pro rata to such holders on the basis of the respective
amounts of Senior Indebtedness held by such holders, as calculated by the
Company) or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing any
Senior Indebtedness may have been issued, as their respective interests may
appear, to the extent necessary to pay all Senior Indebtedness in full, in money
or money's worth, after giving effect to any concurrent payment or distribution
to or for the holders of Senior Indebtedness, before any payment or distribution
is made to the holders of Debentures or to the Trustee.
In the event that, notwithstanding the foregoing, any payment
or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, prohibited by the foregoing, shall be received by
the Trustee or the holders of the Debentures before all Senior Indebtedness is
paid in full, or provision is made for such payment in money in accordance with
its terms, such payment or distribution shall be held in trust for the benefit
of and shall be paid over or delivered to the holders of Senior Indebtedness or
their representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any Senior Indebtedness
may have been issued, as their respective interests may appear, as calculated by
the Company, for application to the payment of Senior Indebtedness remaining
unpaid to the extent necessary to pay all Senior Indebtedness in full in money
in accordance with its terms, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness.
For purposes of this Article Fourteen, the words, "cash,
property or securities" shall not be deemed to include shares of stock of the
Company as reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this Article
Fourteen with respect to the Debentures to the payment of all Senior
Indebtedness which may at the time be outstanding; provided that (i) the Senior
Indebtedness is assumed by the new corporation, if any, resulting from any such
reorganization or readjustment, and (ii) the rights of the holders of the Senior
Indebtedness are not, without the consent of such holders, altered by such
reorganization or readjustment. The consolidation of the Company with, or the
merger of the Company into, another corporation or the liquidation or
dissolution of the Company following the conveyance or transfer of its property
as an entirety, or substantially as an entirety, to another corporation upon the
terms and conditions provided for in Article Ten hereof shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of this
Section 14.03 if such other corporation shall, as a part of such consolidation,
merger, conveyance or transfer, comply with the conditions stated in Article Ten
hereof. Nothing in Section 14.02 or in this Section 14.03 shall apply to claims
of, or payments to, the Trustee under or pursuant to Section 7.06.
SECTION 14.04. Subject to the payment in full of all Senior
Indebtedness, the rights of the holders of the Debentures shall be subrogated to
the rights of the holders of Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company applicable to the
Senior Indebtedness until the principal of (and premium, if any) and interest on
the Debentures shall be paid in full; and, for the purposes of such subrogation,
no payments or distributions to the holders of the Senior Indebtedness of any
cash, property or securities to which the holders of the Debentures or the
Trustee would be entitled except for the provisions of this Article Fourteen,
and no payment over pursuant to the provisions of this Article Fourteen, to or
for the benefit of the holders of Senior Indebtedness by holders of the
Debentures or the Trustee, shall, as between the Company, its creditors other
than holders of Senior Indebtedness, and the holders of the Debentures, be
deemed to be a payment by the Company to or on account of the Senior
Indebtedness. It is understood that the provisions of this Article Fourteen are
and are intended solely for the purposes of defining the relative rights of the
holders of the Debentures, on the one hand, and the holders of the Senior
Indebtedness on the other hand.
Nothing contained in this Article Fourteen or elsewhere in
this Indenture or in the Debentures is intended to or shall impair, as between
the Company, its creditors other than the holders of Senior Indebtedness, and
the holders of the Debentures, the obligation of the Company, which is absolute
and unconditional, to pay to the holders of the Debentures the principal of (and
premium, if any) and interest on the Debentures as and when the same shall
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the holders of the Debentures and creditors
of the Company other than the holders of the Senior Indebtedness, nor shall
anything herein or therein prevent the Trustee or the holder of any Debenture
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article Fourteen
of the holders of Senior Indebtedness in respect of cash, property or securities
of the Company received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article Fourteen, the Trustee, subject to the provision of
Section 7.01, and the holders of the Debentures shall be entitled to rely upon
any order or decree made by any court of competent jurisdiction in which such
dissolution, winding-up, liquidation or reorganization proceedings are pending,
or a certificate of the receiver, trustee in bankruptcy, liquidation trustee,
agent or other person making such payment or distribution, delivered to the
Trustee or to the holders of the Debentures, for the purposes of ascertaining
the persons entitled to participate in such distribution, the holders of the
Senior Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article Fourteen.
