(As filed April 1, 1999)
File No. 70 -9133
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 3
TO
APPLICATION OR DECLARATION
ON
FORM U-1/A
UNDER
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
Ameren Corporation
Union Electric Company
Ameren Services Company
Union Electric Development Corporation
1901 Chouteau Avenue
St. Louis, Missouri 63103
Central Illinois Public Service Company
CIPSCO Investment Company
607 East Adams
Springfield, Illinois 62739
Electric Energy Incorporated
2100 Portland Road
Joppa, Illinois 62953
(Name of company or companies filing this statement
and address of principal executive offices)
Ameren Corporation
(Name of top registered holding company parent
of each applicant or declarant)
Steven R. Sullivan, Vice President
Ameren Services Company
1901 Chouteau Avenue
St. Louis, Missouri 63103
(Name and address of agent for service)
<PAGE>
The Commission is requested to send copies of all
notices, orders, and other communications in connection
with this Application or Declaration to:
William J. Niehoff, Esq. William T. Baker, Jr., Esq.
Ameren Services Company Thelen Reid & Priest LLP
1901 Chouteau Avenue 40 West 57th Street
P.O. Box 66149, MC 1310 New York, New York 10019-4097
St. Louis, Missouri
63166-6149
2
<PAGE>
Post-Effective Amendment No. 1, dated December 21, 1998, to
the Application or Declaration in this proceeding, as amended and
restated by Post-Effecetive Amendment No. 2, dated February 11,
1999, is hereby further amended as follows:
1. All references to the form of "Supplemental Indenture"
in ITEM 1.3 - PROPOSED MODIFICATIONS TO FINANCING ORDER are
-----------------------------------------
changed to refer to the form of "Officer's Certificate."
2. The following exhibits, listed in ITEM 6 - EXHIBITS AND
------------
FINANCIAL STATEMENTS, are hereby filed:
--------------------
(A) EXHIBITS.
--------
B-4 Form of Debentures (appended as Exhibit A to form
of Officer s Certificate (Exhibit B-6 hereto)).
B-5 Form of Debenture Indenture.
B-6 Form of Officer s Certificate.
B-7 Form of Debenture Purchase Agreement.
(B) FINANCIAL STATEMENTS.
--------------------
FS-1 - Ameren Consolidated Balance Sheet as of
December 31, 1998, and Consolidated
Statements of Income and Consolidated
Condensed Statement of Cash Flows for the
fiscal year ended December 31, 1998
(Incorporated by reference to Ameren s Form
10-K for the fiscal year ended September 30,
1998) (File No. 1-14756).
SIGNATURE
Pursuant to the requirements of the Public Utility Holding
Company Act of 1935, the undersigned companies have duly caused
this statement to be signed on their behalf by the undersigned
thereunto duly authorized.
Ameren Corporation
By: /s/ Steven R. Sullivan
----------------------
Name: Steven R. Sullivan
Title: Vice President and
Secretary
(Signatures continued on next page)
3
<PAGE>
Union Electric Company
By: /s/ Steven R. Sullivan
----------------------
Name: Steven R. Sullivan
Title: Vice President and
Secretary
Ameren Services Company
By: /s/ Jerre E. Birdsong
---------------------
Name: Jerre E. Birdsong
Title: Treasurer
Union Electric Development
Corporation
By: /s/ Jerre E. Birdsong
---------------------
Name: Jerre E. Birdsong
Title: Vice President and
Treasurer
Central Illinois Public Service
Company
By: /s/ Steven R. Sullivan
----------------------
Name: Steven R. Sullivan
Title: Secretary
CIPSCO Investment Company
By: /s/ Steven R. Sullivan
----------------------
Name: Steven R. Sullivan
Title: Secretary
Electric Energy Incorporated
By: /s/ R. Alan Kelley
------------------
Name: R. Alan Kelley
Title: President
Dated: April 1, 1999
4
Exhibit B-5
------------------------------------------
AMEREN CORPORATION
TO
--------------------
TRUSTEE
---------
INDENTURE
(FOR UNSECURED DEBT SECURITIES)
DATED AS OF ,
--------- -----
------------------------------------------
<PAGE>
TABLE OF CONTENTS
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITAL OF THE COMPANY
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . 2
Authorized Officer . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . 3
Company Request or Company Order . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . 3
corporation . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . 3
Discount Security . . . . . . . . . . . . . . . . . 3
Dollar or $ . . . . . . . . . . . . . . . . . . . . 3
Eligible Obligations . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . 3
Governmental Authority . . . . . . . . . . . . . . 3
Government Obligations . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . . . . 4
Officer's Certificate . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . 4
Outstanding . . . . . . . . . . . . . . . . . . . . 4
Paying Agent . . . . . . . . . . . . . . . . . . . 6
Periodic Offering . . . . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . . . . 6
Place of Payment . . . . . . . . . . . . . . . . . 6
Predecessor Security . . . . . . . . . . . . . . . 6
Redemption Date . . . . . . . . . . . . . . . . . . 6
Redemption Price . . . . . . . . . . . . . . . . . 6
Regular Record Date . . . . . . . . . . . . . . . . 6
Required Currency . . . . . . . . . . . . . . . . . 6
Note: This table of contents shall not, for any purpose, be
deemed to be part of the Indenture.
<PAGE>
Responsible Officer . . . . . . . . . . . . . . . . 6
Securities . . . . . . . . . . . . . . . . . . . . 6
Security Register and Security Registrar . . . . . 6
Special Record Date . . . . . . . . . . . . . . . . 7
Stated Interest Rate . . . . . . . . . . . . . . . 7
Stated Maturity . . . . . . . . . . . . . . . . . . 7
Subsidiary . . . . . . . . . . . . . . . . . . . . 7
Tranche . . . . . . . . . . . . . . . . . . . . . . 7
Trust Indenture Act . . . . . . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . . . . . 7
United States . . . . . . . . . . . . . . . . . . . 7
SECTION 102. Compliance Certificates and Opinions . . . 7
SECTION 103. Form of Documents Delivered to Trustee . . 8
SECTION 104. Acts of Holders . . . . . . . . . . . . . 9
SECTION 105. Notices, etc. to Trustee and Company . . . 11
SECTION 106. Notice to Holders of Securities; Waiver . 12
SECTION 107. Conflict with Trust Indenture Act . . . . 12
SECTION 108. Effect of Headings and Table of Contents . 12
SECTION 109. Successors and Assigns . . . . . . . . . . 12
SECTION 110. Separability Clause . . . . . . . . . . . 12
SECTION 111. Benefits of Indenture . . . . . . . . . . 13
SECTION 112. Governing Law . . . . . . . . . . . . . . 13
SECTION 113. Legal Holidays . . . . . . . . . . . . . . 13
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally . . . . . . . . . . . . . 13
SECTION 202. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . 14
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series . . . 14
SECTION 302. Denominations . . . . . . . . . . . . . . 18
SECTION 303. Execution, Authentication, Delivery and
Dating . . . . . . . . . . . . . . . . . . 18
SECTION 304. Temporary Securities . . . . . . . . . . . 21
SECTION 305. Registration, Registration of Transfer
and Exchange . . . . . . . . . . . . . . . 22
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . 23
SECTION 307. Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . . . 24
SECTION 308. Persons Deemed Owners . . . . . . . . . . 25
SECTION 309. Cancellation by Security Registrar . . . . 25
SECTION 310. Computation of Interest . . . . . . . . . 26
SECTION 311. Payment to Be in Proper Currency . . . . . 26
SECTION 312. Extension of Interest Payment . . . . . . 26
<PAGE>
ARTICLE FOUR
Redemption of Securities
SECTION 401. Applicability of Article . . . . . . . . . 26
SECTION 402. Election to Redeem; Notice to Trustee . . 27
SECTION 403. Selection of Securities to Be Redeemed . . 27
SECTION 404. Notice of Redemption . . . . . . . . . . . 28
SECTION 405. Securities Payable on Redemption Date . . 29
SECTION 406. Securities Redeemed in Part . . . . . . . 29
ARTICLE FIVE
Sinking Funds
SECTION 501. Applicability of Article . . . . . . . . . 30
SECTION 502. Satisfaction of Sinking Fund Payments
with Securities . . . . . . . . . . . . . 30
SECTION 503. Redemption of Securities for Sinking
Fund . . . . . . . . . . . . . . . . . . . 30
ARTICLE SIX
Covenants
SECTION 601. Payment of Principal, Premium and
Interest . . . . . . . . . . . . . . . . . 31
SECTION 602. Maintenance of Office or Agency . . . . . 31
SECTION 603. Money for Securities Payments to Be Held
in Trust . . . . . . . . . . . . . . . . . 32
SECTION 604. Corporate Existence . . . . . . . . . . . 33
SECTION 605. Maintenance of Properties . . . . . . . . 34
SECTION 606. Annual Officer's Certificate as to
Compliance. . . . . . . . . . . . . . . . 34
SECTION 607. Waiver of Certain Covenants . . . . . . . 34
SECTION 608. Limitation on Liens . . . . . . . . . . . 35
ARTICLE SEVEN
Satisfaction and Discharge
SECTION 701. Satisfaction and Discharge of Securities . 37
SECTION 702. Satisfaction and Discharge of Indenture . 40
SECTION 703. Application of Trust Money . . . . . . . . 41
ARTICLE EIGHT
Events of Default; Remedies
SECTION 801. Events of Default . . . . . . . . . . . . 41
SECTION 802. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . 43
SECTION 803. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . 44
SECTION 804. Trustee May File Proofs of Claim . . . . . 44
<PAGE>
SECTION 805. Trustee May Enforce Claims Without
Possession of Securities . . . . . . . . . 45
SECTION 806. Application of Money Collected . . . . . . 45
SECTION 807. Limitation on Suits . . . . . . . . . . . 46
SECTION 808. Unconditional Right of Holders to Receive
Principal, Premium and Interest . . . . . 47
SECTION 809. Restoration of Rights and Remedies . . . . 47
SECTION 810. Rights and Remedies Cumulative . . . . . . 47
SECTION 811. Delay or Omission Not Waiver . . . . . . . 47
SECTION 812. Control by Holders of Securities . . . . . 47
SECTION 813. Waiver of Past Defaults . . . . . . . . . 48
SECTION 814. Undertaking for Costs . . . . . . . . . . 48
SECTION 815. Waiver of Stay or Extension Laws . . . . . 49
ARTICLE NINE
The Trustee
SECTION 901. Certain Duties and Responsibilities . . . 49
SECTION 902. Notice of Defaults . . . . . . . . . . . . 50
SECTION 903. Certain Rights of Trustee . . . . . . . . 50
SECTION 904. Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . . 51
SECTION 905. May Hold Securities . . . . . . . . . . . 51
SECTION 906. Money Held in Trust . . . . . . . . . . . 51
SECTION 907. Compensation and Reimbursement . . . . . . 52
SECTION 908. Disqualification; Conflicting Interests. . 52
SECTION 909. Corporate Trustee Required; Eligibility . 53
SECTION 910. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . 53
SECTION 911. Acceptance of Appointment by Successor . . 55
SECTION 912. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . 57
SECTION 913. Preferential Collection of Claims Against
Company . . . . . . . . . . . . . . . . . 57
SECTION 914. Co-trustees and Separate Trustees. . . . . 57
SECTION 915. Appointment of Authenticating Agent . . . 59
ARTICLE TEN
Holders' Lists and Reports by Trustee and Company
SECTION 1001. Lists of Holders . . . . . . . . . . . . 61
SECTION 1002. Reports by Trustee and Company . . . . . 61
ARTICLE ELEVEN
Consolidation, Merger, Conveyance or Other Transfer
SECTION 1101. Company May Consolidate, etc., Only on
Certain Terms . . . . . . . . . . . . . . 61
SECTION 1102. Successor Corporation Substituted . . . . 62
<PAGE>
ARTICLE TWELVE
Supplemental Indentures
SECTION 1201. Supplemental Indentures Without Consent
of Holders . . . . . . . . . . . . . . . 62
SECTION 1202. Supplemental Indentures With Consent of
Holders . . . . . . . . . . . . . . . . . 64
SECTION 1203. Execution of Supplemental Indentures . . 66
SECTION 1204. Effect of Supplemental Indentures . . . . 66
SECTION 1205. Conformity With Trust Indenture Act . . . 66
SECTION 1206. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . 66
SECTION 1207. Modification Without Supplemental
Indenture . . . . . . . . . . . . . . . . 66
ARTICLE THIRTEEN
Meetings of Holders; Action Without Meeting
SECTION 1301. Purposes for Which Meetings May Be
Called . . . . . . . . . . . . . . . . . 67
SECTION 1302. Call, Notice and Place of Meetings . . . 67
SECTION 1303. Persons Entitled to Vote at Meetings . . 68
SECTION 1304. Quorum; Action . . . . . . . . . . . . . 68
SECTION 1305. Attendance at Meetings; Determination of
Voting Rights; Conduct and Adjournment of
Meetings . . . . . . . . . . . . . . . . 69
SECTION 1306. Counting Votes and Recording Action of
Meetings . . . . . . . . . . . . . . . . 70
SECTION 1307. Action Without Meeting . . . . . . . . . 70
ARTICLE FOURTEEN
Immunity of Incorporators, Shareholders, Officers and Directors
SECTION 1401. Liability Solely Corporate . . . . . . . 70
ARTICLE FIFTEEN
Series Notes
-
SECTION 1501. Designation of Series Notes . . . . . . 71
-
Testimonium . . . . . . . . . . . . . . . . . . . . . . . . . 72
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . 73
Acknowledgements . . . . . . . . . . . . . . . . . . . . . . 74
<PAGE>
AMEREN CORPORATION
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF ,
--------- ----
TRUST INDENTURE ACT SECTION INDENTURE SECTION
(Section)310 (a)(1) . . . . . . . . . . . . . . . . . . . . 909
(a)(2) . . . . . . . . . . . . . . . . . . . . 909
(a)(3) . . . . . . . . . . . . . . . . . . . . 914
(a)(4) . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . 908
910
(Section)311 (a) . . . . . . . . . . . . . . . . . . . . . 913
(b) . . . . . . . . . . . . . . . . . . . . . 913
(c) . . . . . . . . . . . . . . . . . . . . . 913
(Section)312 (a) . . . . . . . . . . . . . . . . . . . . 1001
(b) . . . . . . . . . . . . . . . . . . . . 1001
(c) . . . . . . . . . . . . . . . . . . . . 1001
(Section)313 (a) . . . . . . . . . . . . . . . . . . . . 1002
(b) . . . . . . . . . . . . . . . . . . . . 1002
(c) . . . . . . . . . . . . . . . . . . . . 1002
(Section)314 (a) . . . . . . . . . . . . . . . . . . . . 1002
(a)(4) . . . . . . . . . . . . . . . . . . . . 606
(b) . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . 102
(Section)315 (a) . . . . . . . . . . . . . . . . . . . . . 901
903
(b) . . . . . . . . . . . . . . . . . . . . . 902
(c) . . . . . . . . . . . . . . . . . . . . . 901
(d) . . . . . . . . . . . . . . . . . . . . . 901
(e) . . . . . . . . . . . . . . . . . . . . . 814
(Section)316 (a) . . . . . . . . . . . . . . . . . . . . . 812
813
(a)(1)(A) . . . . . . . . . . . . . . . . . . 802
812
(a)(1)(B) . . . . . . . . . . . . . . . . . . 813
(a)(2) . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . 808
(Section)317 (a)(1) . . . . . . . . . . . . . . . . . . . . 803
(a)(2) . . . . . . . . . . . . . . . . . . . . 804
(b) . . . . . . . . . . . . . . . . . . . . . 603
(Section)318 (a) . . . . . . . . . . . . . . . . . . . . . 107
<PAGE>
INDENTURE, dated as of , , between AMEREN
--------- ----
CORPORATION, a corporation duly organized and existing under the
laws of the State of Missouri (herein called the "Company"),
having its principal office at 1901 Chouteau Avenue, St. Louis,
Missouri 63103, and , a banking corporation
--------------------
of the State of , having its principal corporate trust
--------
office at , as Trustee (herein called the
------------------------
"Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time
to time of its unsecured debentures, notes or other evidences of
indebtedness (herein called the "Securities"), in an unlimited
aggregate principal amount to be issued in one or more series as
contemplated herein; and all acts necessary to make this
Indenture a valid agreement of the Company have been performed.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires,
capitalized terms used herein shall have the meanings assigned to
them in Article One of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of
all Holders of the Securities or of any series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as
well as the singular;
(b) all terms used herein without definition which are
defined in the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with
generally accepted accounting principles in the United States,
and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United
States at the date of such computation or, at the election of
the Company from time to time, at the date of the execution
<PAGE>
and delivery of this Indenture; provided, however, that in
determining generally accepted accounting principles
applicable to the Company, the Company shall, to the extent
required, conform to any order, rule or regulation of any
administrative agency, regulatory authority or other govern-
mental body having jurisdiction over the Company; and
(d) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
Certain terms, used principally in Article Nine, are de-
fined in that Article.
"ACT", when used with respect to any Holder of a
Security, has the meaning specified in Section 104.
"AFFILIATE" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For the purposes of this definition, "CONTROL" when used
with respect to any specified Person means the power to direct
the management and policies of such Person, directly or through
one or more intermediaries, whether through the ownership of
voting securities, by contract or otherwise; and the terms
"CONTROLLING" and "CONTROLLED" have meanings correlative to the
foregoing.
"AUTHENTICATING AGENT" means any Person (other than the
Company or an Affiliate of the Company) authorized by the Trustee
pursuant to Section 915 to act on behalf of the Trustee to
authenticate one or more series of Securities or Tranche thereof.
"AUTHORIZED OFFICER" means the Chairman of the Board, the
President, any Vice President, the Treasurer, any Assistant
Treasurer, or any other officer or agent of the Company duly
authorized by the Board of Directors to act in respect of matters
relating to this Indenture.
"BOARD OF DIRECTORS" means either the board of directors
of the Company or any committee thereof duly authorized to act in
respect of matters relating to this Indenture.
"BOARD RESOLUTION" means a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Company to have
been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification, and delivered
to the Trustee.
"BUSINESS DAY", when used with respect to a Place of
Payment or any other particular location specified in the
Securities or this Indenture, means any day, other than a
Saturday or Sunday, which is not a day on which banking
institutions or trust companies in such Place of Payment or other
location are generally authorized or required by law, regulation
or executive order to remain closed, except as may be otherwise
specified as contemplated by Section 301.
<PAGE>
"COMMISSION" means the Securities and Exchange Commis-
sion, as from time to time constituted, created under the
Securities Exchange Act of 1934, as amended, or, if at any time
after the date of execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body, if any, per-
forming such duties at such time.
"COMPANY" means the Person named as the "Company" in the
first paragraph of this Indenture until a successor Person shall
have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Company" shall mean such successor
Person.
"COMPANY REQUEST" or "COMPANY ORDER" means a written re-
quest or order signed in the name of the Company by an Authorized
Officer and delivered to the Trustee.
"CORPORATE TRUST OFFICE" means the office of the Trustee
at which at any particular time its corporate trust business
shall be principally administered, which office at the date of
execution and delivery of this Indenture is located at
.
-------------------------------
"CORPORATION" means a corporation, association, company,
limited liability company, joint stock company or business trust.
"DEFAULTED INTEREST" has the meaning specified in Section
307.
"DISCOUNT SECURITY" means any Security which provides for
an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 802. "Interest" with respect to a
Discount Security means interest, if any, borne by such Security
at a Stated Interest Rate.
"DOLLAR" or "$" means a dollar or other equivalent unit
in such coin or currency of the United States as at the time
shall be legal tender for the payment of public and private
debts.
"ELIGIBLE OBLIGATIONS" means:
(a) with respect to Securities denominated in Dollars,
Government Obligations; or
(b) with respect to Securities denominated in a currency
other than Dollars or in a composite currency, such other
obligations or instruments as shall be specified with respect
to such Securities, as contemplated by Section 301.
"EVENT OF DEFAULT" has the meaning specified in Section
801.
"GOVERNMENTAL AUTHORITY" means the government of the
United States or of any State or Territory thereof or of the
District of Columbia or of any county, municipality or other
political subdivision of any of the foregoing, or any department,
agency, authority or other instrumentality of any of the
foregoing.
<PAGE>
"GOVERNMENT OBLIGATIONS" means:
(a) direct obligations of, or obligations the principal
of and interest on which are unconditionally guaranteed by,
the United States and entitled to the benefit of the full
faith and credit thereof; and
(b) certificates, depositary receipts or other in-
struments which evidence a direct ownership interest in obli-
gations described in clause (a) above or in any specific
interest or principal payments due in respect thereof;
provided, however, that the custodian of such obligations or
specific interest or principal payments shall be a bank or
trust company (which may include the Trustee or any Paying
Agent) subject to Federal or state supervision or examination
with a combined capital and surplus of at least $50,000,000;
and provided, further, that except as may be otherwise
required by law, such custodian shall be obligated to pay to
the holders of such certificates, depositary receipts or other
instruments the full amount received by such custodian in
respect of such obligations or specific payments and shall not
be permitted to make any deduction therefrom.
"HOLDER" means a Person in whose name a Security is registered
in the Security Register.
"INDENTURE" means this instrument as originally executed and
delivered and as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall
include the terms of a particular series of Securities
established as contemplated by Section 301.
"INTEREST PAYMENT DATE", when used with respect to any
Security, means the Stated Maturity of an installment of interest
on such Security.
"MATURITY", when used with respect to any Security, means the
date on which the principal of such Security or an installment of
principal becomes due and payable as provided in such Security or
in this Indenture, whether at the Stated Maturity, by declaration
of acceleration, upon call for redemption or otherwise.
"OFFICER'S CERTIFICATE" means a certificate signed by an
Authorized Officer and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who
may be counsel for the Company, or other counsel acceptable to
the Trustee.
"OUTSTANDING", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
<PAGE>
(a) Securities theretofore canceled or delivered to the
Security Registrar for cancellation;
(b) Securities deemed to have been paid in accordance
with Section 701; and
(c) Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which
there shall have been presented to the Trustee proof
satisfactory to it and the Company that such Securities are
held by a bona fide purchaser or purchasers in whose hands
such Securities are valid obligations of the Company;
provided, however, that in determining whether or not the Holders
of the requisite principal amount of the Securities Outstanding
under this Indenture, or the Outstanding Securities of any series
or Tranche, have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or whether or not
a quorum is present at a meeting of Holders of Securities,
(x) Securities owned by the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such
other obligor (unless the Company, such Affiliate or such
obligor owns all Securities Outstanding under this Indenture,
or (except for the purposes of actions to be taken by Holders
of (i) more than one series voting as a class under Section
812 or (ii) more than one series or more than one Tranche, as
the case may be, voting as a class under Section 1202) all
Outstanding Securities of each such series and each such
Tranche, as the case may be, determined without regard to this
clause (x)) shall be disregarded and deemed not to be Out-
standing, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver or upon
any such determination as to the presence of a quorum, only
Securities which the Trustee knows to be so owned shall be so
disregarded; provided, however, that Securities so owned which
have been pledged in good faith may be regarded as Outstanding
if the pledgee establishes to the satisfaction of the Trustee
the pledgee's right so to act with respect to such Securities
and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such
other obligor; and
(y) the principal amount of a Discount Security that
shall be deemed to be Outstanding for such purposes shall be
the amount of the principal thereof that would be due and
payable as of the date of such determination upon a
declaration of acceleration of the Maturity thereof pursuant
to Section 802;
provided, further, that, in the case of any Security the
principal of which is payable from time to time without
presentment or surrender, the principal amount of such Security
that shall be deemed to be Outstanding at any time for all
purposes of this Indenture shall be the original principal amount
thereof less the aggregate amount of principal thereof
theretofore paid.
<PAGE>
"PAYING AGENT" means any Person, including the Company,
authorized by the Company to pay the principal of, and premium,
if any, or interest, if any, on any Securities on behalf of the
Company.
"PERIODIC OFFERING" means an offering of Securities of a
series from time to time any or all of the specific terms of
which Securities, including without limitation the rate or rates
of interest, if any, thereon, the Stated Maturity or Maturities
thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Company or its agents upon
the issuance of such Securities.
"PERSON" means any individual, corporation, partnership, joint
venture, trust or unincorporated organization or any Governmental
Authority.
"PLACE OF PAYMENT", when used with respect to the Securities
of any series, or any Tranche thereof, means the place or places,
specified as contemplated by Section 301, at which, subject to
Section 602, principal of and premium, if any, and interest, if
any, on the Securities of such series or Tranche are payable.
"PREDECESSOR SECURITY" of any particular Security means every
previous Security evidencing all or a portion of the same debt as
that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered
under Section 306 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed (to the extent
lawful) to evidence the same debt as the mutilated, destroyed,
lost or stolen Security.
"REDEMPTION DATE", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture.
"REDEMPTION PRICE", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed
pursuant to this Indenture.
"REGULAR RECORD DATE" for the interest payable on any Interest
Payment Date on the Securities of any series means the date
specified for that purpose as contemplated by Section 301.
"REQUIRED CURRENCY" has the meaning specified in Section 311.
"RESPONSIBLE OFFICER", when used with respect to the Trustee,
means any officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"SECURITIES" has the meaning stated in the first recital of
this Indenture and more particularly means any securities authen-
ticated and delivered under this Indenture.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the
respective meanings specified in Section 305.
<PAGE>
"SPECIAL RECORD DATE" for the payment of any Defaulted
Interest on the Securities of any series means a date fixed by
the Trustee pursuant to Section 307.
"STATED INTEREST RATE" means a rate (whether fixed or
variable) at which an obligation by its terms is stated to bear
simple interest. Any calculation or other determination to be
made under this Indenture by reference to the Stated Interest
Rate on a Security shall be made without regard to the effective
interest cost to the Company of such Security and without regard
to the Stated Interest Rate on, or the effective cost to the
Company of, any other indebtedness in respect of which the
Company's obligations are evidenced or secured in whole or in
part by such Security.
"STATED MATURITY", when used with respect to any obligation or
any installment of principal thereof or interest thereon, means
the date on which the principal of such obligation or such
installment of principal or interest is stated to be due and
payable (without regard to any provisions for redemption,
prepayment, acceleration, purchase or extension).
"SUBSIDIARY" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or
indirectly, by the Company or by one or more other Subsidiaries,
or by the Company and one or more other Subsidiaries. For the
purposes of this definition, "voting stock" means stock that
ordinarily has voting power for the election of directors,
whether at all times or only so long as no senior class of stock
has such voting power by reason of any contingency.
"TRANCHE" means a group of Securities which (a) are of the
same series and (b) have identical terms except as to principal
amount and/or date of issuance.
"TRUST INDENTURE ACT" means, as of any time, the Trust
Indenture Act of 1939, or any successor statute, as in effect at
such time.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have
become such with respect to one or more series of Securities
pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean or include each Person who is
then a Trustee hereunder, and if at any time there is more than
one such Person, "Trustee" as used with respect to the Securities
of any series shall mean the Trustee with respect to Securities
of that series.
"UNITED STATES" means the United States of America, its
Territories, its possessions and other areas subject to its
political jurisdiction.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided in this Indenture,
upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the
Company shall, if requested by the Trustee, furnish to the
Trustee an Officer's Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the
<PAGE>
proposed action (including any covenants compliance with which
constitutes a condition precedent) have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel
all such conditions precedent, if any, have been complied with,
except that in the case of any such application or request as to
which the furnishing of such documents is specifically required
by any provision of this Indenture relating to such particular
application or request, no additional certificate or opinion need
be furnished.
Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture shall
include:
(a) a statement that each Person signing such cer-
tificate or opinion has read such covenant or condition and
the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such
Person, such Person has made such examination or investigation
as is necessary to enable such Person to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of each
such Person, such condition or covenant has been complied
with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person,
it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be
so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one
or several documents.
Any certificate or opinion of an officer of the Company
may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless
such officer knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with
respect to the matters upon which such Officer's Certificate or
opinion are based are erroneous. Any such certificate or Opinion
of Counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by,
an officer or officers of the Company stating that the
information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are
erroneous.
<PAGE>
Where any Person is required to make, give or execute two
or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.
Whenever, subsequent to the receipt by the Trustee of any
Board Resolution, Officer's Certificate, Opinion of Counsel or
other document or instrument, a clerical, typographical or other
inadvertent or unintentional error or omission shall be
discovered therein, a new document or instrument may be
substituted therefor in corrected form with the same force and
effect as if originally filed in the corrected form and,
irrespective of the date or dates of the actual execution and/or
delivery thereof, such substitute document or instrument shall be
deemed to have been executed and/or delivered as of the date or
dates required with respect to the document or instrument for
which it is substituted. Anything in this Indenture to the
contrary notwithstanding, if any such corrective document or
instrument indicates that action has been taken by or at the
request of the Company which could not have been taken had the
original document or instrument not contained such error or
omission, the action so taken shall not be invalidated or
otherwise rendered ineffective but shall be and remain in full
force and effect, except to the extent that such action was a
result of willful misconduct or bad faith. Without limiting the
generality of the foregoing, any Securities issued under the
authority of such defective document or instrument shall
nevertheless be the valid obligations of the Company entitled to
the benefits of this Indenture equally and ratably with all other
Outstanding Securities, except as aforesaid.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction,
notice, consent, election, waiver or other action provided by
this Indenture to be made, given or taken by Holders may be
embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person
or by an agent duly appointed in writing or, alternatively,
may be embodied in and evidenced by the record of Holders
voting in favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders duly called
and held in accordance with the provisions of Article
Thirteen, or a combination of such instruments and any such
record. Except as herein otherwise expressly provided, such
action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee
and, where it is hereby expressly required, to the Company.
Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such
instrument or instruments and so voting at any such meeting.
Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of
a Security, shall be sufficient for any purpose of this
Indenture and (subject to Section 901) conclusive in favor of
the Trustee and the Company, if made in the manner provided in
this Section. The record of any meeting of Holders shall be
proved in the manner provided in Section 1306.
<PAGE>
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the affidavit
of a witness of such execution or by a certificate of a notary
public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the
execution thereof or may be proved in any other manner which
the Trustee and the Company deem sufficient. Where such
execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority.
(c) The principal amount (except as otherwise
contemplated in clause (y) of the first proviso to the
definition of Outstanding) and serial numbers of Securities
held by any Person, and the date of holding the same, shall be
proved by the Security Register.
(d) Any request, demand, authorization, direction, no-
tice, consent, election, waiver or other Act of a Holder shall
bind every future Holder of the same Security and the Holder
of every Security issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect
of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
(e) Until such time as written instruments shall have
been delivered to the Trustee with respect to the requisite
percentage of principal amount of Securities for the action
contemplated by such instruments, any such instrument executed
and delivered by or on behalf of a Holder may be revoked with
respect to any or all of such Securities by written notice by
such Holder or any subsequent Holder, proven in the manner in
which such instrument was proven.
(f) Securities of any series, or any Tranche thereof,
authenticated and delivered after any Act of Holders may, and
shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any action taken by such Act of
Holders. If the Company shall so determine, new Securities of
any series, or any Tranche thereof, so modified as to conform,
in the opinion of the Trustee and the Company, to such action
may be prepared and executed by the Company and authenticated
and delivered by the Trustee in exchange for Outstanding
Securities of such series or Tranche.
(g) If the Company shall solicit from Holders any
request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, fix in
advance a record date for the determination of Holders
entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so. If such a record
date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or
after such record date, but only the Holders of record at the
close of business on the record date shall be deemed to be
<PAGE>
Holders for the purposes of determining whether Holders of the
requisite proportion of the Outstanding Securities have
authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be
computed as of the record date.
SECTION 105. NOTICES, ETC. TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice,
consent, election, waiver or Act of Holders or other document
provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with, the Trustee by any Holder or by the
Company, or the Company by the Trustee or by any Holder, shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and delivered personally to an
officer or other responsible employee of the addressee, or
transmitted by facsimile transmission or other direct written
electronic means to such telephone number or other electronic
communications address as the parties hereto shall from time to
time designate, or transmitted by certified or registered mail,
charges prepaid, to the applicable address set opposite such
party's name below or to such other address as either party
hereto may from time to time designate:
If to the Trustee, to:
--------------------
------------------------
-------------------------
Attention:
----------------
Telephone: ( )
--- --------
Telecopy: ( )
--- --------
If to the Company, to:
Ameren Corporation
1901 Chouteau Avenue
St. Louis, Missouri 63103
Attention:
---------
Telephone: ( )
--- --------
Telecopy: ( )
--- --------
Any communication contemplated herein shall be deemed to
have been made, given, furnished and filed if personally
delivered, on the date of delivery, if transmitted by facsimile
transmission or other direct written electronic means, on the
date of transmission, and if transmitted by certified or
registered mail, on the date of receipt.
<PAGE>
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided herein, where this
Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given, and shall be deemed given, to
Holders if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at the address of such Holder
as it appears in the Security Register, not later than the latest
date, if any, and not earlier than the earliest date, if any,
prescribed for the giving of such notice.
In case by reason of the suspension of regular mail serv-
ice or by reason of any other cause it shall be impracticable to
give such notice to Holders by mail, then such notification as
shall be made with the approval of the Trustee shall constitute a
sufficient notification for every purpose hereunder. In any case
where notice to Holders is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice
with respect to other Holders.
Any notice required by this Indenture may be waived in
writing by the Person entitled to receive such notice, either
before or after the event otherwise to be specified therein, and
such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision of this Indenture limits, qualifies or
conflicts with another provision hereof which is required or
deemed to be included in this Indenture by, or is otherwise
governed by, any of the provisions of the Trust Indenture Act,
such other provision shall control; and if any provision hereof
otherwise conflicts with the Trust Indenture Act, the Trust
Indenture Act shall control.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings in this Indenture and
the Table of Contents are for convenience only and shall not
affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the
Company and Trustee shall bind their respective successors and
assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or the Securities
shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
<PAGE>
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or the Securities, express or
implied, shall give to any Person, other than the parties hereto,
their successors hereunder and the Holders, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities shall be governed by
and construed in accordance with the laws of the [State of New
York], except to the extent that the law of any other
jurisdiction shall be mandatorily applicable.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption
Date or Stated Maturity of any Security shall not be a Business
Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities other than a
provision in Securities of any series, or any Tranche thereof, or
in the Board Resolution or Officer's Certificate which
establishes the terms of the Securities of such series or
Tranche, which specifically states that such provision shall
apply in lieu of this Section) payment of interest or principal
and premium, if any, need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at
such Place of Payment, with the same force and effect, and in the
same amount, as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity, as the case may be,
and, if such payment is made or duly provided for on such
Business Day, no interest shall accrue on the amount so payable
for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be, to such
Business Day.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The definitive Securities of each series shall be in
substantially the form or forms thereof established in the
indenture supplemental hereto establishing such series or in a
Board Resolution establishing such series, or in an Officer's
Certificate pursuant to such supplemental indenture or Board
Resolution, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as
evidenced by their execution of the Securities. If the form or
forms of Securities of any series are established in a Board
Resolution or in an Officer's Certificate pursuant to a Board
<PAGE>
Resolution, such Board Resolution and Officer's Certificate, if
any, shall be delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
Unless otherwise specified as contemplated by Sections
301 or 1201(g), the Securities of each series shall be issuable
in registered form without coupons. The definitive Securities
shall be produced in such manner as shall be determined by the
officers executing such Securities, as evidenced by their
execution thereof.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in
substantially the form set forth below:
This is one of the Securities of the series desig-
nated therein referred to in the within-mentioned
Indenture.
Dated:
---------------------------------
as Trustee
By:
-----------------------------
Authorized Signatory
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series.
Subject to the last paragraph of this Section, prior to the
authentication and delivery of Securities of any series there
shall be established by specification in a supplemental indenture
or in a Board Resolution, or in an Officer's Certificate pursuant
to a supplemental indenture or a Board Resolution:
(a) the title of the Securities of such series (which
shall distinguish the Securities of such series from
Securities of all other series);
<PAGE>
(b) any limit upon the aggregate principal amount of the
Securities of such series which may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Securities of such
series pursuant to Section 304, 305, 306, 406 or 1206 and
except for any Securities which, pursuant to Section 303, are
deemed never to have been authenticated and delivered
hereunder);
(c) the Person or Persons (without specific
identification) to whom interest on Securities of such series,
or any Tranche thereof, shall be payable on any Interest
Payment Date, if other than the Persons in whose names such
Securities (or one or more Predecessor Securities) are
registered at the close of business on the Regular Record Date
for such interest;
(d) the date or dates on which the principal of the
Securities of such series, or any Tranche thereof, is payable
or any formulary or other method or other means by which such
date or dates shall be determined, by reference to an index or
other fact or event ascertainable outside of this Indenture or
otherwise (without regard to any provisions for redemption,
prepayment, acceleration, purchase or extension);
(e) the rate or rates at which the Securities of such
series, or any Tranche thereof, shall bear interest, if any
(including the rate or rates at which overdue principal shall
bear interest, if different from the rate or rates at which
such Securities shall bear interest prior to Maturity, and, if
applicable, the rate or rates at which overdue premium or
interest shall bear interest, if any), or any formulary or
other method or other means by which such rate or rates shall
be determined, by reference to an index or other fact or event
ascertainable outside of this Indenture or otherwise; the date
or dates from which such interest shall accrue; the Interest
Payment Dates on which such interest shall be payable and the
Regular Record Date, if any, for the interest payable on such
Securities on any Interest Payment Date; the right of the
Company, if any, to extend the interest payment periods and
the duration of any such extension as contemplated by Section
312; and the basis of computation of interest, if other than
as provided in Section 310;
(f) the place or places at which or methods by which (1)
the principal of and premium, if any, and interest, if any, on
Securities of such series, or any Tranche thereof, shall be
payable, (2) registration of transfer of Securities of such
series, or any Tranche thereof, may be effected, (3) exchanges
of Securities of such series, or any Tranche thereof, may be
effected and (4) notices and demands to or upon the Company in
respect of the Securities of such series, or any Tranche
thereof, and this Indenture may be served; the Security
Registrar for such series or Tranche; and if such is the case,
that the principal of such Securities shall be payable without
presentment or surrender thereof;
(g) the period or periods within which, or the date or
dates on which, the price or prices at which and the terms and
conditions upon which the Securities of such series, or any
<PAGE>
Tranche thereof, may be redeemed, in whole or in part, at the
option of the Company and any restrictions on such
redemptions, including but not limited to a restriction on a
partial redemption by the Company of the Securities of any
series, or any Tranche thereof, resulting in delisting of such
Securities from any national exchange;
(h) the obligation or obligations, if any, of the
Company to redeem or purchase the Securities of such series,
or any Tranche thereof, pursuant to any sinking fund or other
mandatory redemption provisions or at the option of a Holder
thereof and the period or periods within which or the date or
dates on which, the price or prices at which and the terms and
conditions upon which such Securities shall be redeemed or
purchased, in whole or in part, pursuant to such obligation,
and applicable exceptions to the requirements of Section 404
in the case of mandatory redemption or redemption at the
option of the Holder;
(i) the denominations in which Securities of such
series, or any Tranche thereof, shall be issuable if other
than denominations of $1,000 and any integral multiple
thereof;
(j) the currency or currencies, including composite
currencies, in which payment of the principal of and premium,
if any, and interest, if any, on the Securities of such
series, or any Tranche thereof, shall be payable (if other
than in Dollars);
(k) if the principal of or premium, if any, or interest,
if any, on the Securities of such series, or any Tranche
thereof, are to be payable, at the election of the Company or
a Holder thereof, in a coin or currency other than that in
which the Securities are stated to be payable, the period or
periods within which and the terms and conditions upon which,
such election may be made;
(l) if the principal of or premium, if any, or interest,
if any, on the Securities of such series, or any Tranche
thereof, are to be payable, or are to be payable at the
election of the Company or a Holder thereof, in securities or
other property, the type and amount of such securities or
other property, or the formulary or other method or other
means by which such amount shall be determined, and the period
or periods within which, and the terms and conditions upon
which, any such election may be made;
(m) if the amount payable in respect of principal of or
premium, if any, or interest, if any, on the Securities of
such series, or any Tranche thereof, may be determined with
reference to an index or other fact or event ascertainable
outside of this Indenture, the manner in which such amounts
shall be determined to the extent not established pursuant to
clause (e) of this paragraph;
<PAGE>
(n) if other than the principal amount thereof, the
portion of the principal amount of Securities of such series,
or any Tranche thereof, which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant
to Section 802;
(o) any Events of Default, in addition to those
specified in Section 801, with respect to the Securities of
such series, and any covenants of the Company for the benefit
of the Holders of the Securities of such series, or any
Tranche thereof, in addition to those set forth in Article
Six;
(p) the terms, if any, pursuant to which the Securities
of such series, or any Tranche thereof, may be converted into
or exchanged for shares of capital stock or other securities
of the Company or any other Person;
(q) the obligations or instruments, if any, which shall
be considered to be Eligible Obligations in respect of the
Securities of such series, or any Tranche thereof, denominated
in a currency other than Dollars or in a composite currency,
and any additional or alternative provisions for the
reinstatement of the Company's indebtedness in respect of such
Securities after the satisfaction and discharge thereof as
provided in Section 701;
(r) if the Securities of such series, or any Tranche
thereof, are to be issued in global form, (i) any limitations
on the rights of the Holder or Holders of such Securities to
transfer or exchange the same or to obtain the registration of
transfer thereof, (ii) any limitations on the rights of the
Holder or Holders thereof to obtain certificates therefor in
definitive form in lieu of temporary form and (iii) any and
all other matters incidental to such Securities;
(s) if the Securities of such series, or any Tranche
thereof, are to be issuable as bearer securities, any and all
matters incidental thereto which are not specifically
addressed in a supplemental indenture as contemplated by
clause (g) of Section 1201;
(t) to the extent not established pursuant to clause (r)
of this paragraph, any limitations on the rights of the
Holders of the Securities of such Series, or any Tranche
thereof, to transfer or exchange such Securities or to obtain
the registration of transfer thereof; and if a service charge
will be made for the registration of transfer or exchange of
Securities of such series, or any Tranche thereof, the amount
or terms thereof;
(u) any exceptions to Section 113, or variation in the
definition of Business Day, with respect to the Securities of
such series, or any Tranche thereof;
(v) any collateral security, assurance or guarantee for
the Securities of such series;
<PAGE>
(w) the non-applicability of Section 608 to the
Securities of such Series or any exceptions or modifications
of Section 608 with respect to the Securities of such Series;
(x) any rights or duties of another Person to assume the
obligations of the Company with respect to the Securities of
such series (whether as joint obligor, primary obligor,
secondary obligor or substitute obligor) and any rights or
duties to discharge and release any obligor with respect to
the Securities of such series or the Indenture to the extent
related to such series; and
(y) any other terms of the Securities of such series, or
any Tranche thereof, not inconsistent with the provisions of
this Indenture.
With respect to Securities of a series subject to a
Periodic Offering, the indenture supplemental hereto or the Board
Resolution which establishes such series, or the Officer's
Certificate pursuant to such supplemental indenture or Board
Resolution, as the case may be, may provide general terms or
parameters for Securities of such series and provide either that
the specific terms of Securities of such series, or any Tranche
thereof, shall be specified in a Company Order or that such terms
shall be determined by the Company or its agents in accordance
with procedures specified in a Company Order as contemplated by
the clause (b) of Section 303.
SECTION 302. DENOMINATIONS.
Unless otherwise provided as contemplated by Section 301
with respect to any series of Securities, or any Tranche thereof,
the Securities of each series shall be issuable in denominations
of $1,000 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Unless otherwise provided as contemplated by Section 301
with respect to any series of Securities, or any Tranche thereof,
the Securities shall be executed on behalf of the Company by an
Authorized Officer and may have the corporate seal of the Company
affixed thereto or reproduced thereon attested by any other
Authorized Officer or by the Secretary or an Assistant Secretary
of the Company. The signature of any or all of these officers on
the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at the time of execution Authorized Officers
or the Secretary or an Assistant Secretary of the Company shall
bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication
and delivery of such Securities or did not hold such offices at
the date of such Securities.
<PAGE>
The Trustee shall authenticate and deliver Securities of
a series, for original issue, at one time or from time to time in
accordance with the Company Order referred to below, upon receipt
by the Trustee of:
(a) the instrument or instruments establishing the form
or forms and terms of such series, as provided in Sections 201
and 301;
(b) a Company Order requesting the authentication and
delivery of such Securities and, to the extent that the terms
of such Securities shall not have been established in an
indenture supplemental hereto or in a Board Resolution, or in
an Officer's Certificate pursuant to a supplemental indenture
or Board Resolution, all as contemplated by Sections 201 and
301, either (i) establishing such terms or (ii) in the case of
Securities of a series subject to a Periodic Offering,
specifying procedures, acceptable to the Trustee, by which
such terms are to be established (which procedures may
provide, to the extent acceptable to the Trustee, for
authentication and delivery pursuant to oral or electronic
instructions from the Company or any agent or agents thereof,
which oral instructions are to be promptly confirmed
electronically or in writing), in either case in accordance
with the instrument or instruments delivered pursuant to
clause (a) above;
(c) the Securities of such series, executed on behalf of
the Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect that:
(i) the form or forms of such Securities have been
duly authorized by the Company and have been established
in conformity with the provisions of this Indenture;
(ii) the terms of such Securities have been duly
authorized by the Company and have been established in
conformity with the provisions of this Indenture; and
(iii) such Securities, when authenticated and
delivered by the Trustee and issued and delivered by the
Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will have been duly
issued under this Indenture and will constitute valid and
legally binding obligations of the Company, entitled to
the benefits provided by this Indenture, and enforceable
in accordance with their terms, subject, as to
enforcement, to laws relating to or affecting generally
the enforcement of creditors' rights, including, without
limitation, bankruptcy and insolvency laws and to general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or
at law);
<PAGE>
provided, however, that, with respect to Securities of a series
subject to a Periodic Offering, the Trustee shall be entitled to
receive such Opinion of Counsel only once at or prior to the time
of the first authentication of such Securities (provided that
such Opinion of Counsel addresses the authentication and delivery
of all Securities of such series) and that in lieu of the
opinions described in clauses (ii) and (iii) above Counsel may
opine that:
(x) when the terms of such Securities shall have
been established pursuant to a Company Order or Orders or
pursuant to such procedures (acceptable to the Trustee)
as may be specified from time to time by a Company Order
or Orders, all as contemplated by and in accordance with
the instrument or instruments delivered pursuant to
clause (a) above, such terms will have been duly
authorized by the Company and will have been established
in conformity with the provisions of this Indenture; and
(y) such Securities, when authenticated and
delivered by the Trustee in accordance with this
Indenture and the Company Order or Orders or specified
procedures referred to in paragraph (x) above and issued
and delivered by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will
have been duly issued under this Indenture and will
constitute valid and legally binding obligations of the
Company, entitled to the benefits provided by the
Indenture, and enforceable in accordance with their
terms, subject, as to enforcement, to laws relating to or
affecting generally the enforcement of creditors' rights,
including, without limitation, bankruptcy and insolvency
laws, and to general principles of equity (regardless of
whether such enforceability is considered in a proceeding
in equity or at law).
With respect to Securities of a series subject to a Peri-
odic Offering, the Trustee may conclusively rely, as to the
authorization by the Company of any of such Securities, the form,
terms thereof and the legality, validity, binding effect and en-
forceability thereof, and compliance of the authentication and
delivery thereof with the terms and conditions of this Indenture,
upon the Opinion of Counsel and other documents delivered
pursuant to Sections 201 and 301 and this Section, as applicable,
at or prior to the time of the first authentication of Securities
of such series unless and until such opinion or other documents
have been superseded or revoked or expire by their terms. In
connection with the authentication and delivery of Securities of
a series subject to a Periodic Offering, the Trustee shall be
entitled to assume that the Company's instructions to
authenticate and deliver such Securities do not violate any
applicable law or any applicable rule, regulation or order of any
Governmental Authority having jurisdiction over the Company.
If the form or terms of the Securities of any series have
been established by or pursuant to a Board Resolution or an
Officer's Certificate as permitted by Sections 201 or 301, the
Trustee shall not be required to authenticate such Securities if
the issuance of such Securities pursuant to this Indenture will
materially or adversely affect the Trustee's own rights, duties
<PAGE>
or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the
Trustee.
Unless otherwise specified as contemplated by Section 301
with respect to any series of Securities, or any Tranche thereof,
each Security shall be dated the date of its authentication.
Unless otherwise specified as contemplated by Section 301
with respect to any series of Securities, no Security shall be
entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security
a certificate of authentication substantially in the form
provided for herein executed by the Trustee or an Authenticating
Agent by manual signature, and such certificate upon any Security
shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and
is entitled to the benefits of this Indenture. Notwithstanding
the foregoing, if any Security shall have been authenticated and
delivered hereunder to the Company, or any Person acting on its
behalf, but shall never have been issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written
statement (which need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel) stating that such Security
has never been issued and sold by the Company, for all purposes
of this Indenture such Security shall be deemed never to have
been authenticated and delivered hereunder and shall never be
entitled to the benefits hereof.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any
series, or any Tranche thereof, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the defi-
nitive Securities in lieu of which they are issued, with such
appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities;
provided, however, that temporary Securities need not recite
specific redemption, sinking fund, conversion or exchange
provisions.
Unless otherwise specified as contemplated by Section 301
with respect to the Securities of any series, or any Tranche
thereof, after the preparation of definitive Securities of such
series or Tranche, the temporary Securities of such series or
Tranche shall be exchangeable, without charge to the Holder
thereof, for definitive Securities of such series or Tranche upon
surrender of such temporary Securities at the office or agency of
the Company maintained pursuant to Section 602 in a Place of
Payment for such Securities. Upon such surrender of temporary
Securities for such exchange, the Company shall, except as
aforesaid, execute and the Trustee shall authenticate and deliver
in exchange therefor definitive Securities of the same series and
Tranche of authorized denominations and of like tenor and
aggregate principal amount.
<PAGE>
Until exchanged in full as hereinabove provided,
temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of
the same series and Tranche and of like tenor authenticated and
delivered hereunder.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE.
The Company shall cause to be kept in each office
designated pursuant to Section 602, with respect to the
Securities of each series, a register (all registers kept in
accordance with this Section being collectively referred to as
the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for
the registration of Securities of such series, or any Tranche
thereof, and the registration of transfer thereof. The Company
shall designate one Person to maintain the Security Register for
the Securities of each series on a consolidated basis, and such
Person is referred to herein, with respect to such series, as the
"Security Registrar." Anything herein to the contrary
notwithstanding, the Company may designate one or more of its
offices as an office in which a register with respect to the
Securities of one or more series shall be maintained, and the
Company may designate itself the Security Registrar with respect
to one or more of such series. The Security Register shall be
open for inspection by the Trustee and the Company at all
reasonable times.
Except as otherwise specified as contemplated by Section
301 with respect to the Securities of any series, or any Tranche
thereof, upon surrender for registration of transfer of any
Security of such series or Tranche at the office or agency of the
Company maintained pursuant to Section 602 in a Place of Payment
for such series or Tranche, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities
of the same series and Tranche, of authorized denominations and
of like tenor and aggregate principal amount.
Except as otherwise specified as contemplated by Section
301 with respect to the Securities of any series, or any Tranche
thereof, any Security of such series or Tranche may be exchanged
at the option of the Holder, for one or more new Securities of
the same series and Tranche, of authorized denominations and of
like tenor and aggregate principal amount, upon surrender of the
Securities to be exchanged at any such office or agency.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities delivered upon any registration of
transfer or exchange of Securities shall be valid obligations of
the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon
such registration of transfer or exchange.
Every Security presented or surrendered for registration
of transfer or for exchange shall (if so required by the Company,
the Trustee or the Security Registrar) be duly endorsed or shall
be accompanied by a written instrument of transfer in form
<PAGE>
satisfactory to the Company, the Trustee or the Security Registrar,
as the case may be, duly executed by the Holder thereof or his
attorney duly authorized in writing.
Unless otherwise specified as contemplated by Section 301
with respect to Securities of any series, or any Tranche thereof,
no service charge shall be made for any registration of transfer
or exchange of Securities, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant
to Section 304, 406 or 1206 not involving any transfer.
The Company shall not be required to execute or to
provide for the registration of transfer of or the exchange of
(a) Securities of any series, or any Tranche thereof, during a
period of 15 days immediately preceding the date notice is to be
given identifying the serial numbers of the Securities of such
series or Tranche called for redemption or (b) any Security so
selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee,
the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same series
and Tranche, and of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trus-
tee (a) evidence to their satisfaction of the ownership of and
the destruction, loss or theft of any Security and (b) such
security or indemnity as may be reasonably required by them to
save each of them and any agent of either of them harmless, then,
in the absence of notice to the Company or the Trustee that such
Security is held by a Person purporting to be the owner of such
Security, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security, a new Security of the same series and Tranche,
and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
Notwithstanding the foregoing, in case any such
mutilated, destroyed, lost or stolen Security has become or is
about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section,
the Company may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in
relation thereto and any other reasonable expenses (including the
fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall
constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security
<PAGE>
shall be at any time enforceable by anyone other than the Holder
of such new Security, and any such new Security shall be entitled
to all the benefits of this Indenture equally and proportionately
with any and all other Securities of such series duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise specified as contemplated by Section 301
with respect to the Securities of any series, or any Tranche
thereof, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or
one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest.
Subject to Section 312, any interest on any Security of
any series which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the
Holder on the related Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in clause (a)
or (b) below:
(a) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Secu-
rities of such series (or their respective Predecessor
Securities) are registered at the close of business on a date
(herein called a "Special Record Date") for the payment of
such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each
Security of such series and the date of the proposed payment,
and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such
deposit on or prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of
the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior
to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense
of the Company, shall promptly cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each
Holder of Securities of such series at the address of such
Holder as it appears in the Security Register, not less than
10 days prior to such Special Record Date. Notice of the pro-
posed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the
<PAGE>
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such
Special Record Date.
(b) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other lawful
manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed,
and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any
other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration
of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name such
Security is registered as the absolute owner of such Security for
the purpose of receiving payment of principal of and premium, if
any, and (subject to Sections 305 and 307) interest, if any, on
such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 309. CANCELLATION BY SECURITY REGISTRAR.
All Securities surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to any
Person other than the Security Registrar, be delivered to the
Security Registrar and, if not theretofore canceled, shall be
promptly canceled by the Security Registrar. The Company may at
any time deliver to the Security Registrar for cancellation any
Securities previously authenticated and delivered hereunder which
the Company may have acquired in any manner whatsoever or which
the Company shall not have issued and sold, and all Securities so
delivered shall be promptly canceled by the Security Registrar.
No Securities shall be authenticated in lieu of or in exchange
for any Securities canceled as provided in this Section, except
as expressly permitted by this Indenture. All canceled
Securities held by the Security Registrar shall be disposed of in
accordance with a Company Order delivered to the Security
Registrar and the Trustee, and the Security Registrar shall
promptly deliver a certificate of disposition to the Trustee and
the Company unless, by a Company Order, similarly delivered, the
Company shall direct that canceled Securities be returned to it.
The Security Registrar shall promptly deliver evidence of any
cancellation of a Security in accordance with this Section 309 to
the Trustee and the Company.
<PAGE>
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section
301 for Securities of any series, or any Tranche thereof,
interest on the Securities of each series shall be computed on
the basis of a 360-day year consisting of twelve 30-day months
and for any period shorter than a full month, on the basis of the
actual number of days elapsed in such period.
SECTION 311. PAYMENT TO BE IN PROPER CURRENCY.
In the case of the Securities of any series, or any
Tranche thereof, denominated in any currency other than Dollars
or in a composite currency (the "Required Currency"), except as
otherwise specified with respect to such Securities as
contemplated by Section 301, the obligation of the Company to
make any payment of the principal thereof, or the premium or
interest thereon, shall not be discharged or satisfied by any
tender by the Company, or recovery by the Trustee, in any
currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the Trustee timely
holding the full amount of the Required Currency then due and
payable. If any such tender or recovery is in a currency other
than the Required Currency, the Trustee may take such actions as
it considers appropriate to exchange such currency for the
Required Currency. The costs and risks of any such exchange,
including without limitation the risks of delay and exchange rate
fluctuation, shall be borne by the Company, the Company shall
remain fully liable for any shortfall or delinquency in the full
amount of Required Currency then due and payable, and in no
circumstances shall the Trustee be liable therefor except in the
case of its negligence or willful misconduct.
SECTION 312. EXTENSION OF INTEREST PAYMENT.
The Company shall have the right at any time, so long as the
Company is not in default in the payment of interest on the
Securities of any series hereunder, to extend interest payment
periods on all Securities of one or more series, if so specified
as contemplated by Section 301 with respect to such Securities
and upon such terms as may be specified as contemplated by
Section 301 with respect to such Securities.
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 401. APPLICABILITY OF ARTICLE.
Securities of any series, or any Tranche thereof, which
are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified
<PAGE>
as contemplated by Section 301 for Securities of such series or
Tranche) in accordance with this Article.
SECTION 402. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities
shall be evidenced by a Board Resolution or an Officer's
Certificate. The Company shall, at least 45 days prior to the
Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee in
writing of such Redemption Date and of the principal amount of
such Securities to be redeemed. In the case of any redemption of
Securities (a) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere
in this Indenture or (b) pursuant to an election of the Company
which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Offi-
cer's Certificate evidencing compliance with such restriction or
condition.
SECTION 403. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series, or any
Tranche thereof, are to be redeemed, the particular Securities to
be redeemed shall be selected by the Trustee from the Outstanding
Securities of such series or Tranche not previously called for
redemption, by such method as shall be provided for any
particular series, or, in the absence of any such provision, by
such method as the Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of portions
(equal to the minimum authorized denomination for Securities of
such series or Tranche or any integral multiple thereof) of the
principal amount of Securities of such series or Tranche of a
denomination larger than the minimum authorized denomination for
Securities of such series or Tranche; provided, however, that if,
as indicated in an Officer's Certificate, the Company shall have
offered to purchase all or any principal amount of the Securities
then Outstanding of any series, or any Tranche thereof, and less
than all of such Securities as to which such offer was made shall
have been tendered to the Company for such purchase, the Trustee,
if so directed by Company Order, shall select for redemption all
or any principal amount of such Securities which have not been so
tendered.
The Trustee shall promptly notify the Company and the
Security Registrar in writing of the Securities selected for
redemption and, in the case of any Securities selected to be
redeemed in part, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed
or to be redeemed only in part, to the portion of the principal
amount of such Securities which has been or is to be redeemed.
<PAGE>
SECTION 404. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner pro-
vided in Section 106 to the Holders of the Securities to be
redeemed not less than 30 nor more than 60 days prior to the
Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price (if known),
(c) if less than all the Securities of any series or
Tranche are to be redeemed, the identification of the
particular Securities to be redeemed and the portion of the
principal amount of any Security to be redeemed in part,
(d) that on the Redemption Date the Redemption Price,
together with accrued interest, if any, to the Redemption
Date, will become due and payable upon each such Security to
be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and accrued
interest, if any, unless it shall have been specified as
contemplated by Section 301 with respect to such Securities
that such surrender shall not be required,
(f) that the redemption is for a sinking or other fund,
if such is the case, and
(g) such other matters as the Company shall deem
desirable or appropriate.
Unless otherwise specified with respect to any Securities
in accordance with Section 301, with respect to any notice of
redemption of Securities at the election of the Company, unless,
upon the giving of such notice, such Securities shall be deemed
to have been paid in accordance with Section 701, such notice may
state that such redemption shall be conditional upon the receipt
by the Paying Agent or Agents for such Securities, on or prior to
the date fixed for such redemption, of money sufficient to pay
the principal of and premium, if any, and interest, if any, on
such Securities and that if such money shall not have been so
received such notice shall be of no force or effect and the
Company shall not be required to redeem such Securities. In the
event that such notice of redemption contains such a condition
and such money is not so received, the redemption shall not be
made and within a reasonable time thereafter notice shall be
given, in the manner in which the notice of redemption was given,
that such money was not so received and such redemption was not
required to be made, and the Paying Agent or Agents for the
Securities otherwise to have been redeemed shall promptly return
to the Holders thereof any of such Securities which had been
surrendered for payment upon such redemption.
<PAGE>
Notice of redemption of Securities to be redeemed at the
election of the Company, and any notice of non-satisfaction of a
condition for redemption as aforesaid, shall be given by the
Company or, at the Company's request, by the Security Registrar
in the name and at the expense of the Company. Notice of
mandatory redemption of Securities shall be given by the Security
Registrar in the name and at the expense of the Company.
SECTION 405. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, and
the conditions, if any, set forth in such notice having been sat-
isfied, the Securities or portions thereof so to be redeemed
shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date
(unless, in the case of an unconditional notice of redemption,
the Company shall default in the payment of the Redemption Price
and accrued interest, if any) such Securities or portions
thereof, if interest-bearing, shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance with
such notice, such Security or portion thereof shall be paid by
the Company at the Redemption Price, together with accrued
interest, if any, to the Redemption Date; provided, however, that
no such surrender shall be a condition to such payment if so
specified as contemplated by Section 301 with respect to such
Security; and provided, further, that except as otherwise
specified as contemplated by Section 301 with respect to such
Security, any installment of interest on any Security the Stated
Maturity of which installment is on or prior to the Redemption
Date shall be payable to the Holder of such Security, or one or
more Predecessor Securities, registered as such at the close of
business on the related Regular Record Date according to the
terms of such Security and subject to the provisions of Section
307.
SECTION 406. SECURITIES REDEEMED IN PART.
Upon the surrender of any Security which is to be
redeemed only in part at a Place of Payment therefor (with, if
the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or
his attorney duly authorized in writing), the Company shall
execute, and the Trustee shall authenticate and deliver to the
Holder of such Security, without service charge, a new Security
or Securities of the same series and Tranche, of any authorized
denomination requested by such Holder and of like tenor and in
aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so
surrendered.
<PAGE>
ARTICLE FIVE
SINKING FUNDS
SECTION 501. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of the Securities of any series,
or any Tranche thereof, except as otherwise specified as
contemplated by Section 301 for Securities of such series or
Tranche.
The minimum amount of any sinking fund payment provided
for by the terms of Securities of any series, or any Tranche
thereof, is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount
provided for by the terms of Securities of any series, or any
Tranche thereof, is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any
series, or any Tranche thereof, the cash amount of any sinking
fund payment may be subject to reduction as provided in Section
502. Each sinking fund payment shall be applied to the
redemption of Securities of the series or Tranche in respect of
which it was made as provided for by the terms of such
Securities.
SECTION 502. SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES.
The Company (a) may deliver to the Trustee Outstanding
Securities (other than any previously called for redemption) of a
series or Tranche in respect of which a mandatory sinking fund
payment is to be made and (b) may apply as a credit Securities of
such series or Tranche which have been redeemed either at the
election of the Company pursuant to the terms of such Securities
or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case
in satisfaction of all or any part of such mandatory sinking fund
payment with respect to the Securities of such series; provided,
however, that no Securities shall be applied in satisfaction of a
mandatory sinking fund payment if such Securities shall have been
previously so applied. Securities so applied shall be received
and credited for such purpose by the Trustee at the Redemption
Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such mandatory
sinking fund payment shall be reduced accordingly.
SECTION 503. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days prior to each sinking fund payment
date for the Securities of any series, or any Tranche thereof,
the Company shall deliver to the Trustee an Officer's Certificate
specifying:
(a) the amount of the next succeeding mandatory sinking
fund payment for such series or Tranche;
<PAGE>
(b) the amount, if any, of the optional sinking fund
payment to be made together with such mandatory sinking fund
payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking fund
payment which is to be satisfied by the payment of cash; and
(e) the portion, if any, of such aggregate sinking fund
payment which is to be satisfied by delivering and crediting
Securities of such series or Tranche pursuant to Section 502
and stating the basis for such credit and that such Securities
have not previously been so credited, and the Company shall
also deliver to the Trustee any Securities to be so delivered.
If the Company shall have not delivered such Officer's
Certificate and, to the extent applicable, all such Securities,
the next succeeding sinking fund payment for such series or
Tranche shall be made entirely in cash in the amount of the man-
datory sinking fund payment. Not less than 30 days before each
such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in
the manner specified in Section 403 and cause notice of the
redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 404. Such
notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Sections
405 and 406.
ARTICLE SIX
COVENANTS
SECTION 601. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company shall pay the principal of and premium, if
any, and interest, if any, on the Securities of each series in
accordance with the terms of such Securities and this Indenture.
SECTION 602. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of Payment for
the Securities of each series, or any Tranche thereof, an office
or agency where payment of such Securities shall be made, where
the registration of transfer or exchange of such Securities may
be effected and where notices and demands to or upon the Company
in respect of such Securities and this Indenture may be served.
The Company shall give prompt written notice to the Trustee of
the location, and any change in the location, of each such office
or agency and prompt notice to the Holders of any such change in
the manner specified in Section 106. If at any time the Company
shall fail to maintain any such required office or agency in
<PAGE>
respect of Securities of any series, or any Tranche thereof, or
shall fail to furnish the Trustee with the address thereof,
payment of such Securities shall be made, registration of
transfer or exchange thereof may be effected and notices and
demands in respect thereof may be served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the
Trustee as its agent for all such purposes in any such event.
The Company may also from time to time designate one or
more other offices or agencies with respect to the Securities of
one or more series, or any Tranche thereof, for any or all of the
foregoing purposes and may from time to time rescind such
designations; provided, however, that, unless otherwise specified
as contemplated by Section 301 with respect to the Securities of
such series or Tranche, no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain
an office or agency for such purposes in each Place of Payment
for such Securities in accordance with the requirements set forth
above. The Company shall give prompt written notice to the
Trustee, and prompt notice to the Holders in the manner specified
in Section 106, of any such designation or rescission and of any
change in the location of any such other office or agency.
Anything herein to the contrary notwithstanding, any
office or agency required by this Section may be maintained at an
office of the Company, in which event the Company shall perform
all functions to be performed at such office or agency.
SECTION 603. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying
Agent with respect to the Securities of any series, or any
Tranche thereof, it shall, on or before each due date of the
principal of and premium, if any, and interest, if any, on any of
such Securities, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the
principal and premium or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided. The Company shall promptly notify the Trustee of any
failure by the Company (or any other obligor on such Securities)
to make any payment of principal of or premium, if any, or
interest, if any, on such Securities.
Whenever the Company shall have one or more Paying Agents
for the Securities of any series, or any Tranche thereof, it
shall, on or before each due date of the principal of and
premium, if any, and interest, if any, on such Securities,
deposit with such Paying Agents sums sufficient (without
duplication) to pay the principal and premium or interest so
becoming due, such sums to be held in trust for the benefit of
the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company shall
promptly notify the Trustee of any failure by it so to act.
The Company shall cause each Paying Agent for the
Securities of any series, or any Tranche thereof, other than the
Company or the Trustee, to execute and deliver to the Trustee an
<PAGE>
instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such
Paying Agent shall:
(a) hold all sums held by it for the payment of the
principal of and premium, if any, or interest, if any, on such
Securities in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any failure by the
Company (or any other obligor upon such Securities) to make
any payment of principal of or premium, if any, or interest,
if any, on such Securities; and
(c) at any time during the continuance of any such
failure, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying
Agent and furnish to the Trustee such information as it
possesses regarding the names and addresses of the Persons
entitled to such sums.
The Company may at any time pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held
by the Trustee upon the same trusts as those upon which such sums
were held by the Company or such Paying Agent and, if so stated
in a Company Order delivered to the Trustee, in accordance with
the provisions of Article Seven; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent,
or then held by the Company, in trust for the payment of the
principal of and premium, if any, or interest, if any, on any
Security and remaining unclaimed for two years after such
principal and premium, if any, or interest has become due and
payable shall be paid to the Company on Company Request, or, if
then held by the Company, shall be discharged from such trust;
and, upon such payment or discharge, the Holder of such Security
shall, as an unsecured general creditor and not as a Holder of an
Outstanding Security, look only to the Company for payment of the
amount so due and payable and remaining unpaid, and all liability
of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such payment to
the Company, may at the expense of the Company cause to be
mailed, on one occasion only, notice to such Holder that such
money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such
mailing, any unclaimed balance of such money then remaining will
be paid to the Company.
<PAGE>
SECTION 604. CORPORATE EXISTENCE.
Subject to the rights of the Company under Article
Eleven, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect its
corporate existence.
SECTION 605. MAINTENANCE OF PROPERTIES.
The Company shall cause (or, with respect to property
owned in common with others, make reasonable effort to cause) all
its properties used or useful in the conduct of its business to
be maintained and kept in good condition, repair and working
order and shall cause (or, with respect to property owned in
common with others, make reasonable effort to cause) to be made
all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as, in the judgment of the Company, may
be necessary so that the business carried on in connection
therewith may be properly conducted; provided, however, that
nothing in this Section shall prevent the Company from
discontinuing, or causing the discontinuance of, the operation
and maintenance of any of its properties if such discontinuance
is, in the judgment of the Company, desirable in the conduct of
its business.
SECTION 606. ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
Not later than 1 in each year, commencing 1,
---- ----
, the Company shall deliver to the Trustee an Officer's
----
Certificate which need not comply with Section 102, executed by
the principal executive officer, the principal financial officer
or the principal accounting officer of the Company, as to such
officer's knowledge of the Company's compliance with all
conditions and covenants under this Indenture, such compliance to
be determined without regard to any period of grace or
requirement of notice under this Indenture.
SECTION 607. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply
with any term, provision or condition set forth in (a) Section
602 or any additional covenant or restriction specified with
respect to the Securities of any series, or any Tranche thereof,
as contemplated by Section 301, if before the time for such
compliance the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all series and Tranches
with respect to which compliance with Section 602 or such
additional covenant or restriction is to be omitted, considered
as one class, shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with
such term, provision or condition and (b) Section 604, 605 or
Article Eleven if before the time for such compliance the Holders
of a majority in principal amount of Securities Outstanding under
this Indenture shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with
such term, provision or condition; but, in the case of (a) or
(b), no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of
the Company and the duties of the Trustee in respect of any such
<PAGE>
term, provision or condition shall remain in full force and
effect.
SECTION 608. LIMITATION ON LIENS.
(a) Except as otherwise specified as contemplated by
Section 301 for Securities of any series, so long as any
Securities of any series are Outstanding, the Company will not
pledge, mortgage, hypothecate or grant a security interest in, or
permit any mortgage, pledge, security interest or other lien
upon, any capital stock of any Subsidiary now or hereafter owned
by the Company, to secure any Indebtedness (hereinafter defined)
without making effective provision whereby the Outstanding
Securities shall (so long as such other Indebtedness shall be so
secured) be equally and ratably secured with any and all such
other Indebtedness and any other indebtedness similarly entitled
to be equally and ratably secured; provided, however, that this
restriction shall not apply to nor prevent the creation or
existence of:
(1) any mortgage, pledge, security interest, lien or
encumbrance upon any such capital stock created at the time of
the acquisition of such capital stock by the Company or within
one year after such time to secure all or a portion of the
purchase price for such capital stock;
(2) any mortgage, pledge, security interest, lien or
encumbrance upon any such capital stock existing thereon at
the time of the acquisition thereof by the Company (whether or
not the obligations secured thereby are assumed by the
Company); or
(3) any extension, renewal of refunding of any mortgage,
pledge, security interest, lien or encumbrance permitted by
Subsection (1) or (2) above on capital stock of any Subsidiary
theretofore subject thereto (or substantially the same capital
stock) or any portion thereof.
(4) any judgment, levy, execution, attachment or other
similar lien arising in connection with court proceedings,
provided that either
(i) the execution or enforcement of each such lien
is effectively stayed within 30 days after entry of the
corresponding judgment (or the corresponding judgment has
been discharged within such 30 day period) and the claims
secured thereby are being contested in good faith by
appropriate proceedings timely commenced and diligently
prosecuted;
(ii) the payment of each such lien is covered in
full by insurance and the insurance company has not
denied or contested coverage thereof; or
(iii) so long as each such lien is adequately
bonded, any appropriate legal proceedings that may have
been duly initiated for the review of the corresponding
<PAGE>
judgment, decree or order shall not have been fully
terminated or the period within which such proceedings
may be initiated shall not have expired.
For purposes of this Section 608, "Indebtedness" means
all indebtedness, whether or not represented by bonds,
debentures, notes or other securities, created or assumed by the
Company for the repayment of money borrowed. All indebtedness
for money borrowed secured by a lien upon property owned by the
Company and upon which indebtedness for money borrowed the
Company customarily pays interest, although the Company has not
assumed or become liable for the payment of such indebtedness for
money borrowed, shall for purposes of this Section 608 be deemed
to be Indebtedness of the Company. All indebtedness of others
for money borrowed which is guaranteed as to payment of principal
by the Company or in effect guaranteed by the Company through a
contingent agreement to purchase such indebtedness for money
borrowed shall for purposes of this Section 608 be deemed to be
Indebtedness of the Company, but no other contingent obligation
of the Company in respect of indebtedness for money borrowed or
other obligations incurred by others shall for purposes of this
Section 608 be deemed to be Indebtedness of the Company.
In case the Company shall propose to pledge, mortgage,
hypothecate or grant a security interest in any capital stock of
any Subsidiary owned by the Company to secure any Indebtedness,
other than as permitted by Subsections (a)(1) to (a)(3),
inclusive, of this Section, the Company will prior thereto give
written notice thereof to the Trustee, and the Company will prior
to or simultaneously with such pledge, mortgage, hypothecation or
grant of security interest, by supplemental indenture executed to
the Trustee (or to the extent legally necessary to another
trustee or an additional or separate trustee), in form
satisfactory to the Trustee, effectively secure (for so long as
such other Indebtedness shall be so secured) all the Securities
equally and ratably with such Indebtedness and with any other
indebtedness for money borrowed similarly entitled to be equally
and ratably secured.
(b) Except as otherwise specified as contemplated by
Section 301 for Securities of any series, the provisions of
Subsection (a) of this Section 608 shall not apply in the event
that the Company or any Subsidiary shall pledge, mortgage,
hypothecate or grant a security interest in or other lien upon
any capital stock of any Subsidiary now or hereafter owned by the
Company to secure any Indebtedness which would otherwise be
subject to the foregoing restriction up to an aggregate amount
which, together with all other Indebtedness (other than
mortgages, pledges, security interests, liens or encumbrances
permitted by Subsection (a) of this Section 608) which would
otherwise be subject to the foregoing restriction, does not at
the time exceed 5% of Consolidated Capitalization.
For purposes of this Section 608:
(1) The term "Consolidated Capitalization" means the sum
obtained by adding (i) Consolidated Shareholders' Equity, (ii)
Consolidated Indebtedness for money borrowed (exclusive of any
thereof which is due and payable within one year of the date
<PAGE>
such sum is determined) and, without duplication, (iii) any
preference or preferred stock of the Company or any
Consolidated Subsidiary which is subject to mandatory
redemption or sinking fund provisions.
(2) The term "Consolidated Shareholders' Equity" means
the total Assets of the Company and its Consolidated
Subsidiaries less all liabilities of the Company and its
Consolidated Subsidiaries. As used in this definition,
"liabilities" means all obligations which would, in accordance
with generally accepted accounting principles, be classified
on a balance sheet as liabilities, including without
limitation, (i) indebtedness secured by property of the
Company or any of its Consolidated Subsidiaries whether or not
the Company or such Consolidated Subsidiary is liable for the
payment thereof unless, in the case that the Company or such
Consolidated Subsidiary is not so liable, such property has
not been included among the Assets of the Company or such
Consolidated Subsidiary on such balance sheet, (ii) deferred
liabilities, (iii) indebtedness of the Company or any of its
Consolidated Subsidiaries that is expressly subordinated in
right and priority of payment to other liabilities of the
Company or such Consolidated Subsidiary. As used in this
definition, "liabilities" includes preference or preferred
stock of the Company or any Consolidated Subsidiary only to
the extent of any such preference or preferred stock that is
subject to mandatory redemption or sinking fund provisions.
(3) The term "Consolidated Subsidiary" means at any date
any Subsidiary the financial statements of which under
generally accepted accounting principles would be consolidated
with those of the Company in its consolidated financial
statements as of such date.
(4) The "Assets" of any Person means the whole or any
part of its business, property, assets, cash and receivables.
(5) The term "Consolidated Indebtedness" means total
indebtedness as shown on the consolidated balance sheet of the
Company and its Consolidated Subsidiaries.
ARTICLE SEVEN
SATISFACTION AND DISCHARGE
SECTION 701. SATISFACTION AND DISCHARGE OF SECURITIES.
Any Security or Securities, or any portion of the
principal amount thereof, shall be deemed to have been paid for
all purposes of this Indenture, and the entire indebtedness of
the Company in respect thereof shall be deemed to have been
<PAGE>
satisfied and discharged, if there shall have been irrevocably
deposited with the Trustee or any Paying Agent (other than the
Company), in trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the Maturity
of such Securities or portions thereof, Eligible Obligations,
which shall not contain provisions permitting the redemption
or other prepayment thereof at the option of the issuer
thereof, the principal of and the interest on which when due,
without any regard to reinvestment thereof, will provide
moneys which, together with the money, if any, deposited with
or held by the Trustee or such Paying Agent, shall be
sufficient, or
(c) a combination of (a) or (b) which shall be
sufficient,
to pay when due the principal of and premium, if any, and
interest, if any, due and to become due on such Securities or
portions thereof on or prior to Maturity; provided, however, that
in the case of the provision for payment or redemption of less
than all the Securities of any series or Tranche, such Securities
or portions thereof shall have been selected by the Trustee as
provided herein and, in the case of a redemption, the notice
requisite to the validity of such redemption shall have been
given or irrevocable authority shall have been given by the
Company to the Trustee to give such notice, under arrangements
satisfactory to the Trustee; and provided, further, that the
Company shall have delivered to the Trustee and such Paying
Agent:
(x) if such deposit shall have been made prior to
the Maturity of such Securities, a Company Order stating
that the money and Eligible Obligations deposited in
accordance with this Section shall be held in trust, as
provided in Section 703; and
(y) if Eligible Obligations shall have been
deposited, an Opinion of Counsel that the obligations so
deposited constitute Eligible Obligations and do not
contain provisions permitting the redemption or other
prepayment at the option of the issuer thereof, and an
opinion of an independent public accountant of nationally
recognized standing, selected by the Company, to the
effect that the requirements set forth in clause (b)
above have been satisfied; and
(z) if such deposit shall have been made prior to
the Maturity of such Securities, an Officer's Certificate
stating the Company's intention that, upon delivery of
such Officer's Certificate, its indebtedness in respect
of such Securities or portions thereof will have been
satisfied and discharged as contemplated in this Section.
Upon the deposit of money or Eligible Obligations, or
both, in accordance with this Section, together with the
documents required by clauses (x), (y) and (z) above, the Trustee
<PAGE>
shall, upon receipt of a Company Request, acknowledge in writing
that the Security or Securities or portions thereof with respect
to which such deposit was made are deemed to have been paid for
all purposes of this Indenture and that the entire indebtedness
of the Company in respect thereof has been satisfied and
discharged as contemplated in this Section. In the event that
all of the conditions set forth in the preceding paragraph shall
have been satisfied in respect of any Securities or portions
thereof except that, for any reason, the Officer's Certificate
specified in clause (z) shall not have been delivered, such
Securities or portions thereof shall nevertheless be deemed to
have been paid for all purposes of this Indenture, and the
Holders of such Securities or portions thereof shall nevertheless
be no longer entitled to the benefits of this Indenture or of any
of the covenants of the Company under Article Six (except the
covenants contained in Sections 602 and 603) or any other
covenants made in respect of such Securities or portions thereof
as contemplated by Section 301, but the indebtedness of the
Company in respect of such Securities or portions thereof shall
not be deemed to have been satisfied and discharged prior to
Maturity for any other purpose, and the Holders of such
Securities or portions thereof shall continue to be entitled to
look to the Company for payment of the indebtedness represented
thereby; and, upon Company Request, the Trustee shall acknowledge
in writing that such Securities or portions thereof are deemed to
have been paid for all purposes of this Indenture.
If payment at Stated Maturity of less than all of the
Securities of any series, or any Tranche thereof, is to be
provided for in the manner and with the effect provided in this
Section, the Security Registrar shall select such Securities, or
portions of principal amount thereof, in the manner specified by
Section 403 for selection for redemption of less than all the
Securities of a series or Tranche.
In the event that Securities which shall be deemed to
have been paid for purposes of this Indenture, and, if such is
the case, in respect of which the Company's indebtedness shall
have been satisfied and discharged, all as provided in this
Section do not mature and are not to be redeemed within the 60
day period commencing with the date of the deposit of moneys or
Eligible Obligations, as aforesaid, the Company shall, as
promptly as practicable, give a notice, in the same manner as a
notice of redemption with respect to such Securities, to the
Holders of such Securities to the effect that such deposit has
been made and the effect thereof.
Notwithstanding that any Securities shall be deemed to
have been paid for purposes of this Indenture, as aforesaid, the
obligations of the Company and the Trustee in respect of such
Securities under Sections 304, 305, 306, 404, 503 (as to notice
of redemption), 602, 603, 907 and 915 and this Article Seven
shall survive.
The Company shall pay, and shall indemnify the Trustee or
any Paying Agent with which Eligible Obligations shall have been
deposited as provided in this Section against, any tax, fee or
other charge imposed on or assessed against such Eligible
Obligations or the principal or interest received in respect of
such Eligible Obligations, including, but not limited to, any
such tax payable by any entity deemed, for tax purposes, to have
been created as a result of such deposit.
<PAGE>
Anything herein to the contrary notwithstanding, (a) if,
at any time after a Security would be deemed to have been paid
for purposes of this Indenture, and, if such is the case, the
Company's indebtedness in respect thereof would be deemed to have
been satisfied or discharged, pursuant to this Section (without
regard to the provisions of this paragraph), the Trustee or any
Paying Agent, as the case may be, shall be required to return the
money or Eligible Obligations, or combination thereof, deposited
with it as aforesaid to the Company or its representative under
any applicable Federal or State bankruptcy, insolvency or other
similar law, such Security shall thereupon be deemed
retroactively not to have been paid and any satisfaction and
discharge of the Company's indebtedness in respect thereof shall
retroactively be deemed not to have been effected, and such
Security shall be deemed to remain Outstanding and (b) any
satisfaction and discharge of the Company's indebtedness in
respect of any Security shall be subject to the provisions of the
last paragraph of Section 603.
SECTION 702. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of
further effect (except as hereinafter expressly provided), and
the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this
Indenture, when
(a) no Securities remain Outstanding hereunder; and
(b) the Company has paid or caused to be paid all other
sums payable hereunder by the Company;
provided, however, that if, in accordance with the last paragraph
of Section 701, any Security, previously deemed to have been paid
for purposes of this Indenture, shall be deemed retroactively not
to have been so paid, this Indenture shall thereupon be deemed
retroactively not to have been satisfied and discharged, as
aforesaid, and to remain in full force and effect, and the
Company shall execute and deliver such instruments as the Trustee
shall reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge of this
Indenture as aforesaid, the obligations of the Company and the
Trustee under Sections 304, 305, 306, 404, 503 (as to notice of
redemption), 602, 603, 907 and 915 and this Article Seven shall
survive.
Upon satisfaction and discharge of this Indenture as pro-
vided in this Section, the Trustee shall assign, transfer and
turn over to the Company, subject to the lien provided by Section
907, any and all money, securities and other property then held
by the Trustee for the benefit of the Holders of the Securities
other than money and Eligible Obligations held by the Trustee
pursuant to Section 703.
<PAGE>
SECTION 703. APPLICATION OF TRUST MONEY.
Neither the Eligible Obligations nor the money deposited
pursuant to Section 701, nor the principal or interest payments
on any such Eligible Obligations, shall be withdrawn or used for
any purpose other than, and shall be held in trust for, the
payment of the principal of and premium, if any, and interest, if
any, on the Securities or portions of principal amount thereof in
respect of which such deposit was made, all subject, however, to
the provisions of Section 603; provided, however, that, so long
as there shall not have occurred and be continuing an Event of
Default, any cash received from such principal or interest
payments on such Eligible Obligations, if not then needed for
such purpose, shall, to the extent practicable and upon Company
Request, be invested in Eligible Obligations of the type
described in clause (b) in the first paragraph of Section 701
maturing at such times and in such amounts as shall be
sufficient, together with any other moneys and the principal of
and interest on any other Eligible Obligations then held by the
Trustee, to pay when due the principal of and premium, if any,
and interest, if any, due and to become due on such Securities or
portions thereof on and prior to the Maturity thereof, and inter-
est earned from such reinvestment shall be paid over to the
Company as received, free and clear of any trust, lien or pledge
under this Indenture except the lien provided by Section 907; and
provided, further, that, so long as there shall not have occurred
and be continuing an Event of Default, any moneys held in
accordance with this Section on the Maturity of all such
Securities in excess of the amount required to pay the principal
of and premium, if any, and interest, if any, then due on such
Securities shall be paid over to the Company free and clear of
any trust, lien or pledge under this Indenture except the lien
provided by Section 907; and provided, further, that if an Event
of Default shall have occurred and be continuing, moneys to be
paid over to the Company pursuant to this Section shall be held
until such Event of Default shall have been waived or cured.
ARTICLE EIGHT
EVENTS OF DEFAULT; REMEDIES
SECTION 801. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events:
(a) failure to pay interest, if any, on any Security of
such series within 30 days after the same becomes due and pay-
able; provided, however, that a valid extension of the
interest payment period by the Company as contemplated in
Section 312 of this Indenture shall not constitute a failure
to pay interest for this purpose; or
(b) failure to pay the principal of or premium, if any,
on any Security of such series at its Maturity; or
<PAGE>
(c) failure to perform or breach of any covenant or
warranty of the Company in this Indenture (other than a
covenant or warranty a default in the performance of which or
breach of which is elsewhere in this Section specifically
dealt with or which has expressly been included in this
Indenture solely for the benefit of one or more series of
Securities other than such series) for a period of 90 days
after there has been given, by registered or certified mail,
to the Company by the Trustee, or to the Company and the
Trustee by the Holders of at least 33% in principal amount of
the Outstanding Securities of such series, a written notice
specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder, unless the Trustee, or the Trustee and the Holders
of a principal amount of Securities of such series not less
than the principal amount of Securities the Holders of which
gave such notice, as the case may be, shall agree in writing
to an extension of such period prior to its expiration;
provided, however, that the Trustee, or the Trustee and the
Holders of such principal amount of Securities of such series,
as the case may be, shall be deemed to have agreed to an
extension of such period if corrective action is initiated by
the Company within such period and is being diligently
pursued; or
(d) the entry by a court having jurisdiction in the
premises of (1) a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any appli-
cable Federal or State bankruptcy, insolvency, reorganization
or other similar law or (2) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly
filed a petition by one or more Persons other than the Company
seeking reorganization, arrangement, adjustment or composition
of or in respect of the Company under any applicable Federal
or State law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official for
the Company or for any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and any
such decree or order for relief or any such other decree or
order shall have remained unstayed and in effect for a period
of 90 consecutive days; or
(e) the commencement by the Company of a voluntary case
or proceeding under any applicable Federal or State bank-
ruptcy, insolvency, reorganization or other similar law or of
any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree or
order for relief in respect of the Company in a case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company or of
any substantial part of its property, or the making by it of
an assignment for the benefit of creditors, or the admission
by it in writing of its inability to pay its debts generally
as they become due, or the authorization of such action by the
Board of Directors; or
<PAGE>
(f) any other Event of Default specified with respect to
Securities of such series.
SECTION 802. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default due to the default in payment of
principal of, or interest on, any series of Securities or due to
the default in the performance or breach of any other covenant or
warranty of the Company applicable to the Securities of such
series but not applicable to all Outstanding Securities shall
have occurred and be continuing, either the Trustee or the
Holders of not less than 33% in principal amount of the
Securities of such series may then declare the principal amount
(or, if any of the Securities of such series are Discount
Securities, such portion of the principal amount as may be
specified in the terms thereof as contemplated by Section 301) of
all Securities of such series and interest accrued thereon to be
due and payable immediately. If an Event of Default due to
default in the performance of any other of the covenants or
agreements herein applicable to all Outstanding Securities or an
Event of Default specified in Section 801(d) or (e) shall have
occurred and be continuing, either the Trustee or the Holders of
not less than 33% in principal amount of all Securities then
Outstanding (considered as one class), and not the Holders of the
Securities of any one of such series, may declare the principal
of all Securities and interest accrued thereon to be due and
payable immediately. As a consequence of each such declaration
(herein referred to as a declaration of acceleration) with
respect to Securities of any series, the principal amount (or
portion thereof in the case of Discount Securities) of such
Securities and interest accrued thereon shall become due and
payable immediately.
At any time after such a declaration of acceleration with
respect to Securities of any series shall have been made and
before a judgment or decree for payment of the money due shall
have been obtained by the Trustee as hereinafter in this Article
provided, the Event or Events of Default giving rise to such
declaration of acceleration shall, without further act, be deemed
to have been waived, and such declaration and its consequences
shall, without further act, be deemed to have been rescinded and
annulled, if
(a) the Company shall have paid or deposited with the
Trustee a sum sufficient to pay
(1) all overdue interest on all Securities of such
series;
(2) the principal of and premium, if any, on any
Securities of such series which have become due otherwise
than by such declaration of acceleration and interest
thereon at the rate or rates prescribed therefor in such
Securities;
(3) to the extent that payment of such interest is
lawful, interest upon overdue interest, if any, at the
rate or rates prescribed therefor in such Securities;
(4) all amounts due to the Trustee under Section
907;
and
<PAGE>
(b) any other Event or Events of Default with respect to
Securities of such series, other than the nonpayment of the
principal of Securities of such series which shall have become
due solely by such declaration of acceleration, shall have
been cured or waived as provided in Section 813.
No such rescission shall affect any subsequent Event of Default
or impair any right consequent thereon.
SECTION 803. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.
If an Event of Default described in clause (a) or (b) of
Section 801 shall have occurred and be continuing, the Company
shall, upon demand of the Trustee, pay to it, for the benefit of
the Holders of the Securities of the series with respect to which
such Event of Default shall have occurred, the whole amount then
due and payable on such Securities for principal and premium, if
any, and interest, if any, and, to the extent permitted by law,
interest on any overdue principal and interest, at the rate or
rates prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover any
amounts due to the Trustee under Section 907.
If the Company shall fail to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of
an express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, may prosecute such
proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and
collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any
other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any
series shall have occurred and be continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the
rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
SECTION 804. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company
or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities shall
then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made
<PAGE>
any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in
such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
principal, premium, if any, and interest, if any, owing and
unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for
amounts due to the Trustee under Section 907) and of the
Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute
the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders,
to pay to the Trustee any amounts due it under Section 907.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf
of any Holder any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or the rights of any
Holder thereof or to authorize the Trustee to vote in respect of
the claim of any Holder in any such proceeding.
SECTION 805. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES.
All rights of action and claims under this Indenture or
the Securities may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the production
thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of
the Holders in respect of which such judgment has been recovered.
SECTION 806. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Arti-
cle shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such
money on account of principal or premium, if any, or interest, if
any, upon presentation of the Securities in respect of which or
for the benefit of which such money shall have been collected and
the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 907;
<PAGE>
SECOND: To the payment of the amounts then due and un-
paid upon the Securities for principal of and premium, if any,
and interest, if any, in respect of which or for the benefit
of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts
due and payable on such Securities for principal, premium, if
any, and interest, if any, respectively; and
THIRD: To the payment of the remainder, if any, to the
Company or to whomsoever may be lawfully entitled to receive
the same or as a court of competent jurisdiction may direct.
SECTION 807. LIMITATION ON SUITS.
No Holder shall have any right to institute any proceed-
ing, judicial or otherwise, with respect to this Indenture, or
for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(a) such Holder shall have previously given written
notice to the Trustee of a continuing Event of Default with
respect to the Securities of such series;
(b) the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all series in respect
of which an Event of Default shall have occurred and be
continuing, considered as one class, shall have made written
request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders shall have offered to the
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity shall have failed to
institute any such proceeding; and
(e) no direction inconsistent with such written request
shall have been given to the Trustee during such 60-day period
by the Holders of a majority in aggregate principal amount of
the Outstanding Securities of all series in respect of which
an Event of Default shall have occurred and be continuing,
considered as one class;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue of,
or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other of such Holders or
to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal
and ratable benefit of all of such Holders.
<PAGE>
SECTION 808. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture,
the Holder of any Security shall have the right, which is
absolute and unconditional, to receive payment of the principal
of and premium, if any, and (subject to Sections 307 and 312)
interest, if any, on such Security on the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemp-
tion, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
SECTION 809. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture
and such proceeding shall have been discontinued or abandoned for
any reason, or shall have been determined adversely to the
Trustee or to such Holder, then and in every such case, subject
to any determination in such proceeding, the Company, and Trustee
and such Holder shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and
remedies of the Trustee and such Holder shall continue as though
no such proceeding had been instituted.
SECTION 810. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 811. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to
exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every
right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 812. CONTROL BY HOLDERS OF SECURITIES.
If an Event of Default shall have occurred and be
continuing in respect of a series of Securities, the Holders of a
majority in principal amount of the Outstanding Securities of
such series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the
<PAGE>
Trustee, with respect to the Securities of such series; provided,
however, that if an Event of Default shall have occurred and be
continuing with respect to more than one series of Securities,
the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all such series, considered as one
class, shall have the right to make such direction, and not the
Holders of the Securities of any one of such series; and
provided, further, that such direction shall not be in conflict
with any rule of law or with this Indenture. The Trustee may
take any other action, deemed proper by the Trustee, which is not
inconsistent with any such direction. Before proceeding to
exercise any right or power hereunder at the direction of such
Holders, the Trustee shall be entitled to receive from such
Holders reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in
compliance with any such direction.
SECTION 813. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal
amount of the Outstanding Securities of any series may on behalf
of the Holders of all the Securities of such series waive any
past default hereunder with respect to such series and its
consequences, except a default
(a) in the payment of the principal of or premium, if
any, or interest, if any, on any Security of such series, or
(b) in respect of a covenant or provision hereof which
under Section 1202 cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such
series affected.
Upon any such waiver, such default shall cease to exist,
and any and all Events of Default arising therefrom shall be
deemed to have been cured, for every purpose of this Indenture;
but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 814. UNDERTAKING FOR COSTS.
The Company and the Trustee agree, and each Holder by his
acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of
any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reason-
able 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 Company, to
any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than
10% in aggregate principal amount of the Outstanding Securities
of all series in respect of which such suit may be brought,
considered as one class, or to any suit instituted by any Holder
for the enforcement of the payment of the principal of or
premium, if any, or interest, if any, on any Security on or after
<PAGE>
the Stated Maturity or Maturities expressed in such Security (or,
in the case of redemption, on or after the Redemption Date).
SECTION 815. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
ARTICLE NINE
THE TRUSTEE
SECTION 901. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The Trustee shall have and be subject to all the
duties and responsibilities specified with respect to an
indenture trustee in the Trust Indenture Act and no implied
covenants or obligations shall be read into this Indenture
against the Trustee. For purposes of Sections 315(a) and
315(c) of the Trust Indenture Act, the term "default" is
hereby defined as an Event of Default which has occurred and
is continuing.
(b) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(c) Notwithstanding anything contained in this Indenture
to the contrary, the duties and responsibilities of the
Trustee under this Indenture shall be subject to the
protections, exculpations and limitations on liability
afforded to the Trustee under the provisions of the Trust
Indenture Act.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section.
<PAGE>
SECTION 902. NOTICE OF DEFAULTS.
The Trustee shall give notice of any default hereunder
with respect to the Securities of any series to the Holders of
Securities of such series in the manner and to the extent
required to do so by the Trust Indenture Act, unless such default
shall have been cured or waived; provided, however, that in the
case of any default of the character specified in Section 801(c),
no such notice to Holders shall be given until at least 45 days
after the occurrence thereof. For the purpose of this Section,
the term "default" means any event which is, or after notice or
lapse of time, or both, would become, an Event of Default.
SECTION 903. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 901 and to the
applicable provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting in good faith upon any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper
or document reasonably believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or
Company Order, or as otherwise expressly provided herein, and
any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at
the request or direction of any Holder pursuant to this
Indenture, unless such Holder shall have offered to the
Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
<PAGE>
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper
or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as
it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall (subject to
applicable legal requirements) be entitled to examine, during
normal business hours, the books, records and premises of the
Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or
by or through agents or attorneys, and the Trustee shall not
be responsible for any misconduct or negligence on the part of
any agent or attorney appointed with due care by it hereunder;
and
(h) the Trustee shall not be charged with knowledge of
any default or Event of Default, as the case may be, with
respect to the Securities of any series for which it is acting
as Trustee unless either (1) a Responsible Officer of the
Trustee shall have actual knowledge of the default or Event of
Default, as the case may be, or (2) written notice of such
default or Event of Default, as the case may be, shall have
been given to the Trustee by the Company, any other obligor on
such Securities or by any Holder of such Securities.
SECTION 904. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The recitals contained herein and in the Securities (ex-
cept the Trustee's certificates of authentication) shall be taken
as the statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes responsibility for their correct-
ness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the
use or application by the Company of Securities or the proceeds
thereof.
SECTION 905. MAY HOLD SECURITIES.
Each of the Trustee, any Authenticating Agent, any Paying
Agent, any Security Registrar or any other agent of the Company,
in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 908 and 913, may
otherwise deal with the Company with the same rights it would
have if it were not the Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
SECTION 906. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be
segregated from other funds, except to the extent required by
law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as expressly provided
herein or otherwise agreed with, and for the sole benefit of, the
Company.
<PAGE>
SECTION 907. COMPENSATION AND REIMBURSEMENT.
The Company shall
(a) pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein,
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances reasonably incurred or
made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except
to the extent that any such expense, disbursement or advance
may be attributable to the Trustee's negligence, wilful
misconduct or bad faith; and
(c) indemnify the Trustee for, and hold it harmless from
and against, any loss, liability or expense reasonably
incurred by it arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder
or the performance of its duties hereunder, including the
reasonable costs and expenses of defending itself against any
claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except
to the extent any such loss, liability or expense may be
attributable to its negligence, wilful misconduct or bad
faith.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a lien prior
to the Securities upon all property and funds held or collected
by the Trustee as such other than property and funds held in
trust under Section 703 (except as otherwise provided in Section
703). "Trustee" for purposes of this Section shall include any
predecessor Trustee; provided, however, that the negligence,
wilful misconduct or bad faith of any Trustee hereunder shall not
affect the rights of any other Trustee hereunder.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 801(d)
or Section 801(e), the expenses (including the reasonable charges
and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of administration
under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The provisions of this Section 907 shall survive the
termination of this Indenture.
SECTION 908. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee shall have or acquire any conflicting
interest within the meaning of the Trust Indenture Act, it shall
either eliminate such conflicting interest or resign to the
<PAGE>
extent, in the manner and with the effect, and subject to the
conditions, provided in the Trust Indenture Act and this
Indenture.
SECTION 909. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which
shall be
(a) a corporation organized and doing business under the
laws of the United States, any State or Territory thereof or
the District of Columbia, authorized under such laws to
exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000 and subject to supervision or
examination by Federal or State authority, or
(b) if and to the extent permitted by the Commission by
rule, regulation or order upon application, a corporation or
other Person organized and doing business under the laws of a
foreign government, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus
of at least $50,000,000 or the Dollar equivalent of the
applicable foreign currency and subject to supervision or
examination by authority of such foreign government or a
political subdivision thereof substantially equivalent to
supervision or examination applicable to United States
institutional trustees,
and, in either case, qualified and eligible under this Article
and the Trust Indenture Act. If such corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of such supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter
specified in this Article.
SECTION 910. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article
shall become effective until the acceptance of appointment by
the successor Trustee in accordance with the applicable
requirements of Section 911.
(b) The Trustee may resign at any time with respect to
the Securities of one or more series by giving written notice
thereof to the Company. If the instrument of acceptance by a
successor Trustee required by Section 911 shall not have been
delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with respect
to the Securities of any series by Act of the Holders of a
majority in principal amount of the Outstanding Securities of
such series delivered to the Trustee and to the Company.
<PAGE>
(d) If at any time:
(1) the Trustee shall fail to comply with Section
908 after written request therefor by the Company or by
any Holder who has been a bona fide Holder for at least
six months, or
(2) the Trustee shall cease to be eligible under
Section 909 and shall fail to resign after written re-
quest therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver
of the Trustee or of its property shall be appointed or
any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (x) the Company by a Board Resolution
may remove the Trustee with respect to all Securities or
(y) subject to Section 814, any Holder who has been a bona
fide Holder for at least six months may, on behalf of himself
and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office
of Trustee for any cause (other than as contemplated in clause
(y) in Subsection (d) of this Section), with respect to the
Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those
series (it being understood that any such successor Trustee
may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only
one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of
Section 911. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series
shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the succes-
sor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable
requirements of Section 911, become the successor Trustee with
respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the
Holders and accepted appointment in the manner required by
Section 911, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf
of itself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such
series.
(f) So long as no event which is, or after notice or
lapse of time, or both, would become, an Event of Default
shall have occurred and be continuing, and except with respect
<PAGE>
to a Trustee appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities pursuant to
Subsection (e) of this Section, if the Company shall have
delivered to the Trustee (i) a Board Resolution appointing a
successor Trustee, effective as of a date specified therein,
and (ii) an instrument of acceptance of such appointment,
effective as of such date, by such successor Trustee in
accordance with Section 911, the Trustee shall be deemed to
have resigned as contemplated in Subsection (b) of this
Section, the successor Trustee shall be deemed to have been
appointed by the Company pursuant to Subsection (e) of this
Section and such appointment shall be deemed to have been
accepted as contemplated in Section 911, all as of such date,
and all other provisions of this Section and Section 911 shall
be applicable to such resignation, appointment and acceptance
except to the extent inconsistent with this Subsection (f).
(g) The Company (or, should the Company fail so to act
promptly, the successor trustee at the expense of the Company)
shall give notice of each resignation and each removal of the
Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the
Securities of any series by mailing written notice of such
event by first-class mail, postage prepaid, to all Holders of
Securities of such series as their names and addresses appear
in the Security Register. Each notice shall include the name
of the successor Trustee with respect to the Securities of
such series and the address of its corporate trust office.
SECTION 911. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of all series, every
such successor Trustee so appointed shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the
request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of all sums owed to it, execute
and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring
Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not
all) series, the Company, the retiring Trustee and each
successor Trustee with respect to the Securities of one or
more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers,
<PAGE>
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the
retiring Trustee and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder
by more than one Trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute such
Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution
and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any succes-
sor Trustee, such retiring Trustee, upon payment of all sums
owed to it, shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or
those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any instruments which fully vest in and
confirm to such successor Trustee all such rights, powers and
trusts referred to in Subsection (a) or (b) of this Section,
as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee
shall be qualified and eligible under this Article.
SECTION 912. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any Person into which the Trustee may be merged or
converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any Person succeeding to all or
substantially all the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided such
Person shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case
any Securities shall have been authenticated, but not delivered,
by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities.
SECTION 913. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If the Trustee shall be or become a creditor of the
Company or any other obligor upon the Securities (other than by
reason of a relationship described in Section 311(b) of the Trust
<PAGE>
Indenture Act), the Trustee shall be subject to any and all
applicable provisions of the Trust Indenture Act regarding the
collection of claims against the Company or such other obligor.
For purposes of Section 311(b) of the Trust Indenture Act:
(a) the term "cash transaction" means any transaction in
which full payment for goods or securities sold is made within
seven days after delivery of the goods or securities in
currency or in checks or other orders drawn upon banks or
bankers and payable upon demand;
(b) the term "self-liquidating paper" means any draft,
bill of exchange, acceptance or obligation which is made,
drawn, negotiated or incurred by the Company for the purpose
of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to, possession
of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods,
wares or merchandise previously constituting the security,
provided the security is received by the Trustee
simultaneously with the creation of the creditor relationship
with the Company arising from the making, drawing, negotiating
or incurring of the draft, bill of exchange, acceptance or
obligation.
SECTION 914. CO-TRUSTEES AND SEPARATE TRUSTEES.
At any time or times, for the purpose of meeting the
legal requirements of any applicable jurisdiction, the Company
and the Trustee shall have power to appoint, and, upon the
written request of the Trustee or of the Holders of at least 33%
in principal amount of the Securities then Outstanding, the
Company shall for such purpose join with the Trustee in the
execution and delivery of all instruments and agreements
necessary or proper to appoint, one or more Persons approved by
the Trustee either to act as co-trustee, jointly with the
Trustee, or to act as separate trustee, in either case with such
powers as may be provided in the instrument of appointment, and
to vest in such Person or Persons, in the capacity aforesaid, any
property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section. If the Company
does not join in such appointment within 15 days after the
receipt by it of a request so to do, or if an Event of Default
shall have occurred and be continuing, the Trustee alone shall
have power to make such appointment.
Should any written instrument or instruments from the
Company be required by any co-trustee or separate trustee so
appointed to more fully confirm to such co-trustee or separate
trustee such property, title, right or power, any and all such
instruments shall, on request, be executed, acknowledged and
delivered by the Company.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject
to the following conditions:
(a) the Securities shall be authenticated and delivered,
and all rights, powers, duties and obligations hereunder in
respect of the custody of securities, cash and other personal
<PAGE>
property held by, or required to be deposited or pledged with,
the Trustee hereunder, shall be exercised solely, by the
Trustee;
(b) the rights, powers, duties and obligations hereby
conferred or imposed upon the Trustee in respect of any
property covered by such appointment shall be conferred or
imposed upon and exercised or performed either by the Trustee
or by the Trustee and such co-trustee or separate trustee
jointly, as shall be provided in the instrument appointing
such co-trustee or separate trustee, except to the extent that
under any law of any jurisdiction in which any particular act
is to be performed, the Trustee shall be incompetent or
unqualified to perform such act, in which event such rights,
powers, duties and obligations shall be exercised and
performed by such co-trustee or separate trustee;
(c) the Trustee at any time, by an instrument in writing
executed by it, with the concurrence of the Company, may
accept the resignation of or remove any co-trustee or separate
trustee appointed under this Section, and, if an Event of
Default shall have occurred and be continuing, the Trustee
shall have power to accept the resignation of, or remove, any
such co-trustee or separate trustee without the concurrence of
the Company. Upon the written request of the Trustee, the
Company shall join with the Trustee in the execution and
delivery of all instruments and agreements necessary or proper
to effectuate such resignation or removal. A successor to any
co-trustee or separate trustee so resigned or removed may be
appointed in the manner provided in this Section;
(d) no co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the
Trustee, or any other such trustee hereunder; and
(e) any Act of Holders delivered to the Trustee shall be
deemed to have been delivered to each such co-trustee and
separate trustee.
SECTION 915. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents
with respect to the Securities of one or more series, or Tranche
thereof, which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series or Tranche
issued upon original issuance and upon exchange, registration of
transfer or partial redemption thereof or pursuant to Section
306, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the
Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation
organized and doing business under the laws of the United States,
any State or territory thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having
<PAGE>
a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of
this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a
party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part
of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The
Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating
Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be
acceptable to the Company. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested
with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under
this Section, and the Trustee shall be entitled to be reimbursed
for such payments, in accordance with, and subject to the
provisions of, Section 907.
The provisions of Sections 308, 904 and 905 shall be ap-
plicable to each Authenticating Agent.
If an appointment with respect to the Securities of one
or more series shall be made pursuant to this Section, the
Securities of such series may have endorsed thereon, in addition
<PAGE>
to the Trustee's certificate of authentication, an alternate
certificate of authentication substantially in the following
form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
Dated:
------------------------
As Trustee
By
----------------------
As Authenticating
Agent
By
----------------------
Authorized Signatory
If all of the Securities of a series may not be
originally issued at one time, and if the Trustee does not have
an office capable of authenticating Securities upon original
issuance located in a Place of Payment where the Company wishes
to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested by the Company in writing
(which writing need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel), shall appoint, in
accordance with this Section and in accordance with such
procedures as shall be acceptable to the Trustee, an
Authenticating Agent having an office in a Place of Payment
designated by the Company with respect to such series of
Securities.
ARTICLE TEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 1001. LISTS OF HOLDERS.
Semiannually, not later than 1 and 1 in
---- --------
each year, commencing 1, , and at such other times
-------- ----
as the Trustee may request in writing, the Company shall furnish
or cause to be furnished to the Trustee information as to the
names and addresses of the Holders, and the Trustee shall
preserve such information and similar information received by it
in any other capacity and afford to the Holders access to
information so preserved by it, all to such extent, if any, and
in such manner as shall be required by the Trust Indenture Act;
provided, however, that no such list need be furnished so long as
the Trustee shall be the Security Registrar.
<PAGE>
SECTION 1002. REPORTS BY TRUSTEE AND COMPANY.
Not later than 1 in each year, commencing
--------
1, , the Trustee shall transmit to the Holders, the
-------- ----
Commission and each securities exchange upon which any Securities
are listed, a report, dated as of the next preceding
---------
15, with respect to any events and other matters described in
Section 313(a) of the Trust Indenture Act, in such manner and to
the extent required by the Trust Indenture Act. The Trustee
shall transmit to the Holders, the Commission and each securities
exchange upon which any Securities are listed, and the Company
shall file with the Trustee (within 30 days after filing with the
Commission in the case of reports which pursuant to the Trust
Indenture Act must be filed with the Commission and furnished to
the Trustee) and transmit to the Holders, such other information,
reports and other documents, if any, at such times and in such
manner, as shall be required by the Trust Indenture Act. The
Company shall notify the Trustee of the listing of any Securities
on any securities exchange.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, CONVEYANCE OR OTHER TRANSFER
SECTION 1101. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS.
The Company shall not consolidate with or merge into any
other Person, or convey or otherwise transfer or lease its
properties and assets substantially as an entirety to any Person,
unless
(a) the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a
Person organized and validly existing under the laws of the
United States, any State thereof or the District of Columbia,
and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form sat-
isfactory to the Trustee, the due and punctual payment of the
principal of and premium, if any, and interest, if any, on all
Outstanding Securities and the performance of every covenant
of this Indenture on the part of the Company to be per-
formed or observed;
(b) immediately after giving effect to such transaction
no Event of Default, and no event which, after notice or lapse
of time or both, would become an Event of Default, shall have
occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance, or other transfer
or lease and such supplemental indenture comply with this
Article and that all conditions precedent herein provided for
relating to such transactions have been complied with.
<PAGE>
SECTION 1102. SUCCESSOR PERSON SUBSTITUTED.
Upon any consolidation by the Company with or merger by
the Company into any other Person or any conveyance, or other
transfer or lease of the properties and assets of the Company
substantially as an entirety in accordance with Section 1101, the
successor Person formed by such consolidation or into which the
Company is merged or the Person to which such conveyance,
transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person
had been named as the Company herein, and thereafter, except in
the case of a lease, the predecessor Person shall be relieved of
all obligations and covenants under this Indenture and the
Securities Outstanding hereunder.
ARTICLE TWELVE
SUPPLEMENTAL INDENTURES
SECTION 1201. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
HOLDERS.
Without the consent of any Holders, the Company and the
Trustee, at any time and from time to time, may enter into one or
more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities, all as
provided in Article Eleven; or
(b) to add one or more covenants of the Company or other
provisions for the benefit of all Holders or for the benefit
of the Holders of, or to remain in effect only so long as
there shall be Outstanding, Securities of one or more
specified series, or one or more specified Tranches thereof,
or to surrender any right or power herein conferred upon the
Company; or
(c) to add any additional Events of Default with respect
to all or any series of Securities Outstanding hereunder; or
(d) to change or eliminate any provision of this Inden-
ture or to add any new provision to this Indenture; provided,
however, that if such change, elimination or addition shall
adversely affect the interests of the Holders of Securities of
any series or Tranche Outstanding on the date of such
indenture supplemental hereto in any material respect, such
change, elimination or addition shall become effective with
respect to such series or Tranche only pursuant to the
provisions of Section 1202 hereof or when no Security of such
series or Tranche remains Outstanding; or
(e) to provide collateral security for all but not part
of the Securities; or
<PAGE>
(f) to establish the form or terms of Securities of any
series or Tranche as contemplated by Sections 201 and 301; or
(g) to provide for the authentication and delivery of
bearer securities and coupons appertaining thereto
representing interest, if any, thereon and for the procedures
for the registration, exchange and replacement thereof and for
the giving of notice to, and the solicitation of the vote or
consent of, the holders thereof, and for any and all other
matters incidental thereto; or
(h) to evidence and provide for the acceptance of
appointment hereunder by a separate or successor Trustee or
co-trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 911(b); or
(i) to provide for the procedures required to permit the
Company to utilize, at its option, a noncertificated system of
registration for all, or any series or Tranche of, the Securi-
ties; or
(j) to change any place or places where (1) the
principal of and premium, if any, and interest, if any, on all
or any series of Securities, or any Tranche thereof, shall be
payable, (2) all or any series of Securities, or any Tranche
thereof, may be surrendered for registration of transfer, (3)
all or any series of Securities, or any Tranche thereof, may
be surrendered for exchange and (4) notices and demands to or
upon the Company in respect of all or any series of
Securities, or any Tranche thereof, and this Indenture may be
served; or
(k) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with
any other provision herein, or to make any other changes to
the provisions hereof or to add other provisions with respect
to matters or questions arising under this Indenture, provided
that such other changes or additions shall not adversely
affect the interests of the Holders of Securities of any
series or Tranche in any material respect.
Without limiting the generality of the foregoing, if the
Trust Indenture Act as in effect at the date of the execution and
delivery of this Indenture or at any time thereafter shall be
amended and
(x) if any such amendment shall require one or more
changes to any provisions hereof or the inclusion herein
of any additional provisions, or shall by operation of
law be deemed to effect such changes or incorporate such
provisions by reference or otherwise, this Indenture
shall be deemed to have been amended so as to conform to
such amendment to the Trust Indenture Act, and the
Company and the Trustee may, without the consent of any
<PAGE>
Holders, enter into an indenture supplemental hereto to
effect or evidence such changes or additional provisions;
or
(y) if any such amendment shall permit one or more
changes to, or the elimination of, any provisions hereof
which, at the date of the execution and delivery hereof
or at any time thereafter, are required by the Trust
Indenture Act to be contained herein, this Indenture
shall be deemed to have been amended to effect such
changes or elimination, and the Company and the Trustee
may, without the consent of any Holders, enter into an
indenture supplemental hereto to evidence such amendment
hereof.
SECTION 1202. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of a majority in
aggregate principal amount of the Securities of all series then
Outstanding under this Indenture, considered as one class, by Act
of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to, or changing in any
manner or eliminating any of the provisions of, this Indenture or
modifying in any manner the rights of the Holders of Securities
of such series under the Indenture; provided, however, that if
there shall be Securities of more than one series Outstanding
hereunder and if a proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or more,
but less than all, of such series, then the consent only of the
Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series so directly affected,
considered as one class, shall be required; and provided,
further, that if the Securities of any series shall have been
issued in more than one Tranche and if the proposed supplemental
indenture shall directly affect the rights of the Holders of
Securities of one or more, but less than all, of such Tranches,
then the consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all Tranches so
directly affected, considered as one class, shall be required;
and provided, further, that no such supplemental indenture shall:
(a) change the Stated Maturity of the principal of, or
any installment of principal of or interest on, any Security,
or reduce the principal amount thereof or the rate of interest
thereon (or the amount of any installment of interest thereon)
or change the method of calculating such rate or reduce any
premium payable upon the redemption thereof, or reduce the
amount of the principal of a Discount Security that would be
due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 802, or change the coin
or currency (or other property), in which any Security or any
premium or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such
payment on or after the Stated Maturity of any Security (or,
in the case of redemption, on or after the Redemption Date),
without, in any such case, the consent of the Holder of such
Security, or
<PAGE>
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series, or any Tranche thereof,
the consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of which
is required for any waiver of compliance with any provision of
this Indenture or of any default hereunder and its conse-
quences, or reduce the requirements of Section 1304 for quorum
or voting, without, in any such case, the consent of the
Holders of each Outstanding Security of such series or
Tranche, or
(c) modify any of the provisions of this Section,
Section 607 or Section 813 with respect to the Securities of
any series, or any Tranche thereof, except to increase the
percentages in principal amount referred to in this Section or
such other Sections or to provide that other provisions of
this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to
changes in the references to "the Trustee" and concomitant
changes in this Section, or the deletion of this proviso, in
accordance with the requirements of Sections 911(b), 914 and
1201(h).
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series
of Securities, or one or more Tranches thereof, or which modifies
the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not
to affect the rights under this Indenture of the Holders of
Securities of any other series or Tranche.
It shall not be necessary for any Act of Holders under
this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof. A waiver by a Holder of
such Holder's right to consent under this Section shall be deemed
to be a consent of such Holder.
SECTION 1203. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created
by, any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture,
the Trustee shall be entitled to receive, and (subject to Section
901) shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may,
but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties,
immunities or liabilities under this Indenture or otherwise.
SECTION 1204. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under
this Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities
<PAGE>
theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby. Any supplemental indenture permitted by
this Article may restate this Indenture in its entirety, and,
upon the execution and delivery thereof, any such restatement
shall supersede this Indenture as theretofore in effect for all
purposes.
SECTION 1205. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture
Act as then in effect.
SECTION 1206. REFERENCE IN SECURITIES TO SUPPLEMENTAL
INDENTURES.
Securities of any series, or any Tranche thereof,
authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of
any series, or any Tranche thereof, so modified as to conform, in
the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series or Tranche.
SECTION 1207. MODIFICATION WITHOUT SUPPLEMENTAL INDENTURE.
If the terms of any particular series of Securities shall
have been established in a Board Resolution or an Officer's
Certificate as contemplated by Section 301, and not in an
indenture supplemental hereto, additions to, changes in or the
elimination of any of such terms may be effected by means of a
supplemental Board Resolution or Officer's Certificate, as the
case may be, delivered to, and accepted by, the Trustee;
provided, however, that such supplemental Board Resolution or
Officer's Certificate shall not be accepted by the Trustee or
otherwise be effective unless all conditions set forth in this
Indenture which would be required to be satisfied if such
additions, changes or elimination were contained in a
supplemental indenture shall have been appropriately satisfied.
Upon the acceptance thereof by the Trustee, any such supplemental
Board Resolution or Officer's Certificate shall be deemed to be a
"supplemental indenture" for purposes of Section 1204 and 1206.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of one or more, or
all, series, or any Tranche or Tranches thereof, may be called at
any time and from time to time pursuant to this Article to make,
give or take any request, demand, authorization, direction,
<PAGE>
notice, consent, waiver or other action provided by this
Indenture to be made, given or taken by Holders of Securities of
such series or Tranches.
SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of
Holders of Securities of one or more, or all, series, or any
Tranche or Tranches thereof, for any purpose specified in
Section 1301, to be held at such time and at such place in
[the Borough of Manhattan, The City of New York], as the
Trustee shall determine, or, with the approval of the Company,
at any other place. Notice of every such meeting, setting
forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall
be given, in the manner provided in Section 106, not less than
21 nor more than 180 days prior to the date fixed for the
meeting.
(b) If the Trustee shall have been requested to call a
meeting of the Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, by the Company or
by the Holders of 33% in aggregate principal amount of all of
such series and Tranches, considered as one class, for any
purpose specified in Section 1301, by written request setting
forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have given the notice
of such meeting within 21 days after receipt of such request
or shall not thereafter proceed to cause the meeting to be
held as provided herein, then the Company or the Holders of
Securities of such series and Tranches in the amount above
specified, as the case may be, may determine the time and the
place in [the Borough of Manhattan, The City of New York], or
in such other place as shall be determined or approved by the
Company, for such meeting and may call such meeting for such
purposes by giving notice thereof as provided in Subsection
(a) of this Section.
(c) Any meeting of Holders of Securities of one or more,
or all, series, or any Tranche or Tranches thereof, shall be
valid without notice if the Holders of all Outstanding
Securities of such series or Tranches are present in person or
by proxy and if representatives of the Company and the Trustee
are present, or if notice is waived in writing before or after
the meeting by the Holders of all Outstanding Securities of
such series, or any Tranche or Tranches thereof, or by such of
them as are not present at the meeting in person or by proxy,
and by the Company and the Trustee.
SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of
Securities of one or more, or all, series, or any Tranche or
Tranches thereof, a Person shall be (a) a Holder of one or more
Outstanding Securities of such series or Tranches, or (b) a
Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such
series or Tranches by such Holder or Holders. The only Persons
who shall be entitled to attend any meeting of Holders of
Securities of any series or Tranche shall be the Persons entitled
<PAGE>
to vote at such meeting and their counsel, any representatives of
the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 1304. QUORUM; ACTION.
The Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of the series and
Tranches with respect to which a meeting shall have been called
as hereinbefore provided, considered as one class, shall
constitute a quorum for a meeting of Holders of Securities of
such series and Tranches; provided, however, that if any action
is to be taken at such meeting which this Indenture expressly
provides may be taken by the Holders of a specified percentage,
which is less than a majority, in principal amount of the
Outstanding Securities of such series and Tranches, considered as
one class, the Persons entitled to vote such specified percentage
in principal amount of the Outstanding Securities of such series
and Tranches, considered as one class, shall constitute a quorum.
In the absence of a quorum within one hour of the time appointed
for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series and Tranches, be
dissolved. In any other case the meeting may be adjourned for
such period as may be determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may
be further adjourned for such period as may be determined by the
chairman of the meeting prior to the adjournment of such
adjourned meeting. Except as provided by Section 1305(e), notice
of the reconvening of any meeting adjourned for more than 30 days
shall be given as provided in Section 1302(a) not less than 10
days prior to the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities of such series and
Tranches which shall constitute a quorum.
Except as limited by Section 1202, any resolution pre-
sented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted only by the
affirmative vote of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of the series and
Tranches with respect to which such meeting shall have been
called, considered as one class; provided, however, that, except
as so limited, any resolution with respect to any action which
this Indenture expressly provides may be taken by the Holders of
a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of such series and
Tranches, considered as one class, may be adopted at a meeting
or an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid by the affirmative vote of the Holders of
such specified percentage in principal amount of the Outstanding
Securities of such series and Tranches, considered as one class.
Any resolution passed or decision taken at any meeting of
Holders of Securities duly held in accordance with this Section
shall be binding on all the Holders of Securities of the series
and Tranches with respect to which such meeting shall have been
held, whether or not present or represented at the meeting.
<PAGE>
SECTION 1305. ATTENDANCE AT MEETINGS; DETERMINATION OF VOTING
RIGHTS; CONDUCT AND ADJOURNMENT OF MEETINGS.
(a) Attendance at meetings of Holders of Securities may
be in person or by proxy; and, to the extent permitted by law,
any such proxy shall remain in effect and be binding upon any
future Holder of the Securities with respect to which it was
given unless and until specifically revoked by the Holder or
future Holder of such Securities before being voted.
(b) Notwithstanding any other provisions of this Inden-
ture, the Trustee may make such reasonable regulations as it
may deem advisable for any meeting of Holders of Securities in
regard to proof of the holding of such Securities and of the
appointment of proxies and in regard to the appointment and
duties of inspectors of votes, the submission and examination
of proxies, certificates and other evidence of the right to
vote, and such other matters concerning the conduct of the
meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of
Securities shall be proved in the manner specified in Section
104 and the appointment of any proxy shall be proved in the
manner specified in Section 104. Such regulations may provide
that written instruments appointing proxies, regular on their
face, may be presumed valid and genuine without the proof
specified in Section 104 or other proof.
(c) The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the
meeting shall have been called by the Company or by Holders as
provided in Section 1302(b), in which case the Company or the
Holders of Securities of the series and Tranches calling the
meeting, as the case may be, shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the
Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of all series and
Tranches represented at the meeting, considered as one class.
(d) At any meeting each Holder or proxy shall be
entitled to one vote for each $1 principal amount of
Securities held or represented by him; provided, however, that
no vote shall be cast or counted at any meeting in respect of
any Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman
of the meeting shall have no right to vote, except as a Holder
of a Security or proxy.
(e) Any meeting duly called pursuant to Section 1302 at
which a quorum is present may be adjourned from time to time
by Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of all series and
Tranches represented at the meeting, considered as one class;
and the meeting may be held as so adjourned without further
notice.
<PAGE>
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of
Holders shall be by written ballots on which shall be subscribed
the signatures of the Holders or of their representatives by
proxy and the principal amounts and serial numbers of the
Outstanding Securities, of the series and Tranches with respect
to which the meeting shall have been called, held or represented
by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with
the secretary of the meeting their verified written reports of
all votes cast at the meeting. A record of the proceedings of
each meeting of Holders shall be prepared by the secretary of the
meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken
thereat and affidavits by one or more persons having knowledge of
the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1302
and, if applicable, Section 1304. Each copy shall be signed and
verified by the affidavits of the permanent chairman and
secretary of the meeting and one such copy shall be delivered to
the Company, and another to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots voted at
the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
SECTION 1307. ACTION WITHOUT MEETING.
In lieu of a vote of Holders at a meeting as hereinbefore
contemplated in this Article, any request, demand, authorization,
direction, notice, consent, waiver or other action may be made,
given or taken by Holders by written instruments as provided in
Section 104.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS
SECTION 1401. LIABILITY SOLELY CORPORATE.
No recourse shall be had for the payment of the principal
of or premium, if any, or interest, if any, on any Securities, or
any part thereof, or for any claim based thereon or otherwise in
respect thereof, or of the indebtedness represented thereby, or
upon any obligation, covenant or agreement under this Indenture,
against any incorporator, shareholder, officer or director, as
such, past, present or future of the Company or of any
predecessor or successor corporation (either directly or through
the Company or a predecessor or successor corporation), whether
by virtue of any constitutional provision, statute or rule of
law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly agreed and understood that this
Indenture and all the Securities are solely corporate
obligations, and that no personal liability whatsoever shall
attach to, or be incurred by, any incorporator, shareholder,
officer or director, past, present or future, of the Company or
of any predecessor or successor corporation, either directly or
indirectly through the Company or any predecessor or successor
corporation, because of the indebtedness hereby authorized or
<PAGE>
under or by reason of any of the obligations, covenants or
agreements contained in this Indenture or in any of the
Securities or to be implied herefrom or therefrom, and that any
such personal liability is hereby expressly waived and released
as a condition of, and as part of the consideration for, the
execution of this Indenture and the issuance of the Securities.
ARTICLE FIFTEEN
SERIES NOTES
-
SECTION 1501. DESIGNATION OF SERIES NOTES.
-
There is hereby created a series of Securities designated
" % Senior Notes Series due " (herein
---- -- --------------
sometimes referred to as "Series Notes") and limited in
-
aggregate principal amount (except as contemplated in Section
301(b) hereof) to $ . The form and terms of the Series
-----------
Notes shall be established in an Officer's Certificate
--
pursuant to Sections 201 and 301.
-------------------------
This instrument may be executed in any number of counter-
parts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but
one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the day and year first
above written.
AMEREN CORPORATION
By:
---------------------------------------
[Name]
[Title]
, Trustee
--------------------
By:
---------------------------------------
[Name]
[Title]
Exhibit B-6
AMEREN CORPORATION
OFFICER'S CERTIFICATE
_________________, the ___________ of Ameren Corporation
(the "Company"), pursuant to the authority granted in the Board
Resolutions of the Company dated _________ , ____, and Sections
201, 301 and 1501 of the Indenture defined herein, does hereby
certify to ____________________(the "Trustee"), as Trustee under
the Indenture of the Company (For Unsecured Debt Securities)
dated as of _________, ____ (the "Indenture") that:
1. The securities of the _____ series to be issued under the
Indenture shall be designated "_____% Series __ Senior Notes
due ____" (the "Senior Notes of the _____ Series"). All
capitalized terms used in this certificate which are not
defined herein but are defined in the Indenture shall have
the meanings set forth in the Indenture;
2. The Senior Notes of the _____ Series shall be limited in
aggregate principal amount to $___________ at any time
Outstanding, except as contemplated in Section 301(b) of the
Indenture;
3. The Senior Notes of the _____ Series shall mature and the
principal shall be due and payable together with all accrued
and unpaid interest thereon on _________, ____;
4. The Senior Notes of the _____ Series shall be issued in the
denominations of $_____ and in integral multiples of $_____
in excess thereof.
5. The Senior Notes of the _____ Series shall bear interest at
the rate of _____% per annum payable semi-annually on
_________ and ______ of each year (each, an "Interest
Payment Date"). Interest on the Senior Notes of the _____
Series will accrue from __________, ____, but if interest
has been paid on such Senior Notes of the _____ Series, then
from the most recent Interest Payment Date to which interest
has been paid or duly provided for. In the event that any
Interest Payment Date is not a Business Day, then payment of
interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any
interest or other payment in respect of such delay), with
the same force and effect as if made on such Interest
Payment Date;
6. Each installment of interest on a Senior Note of the _____
Series shall be payable to the Person in whose name such
Senior Note of the _____ Series is registered at the close
of business on the ____ day of the calendar month next
preceding the corresponding Interest Payment Date (the
"Regular Record Date") for the Senior Notes of the _____
Series. Any installment of interest on the Senior Notes of
the _____ Series not punctually paid or duly provided for
shall forthwith cease to be payable to the Holders of such
Senior Notes of the _______ Series on such Regular Record
Date, and may be paid to the Persons in whose name such
Senior Notes of the ______ Series are registered at the
close of business on a Special Record Date to be fixed by
<PAGE>
the Trustee for the payment of such Defaulted Interest.
Notice of such Defaulted Interest and Special Record Date
shall be given to the Holders of such Senior Notes of the
_______ Series not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful
manner not inconsistent with the requirements of any
securities exchange on which such Senior Notes of the ______
Series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the
Indenture;
7. The principal and each installment of interest on the Senior
Notes of the _______ Series shall be payable at, and
registration and registration of transfers and exchanges in
respect of the Senior Notes of the ______ Series may be
effected at, the office or agency of the Company in [The
City of New York]; provided that payment of interest may be
made at the option of the Company by check mailed to the
address of the persons entitled thereto. Notices and
demands to or upon the Company in respect of the Senior
Notes of the ______ Series may be served at the office or
agency of the Company in [The City of New York]. The
Corporate Trust Office of the Trustee will initially be the
agency of the Company for such payment, registration and
registration of transfers and exchanges and service of
notices and demands and the Company hereby appoints the
Trustee as its agent for all such purposes; provided,
however, that the Company reserves the right to change, by
one or more Officer's Certificates, any such office or
agency and such agent. The Trustee will be the Security
Registrar and the Paying Agent for the Senior Notes of the
_______ Series;
8. [Insert redemption provisions here];
9. [The Notes of ___Series are issued in global form registered
in the name of Cede & Co. (as nominee for The Depository
Trust Company ("DTC"), New York, New York), such Senior
Notes of the _______ Series shall bear the depository legend
in substantially the form set forth in Exhibit A hereto.]
The Senior Notes of the _____ Series shall contain
restrictions on transfer, substantially as described in the
form set forth in Exhibit A hereto. Each Senior Note of the
_____ Series, whether in a global form or in a certificated
form, shall bear the non-registration legend and the
registration rights legend in substantially the form set
forth in such form, unless otherwise agreed by the Company,
such agreement to be confirmed in writing to the Trustee.
Nothing in the Indenture, the Senior Notes of the ______
Series or this certificate shall be construed to require the
Company to register any Senior Notes of the _____ Series
under the Securities Act, unless otherwise expressly agreed
by the Company, confirmed in writing to the Trustee, or to
make any transfer of such Senior Notes of the _____ Series
in violation of applicable law.
10. [It is contemplated that beneficial interests in Senior
Notes of the _____ Series owned by qualified institutional
buyers (as defined in Rule 144A under the Securities
Act)("QIBs") or sold to QIBs in reliance upon Rule 144A
under the Securities Act will be represented by a global
certificate registered in the name of Cede & Co., as
registered owner and as nominee for DTC; beneficial
interests in Senior Notes of the _____ Series sold to
foreign purchasers pursuant to Regulation S under the
Securities Act will be evidenced by one or more separate
global certificates (each the "Regulation S Global
Certificate") and will be registered in the name of Cede &
Co., as registered owner and as nominee for DTC for the
accounts of Euroclear and Cedel Bank; prior to the 40th day
after the date of initial issuance of the Senior Notes of
the _____ Series, beneficial interests in the Regulation S
Global Certificate may be held only through Euroclear or
<PAGE>
Cedel Bank; Senior Notes of the _____ Series acquired by
Institutional Accredited Investors (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act)
("IAIs") and other eligible transferees, who are not QIBs
and who are not foreign purchasers pursuant to Regulation S
under the Securities Act, will be in certificated form. The
Trustee, the Security Registrar and the Company will have no
responsibility under the Indenture for transfers of
beneficial interests in the Senior Notes of the _____
Series.]
In connection with any transfer of Senior Notes of the _____
Series, the Trustee, the Security Registrar and the Company
shall be under no duty to inquire into, may conclusively
presume the correctness of, and shall be fully protected in
relying upon the certificates and other information (in the
forms attached hereto as Exhibit A, for use in connection
with the transfer of the Senior Notes of the ______ Series
in certificated form, or Exhibit C, for use in connection
with the transfer of beneficial interests in one global
certificate to another global certificate or to a Senior
Note of the ______ Series in certificated form, or
otherwise) received from the Holders and any transferees of
any Senior Notes of the _____ Series regarding the validity,
legality and due authorization of any such transfer, the
eligibility of the transferee to receive such Security and
any other facts and circumstances related to such transfer;
11. No service charge shall be made for the registration of
transfer or exchange of the Senior Notes of the _____
Series; provided, however, that the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with
the exchange or transfer;
12. If the Company shall make any deposit of money and/or
Eligible Obligations with respect to any Senior Notes of the
_______ Series, or any portion of the principal amount
thereof, as contemplated by Section 701 of the Indenture,
the Company shall not deliver an Officer's Certificate
described in clause (z) in the first paragraph of said
Section 701 unless the Company shall also deliver to the
Trustee, together with such Officer's Certificate, either:
(A) an instrument wherein the Company, notwithstanding
the satisfaction and discharge of its indebtedness in
respect of the Senior Notes of the ______ Series, shall
assume the obligation (which shall be absolute and
unconditional) to irrevocably deposit with the Trustee or
Paying Agent such additional sums of money, if any, or
additional Eligible Obligations (meeting the requirements of
Section 701), if any, or any combination thereof, at such
time or times, as shall be necessary, together with the
money and/or Eligible Obligations theretofore so deposited,
to pay when due the principal of and premium, if any, and
interest due and to become due on such Senior Notes of the
_____ Series or portions thereof, all in accordance with and
subject to the provisions of said Section 701; provided,
however, that such instrument may state that the obligation
of the Company to make additional deposits as aforesaid
shall be subject to the delivery to the Company by the
Trustee of a notice asserting the deficiency accompanied by
an opinion of an independent public accountant of nationally
recognized standing, selected by the Trustee, showing the
calculation thereof; or
(B) an Opinion of Counsel to the effect that, as a
result of a change in law occurring after the date of this
certificate, the Holders of such Senior Notes of the _____
<PAGE>
Series, or portions of the principal amount thereof, will
not recognize income, gain or loss for United States federal
income tax purposes as a result of the satisfaction and
discharge of the Company's indebtedness in respect thereof
and will be subject to United States federal income tax on
the same amounts, at the same times and in the same manner
as if such satisfaction and discharge had not been effected.
13. The Senior Notes of the _____ Series shall have such other
terms and provisions as are provided in the form set forth
in Exhibit A hereto, and shall be issued in substantially
such form; the Senior Notes of the ______ Series shall have
such other terms and provisions as are provided in the form
set forth in Exhibit B hereto, and shall be issued in
substantially such form.
14. The undersigned has read all of the covenants and conditions
contained in the Indenture relating to the issuance of the
Senior Notes of the ______ Series and the definitions in the
Indenture relating thereto and in respect of which this
certificate is made;
15. The statements contained in this certificate are based upon
the familiarity of the undersigned with the Indenture, the
documents accompanying this certificate, and upon
discussions by the undersigned with officers and employees
of the Company familiar with the matters set forth herein;
16. In the opinion of the undersigned, he has made such
examination or investigation as is necessary to enable him
to express an informed opinion whether or not such covenants
and conditions have been complied with; and
17. In the opinion of the undersigned, such conditions and
covenants and conditions precedent, if any (including any
covenants compliance with which constitutes a condition
precedent) to the authentication and delivery of the Senior
Notes of the _____ Series requested in the accompanying
Company Order have been complied with.
IN WITNESS WHEREOF, I have executed this Officer's
Certificate this ____ day of _______, ____.
----------------------------------
Name:
Title:
<PAGE>
EXHIBIT A
[[depository legend]
Unless this Certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Company or its agent for registration
of transfer, exchange, or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or to such other entity as is requested by
an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has
an interest herein.]
[non-registration legend]
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF,
BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE
COMPANY THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED OTHER THAN (1) TO THE COMPANY, (2) IN A
TRANSACTION ENTITLED TO AN EXEMPTION FROM REGISTRATION PROVIDED
BY RULE 144 UNDER THE SECURITIES ACT, (3) SO LONG AS THIS
SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE
TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS
SECURITY), (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE
904 OF REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE
BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON
THE REVERSE OF THIS SECURITY), OR (5) TO AN INSTITUTION THAT IS
AN "ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3)
OR (7) UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED
BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE
OF THIS SECURITY) THAT IS ACQUIRING THIS SECURITY FOR INVESTMENT
PURPOSES AND NOT FOR DISTRIBUTION, AND A CERTIFICATE IN THE FORM
ATTACHED TO THIS SECURITY IS DELIVERED BY THE TRANSFEREE TO THE
COMPANY AND THE TRUSTEE IN EACH CASE IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. AN
INSTITUTIONAL ACCREDITED INVESTOR HOLDING THIS SECURITY AGREES IT
WILL FURNISH TO THE COMPANY AND THE TRUSTEE SUCH CERTIFICATES AND
OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT
ANY TRANSFER BY IT OF THIS SECURITY COMPLIES WITH THE FOREGOING
RESTRICTIONS. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY,
REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY THAT IT IS
(1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A OR (2) AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR"
AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT AND THAT IT IS HOLDING THIS SECURITY FOR
INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (3) A NON-U.S.
<PAGE>
PERSON OUTSIDE THE UNITED STATES WITHIN THE MEANING OF, OR AN
ACCOUNT SATISFYING THE REQUIREMENTS OF PARAGRAPH (o)(2) OF
RULE 902 UNDER, REGULATION S UNDER THE SECURITIES ACT."
NO._______________ CUSIP NO.__________
[FORM OF FACE OF SENIOR NOTE]
AMEREN CORPORATION
__% SERIES _ SENIOR NOTES DUE ____
AMEREN CORPORATION, a corporation duly organized and
existing under the laws of the State of Missouri (herein referred
to as the "Company", which term includes any successor Person
under the Indenture), for value received, hereby promises to pay
to
or registered assigns, the principal sum of ____________________
Dollars on __________, and to pay interest on said principal sum
semi-annually on _________ and ______ of each year (each an
Interest Payment Date) at the rate of ___% per annum until the
principal hereof is paid or made available for payment. Interest
on the Securities of this series will accrue from __________, to
the first Interest Payment Date, and thereafter will accrue from
the last Interest Payment Date to which interest has been paid or
duly provided for. In the event that any Interest Payment Date is
not a Business Day, then payment of interest payable on such date
will be made on the next succeeding day which is a Business Day
(and without any interest or other payment in respect of such
delay) with the same force and effect as if made on the Interest
Payment Date. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided
in such Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such
interest, which shall be the __th day of the calendar month next
preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either
be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on
a Special Record Date for the payment of such Defaulted Interest
to be fixed by the Trustee, notice whereof shall be given to
Holders of Securities of this series not less than 10 days prior
to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be
listed, and upon such notice as may be required by such exchange,
all as more fully provided in the Indenture referred to on the
reverse hereof.
Payment of the principal of (and premium, if any) and
interest on this Security will be made at the office or agency of
the Company maintained for that purpose in [The City of New York,
the State of New York] in such coin or currency of the United
States of America as at the time of payment is legal tender for
payment of public and private debts, provided, however, that, at
the option of the Company, interest on this Security may be paid
by check mailed to the address of the person entitled thereto, as
such address shall appear on the Security Register.
<PAGE>
Reference is hereby made to the further provisions of
this Security set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has
been executed by the Trustee referred to on the reverse hereof by
manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed.
AMEREN CORPORATION
By:_______________________________________
ATTEST:
____________________________
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
____________________, as Trustee
By:____________________________________
Authorized Signatory
<PAGE>
[FORM OF REVERSE OF SENIOR NOTE]
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"),
issued and to be issued in one or more series under an Indenture
(for Unsecured Debt Securities), dated as of _______________
(herein, together with any amendments thereto, called the
"Indenture", which term shall have the meaning assigned to it in
such instrument), between the Company and ____________________,
as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), and reference is hereby
made to the Indenture, including the Board Resolutions and
Officer's Certificate filed with the Trustee on ______________
creating the series designated on the face hereof, for a
statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof,
limited in aggregate principal amount to $___________.
[REDEMPTION PROVISIONS WILL BE INSERTED HERE]
The Indenture contains provisions for defeasance at any
time of the entire indebtedness of this Security upon compliance
with certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of
this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under the
Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of all series to be affected.
The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of
each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made
upon this Security.
As provided in and subject to the provisions of the
Indenture, the Holder of this Security shall not have the right
to institute any proceeding with respect to the Indenture or for
the appointment of a receiver or trustee or for any other remedy
thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with
respect to the Securities of this series, the Holders of a
majority in aggregate principal amount of the Securities of all
series at the time Outstanding in respect of which an Event of
Default shall have occurred and be continuing shall have made
written request to the Trustee to institute proceedings in
respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity, and the Trustee shall not have
received from the Holders of a majority in aggregate principal
amount of Securities of all series at the time Outstanding in
respect of which an Event of Default shall have occurred and be
continuing a direction inconsistent with such request, and shall
have failed to institute any such proceeding, for 60 days after
receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal
hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
<PAGE>
to pay the principal of and any premium and interest on this
Security at the times, place and rate, and in the coin or
currency, herein prescribed.
The Securities of this series are issuable only in
registered form without coupons in denominations of $______ and
in integral multiples of $______ in excess thereof. As provided
in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of
like tenor and of authorized denominations, as requested by the
Holder surrendering the same.
No service charge shall be made for any such
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Security
is registered as the absolute owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in
the Indenture shall have the meanings assigned to them in the
Indenture.
<PAGE>
[CERTIFICATE OF TRANSFER]
___% SERIES _ SENIOR NOTES DUE ____
FOR VALUE RECEIVED, the undersigned sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
[ ] -------------------------------------
-------------------------
Name and address of assignee must
be printed or typewritten.
-----------------------------------------------------------------
the within Security of the Company and does hereby irrevocable
constitute and appoint
-----------------------------------------------------------------
to transfer the said Security on the books of the within-named
Company, with full power of substitution in the premises.
The undersigned certifies that said Security is being resold,
pledged or otherwise transferred as follows: (check one)
[ ] to the Company;
[ ] to a Person whom the undersigned reasonably believes is a
qualified institutional buyer within the meaning of Rule
144A under the Securities Act of 1933, as amended (the
"Securities Act") purchasing for its own account or for the
account of a qualified institutional buyer to whom notice is
given that the resale, pledge or other transfer is being
made in reliance on Rule 144A;
[ ] in an offshore transaction in accordance with Rule 904 of
Regulation S under the Securities Act;
[ ] to an institution that is an "accredited investor" as
defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act that is acquiring this Security for
investment purposes and not for distribution; (attach a copy
of an Accredited Investor Certificate in the form annexed
signed by an authorized officer of the transferee)
[ ] as otherwise permitted by the non-registration legend
appearing on this Security; or
[ ] as otherwise agreed by the Company, confirmed in writing to
the Trustee, as follows: [describe]
------------------------------------------------------------
------------------------------------------------------------
Dated:
--------------------------- ----------------------------
<PAGE>
[FORM OF ACCREDITED INVESTOR CERTIFICATE]
[Transferor Name and Address]
Ladies and Gentlemen:
In connection with our proposed purchase of __% Series _ Senior
Notes due ____ (the "Senior Notes") issued by Ameren Corporation
("Issuer"), we confirm that:
1. We have received a copy of the Offering
Memorandum (the "Offering Memorandum") relating to the
Senior Notes and such other information as we deem necessary
in order to make our investment decision. We acknowledge
that we have read and agree to the matters stated under the
caption NOTICE TO INVESTORS in such Offering Memorandum, and
the restrictions on duplication or circulation of, or
disclosure relating to, such Offering Memorandum.
2. We understand that any subsequent transfer of the
Senior Notes is subject to certain restrictions and
conditions set forth in the Indenture relating to Senior
Notes (the "Indenture") and that any subsequent transfer of
the Senior Notes is subject to certain restrictions and
conditions set forth under NOTICE TO INVESTORS in the
Offering Memorandum and the undersigned agrees to be bound
by, and not to resell, pledge or otherwise transfer the
Senior Notes except in compliance with such restrictions and
conditions and the Securities Act of 1933, as amended
("Securities Act").
3. We understand that the offer and sale of the
Senior Notes have not been registered under the Securities
Act, and that the Senior Notes may not be offered or sold
except as permitted in the following sentence. We agree, on
our own behalf and on behalf of any accounts for which we
are acting as hereinafter stated, that if we sell any Senior
Notes, we will do so only (A) to the Company, (B) in
accordance with Rule 144A under the Securities Act to a
"qualified institutional buyer" (as defined therein), (C) to
an institutional "accredited investor" (as defined below)
that, prior to such transfer, furnishes to the Trustee (as
defined in the Indenture) a signed letter containing certain
representations and agreements relating to the restrictions
on transfer of the Senior Notes (substantially in the form
of this letter) and, if such transfer is in respect of an
aggregate principal amount of Senior Notes at the time of
transfer of less than $100,000, an opinion of counsel
acceptable to the Issuer that such transfer is in compliance
with the Securities Act, (D) outside the United States in
accordance with Rule 904 of Regulation S under the
Securities Act, (E) pursuant to the exemption from
registration provided by Rule 144 under the Securities Act
(if available), or (F) pursuant to an effective registration
statement under the Securities Act, and we further agree to
provide to any person purchasing any of the Senior Notes
from us a notice advising such purchaser that resales of the
Senior Notes are restricted as stated herein.
4. We understand that, on any proposed resale of any
Senior Notes, we will be required to furnish to the Trustee
and Issuer such certifications, legal opinions and other
information as the Trustee and Issuer may reasonably require
to confirm that the proposed sale complies with the
foregoing restrictions. We further understand that the
Senior Notes purchased by us will bear a legend to the
foregoing effect.
<PAGE>
5. We are an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D
under the Securities Act) and have such knowledge and
experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment
in the Senior Notes, and we and any accounts for which are
acting are each able to bear the economic risk of our or its
investment.
6. We are acquiring the Senior Notes purchased by us
for our own account or for one