SECTION 14.05. Each holder of a Debenture by acceptance
thereof authorizes and directs the Trustee in his, her or its behalf to take
such action as may be necessary or appropriate to effectuate the subordination
provided in this Article Fourteen and appoints the Trustee his attorney-in-fact
for any and all such purposes.
SECTION 14.06. The Company shall give prompt written
notice to a Responsible Officer of the Trustee of any fact known to the Company
which would prohibit the making of any payment of monies to or by the Trustee or
paying agent in respect of the Debentures pursuant to the provisions of this
Article Fourteen. Notwithstanding the provisions of this Article Fourteen or any
other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment of monies to or by the Trustee or paying agent in respect of the
Debentures pursuant to the provisions of this Article Fourteen, unless and until
a Responsible Officer of the Trustee shall have received written notice thereof
at the Corporate Trust Office of the Trustee from the Company or a holder or
holders of Senior Indebtedness or from any trustee therefor; and before the
receipt of any such written notice, the Trustee, subject to the provisions of
Section 7.01, shall be entitled in all respects to assume that no such facts
exist; provided that if the Trustee shall not have received the notice provided
for in this Section 14.06 at least two Business Days prior to the date upon
which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of (or premium, if
any) or interest on any Debenture), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purposes for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it within two Business Days prior to such date.
The Trustee, subject to the provisions of Section 7.01, shall
be entitled to rely on the delivery to it of a written notice by a person
representing himself to be a holder of Senior Indebtedness (or a trustee on
behalf of such holder) to establish that such notice has been given by a holder
of Senior Indebtedness or a trustee on behalf of any such holder or holders. In
the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article Fourteen, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such person, the extent to which such person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such person under this Article Fourteen, and if such evidence is not furnished
the Trustee may defer any payment to such person pending judicial determination
as to the right of such person to receive such payment.
SECTION 14.07. The Trustee in its individual capacity shall be
entitled to all the rights set forth in this Article Fourteen in respect of any
Senior Indebtedness at any time held by it, to the same extent as any other
holder of Senior Indebtedness, and nothing in this Indenture shall deprive the
Trustee or any Authenticating Agent of any of its rights as such holder.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article Fourteen, and no
implied covenants or obligations with respect to the holders of Senior
Indebtedness shall be read into this Indenture against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness and, subject to the provisions of Section 7.01, the Trustee shall
not be liable to any holder of Senior Indebtedness if it shall pay over or
deliver to holders of Debentures, the Company or any other person money or
assets to which any holder of Senior Indebtedness shall be entitled by virtue of
this Article Fourteen or otherwise.
SECTION 14.08. No right of any present or future holder of
any Senior Indebtedness to enforce subordination as herein provided shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of the Company or by any act or failure to act, in good faith, by any such
holder, or by any noncompliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof which any such
holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the holders of the
Debentures, without incurring responsibility to the holders of the Debentures
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the holders of the Debentures to the holders of
Senior Indebtedness, do any one or more of the following: (i) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
Senior Indebtedness, or otherwise amend or supplement in any manner Senior
Indebtedness or any instrument evidencing the same or any agreement under which
Senior Indebtedness is outstanding; (ii) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any person liable in any manner for the collection
of Senior Indebtedness; and (iv) exercise or refrain from exercising any rights
against the Company and any other person.
The Bank of New York, as Trustee, hereby accepts the trusts in
this Indenture declared and provided, upon the terms and conditions hereinabove
set forth.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
CENTRAL POWER AND LIGHT COMPANY
By:
Xxxxx X. Xxxxxx, Treasurer
Attest:
By:
Xxxxxx Xxxxxx, Secretary
THE BANK OF NEW YORK
as Trustee
By:
Its:
Attest:
By:
Its:
STATE OF )
) ss.
COUNTY OF )
On May 14, 1997 before me personally appeared Xxxxx X. Xxxxxx,
personally known to me or proved to me on the basis of satisfactory evidence to
be the person whose name is subscribed to the within instrument and acknowledged
to me that she executed the same in her authorized capacity, and that by her
signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
Witness my hand and official seal.
------------------------------
Signature of Notary Public
My Commission Expires:
STATE OF )
) ss.
COUNTY OF )
On this day of before me personally appeared proved to me on
the basis of satisfactory evidence to be the person whose name is subscribed to
the within instrument and acknowledged to me that he executed the same in his
authorized capacity and that by his signature on the instrument the person, or
the entity upon behalf of which the person acted, executed the instrument.
Witness my hand and official seal.
---------------------------
Signature of Notary Public
My Commission Expires:
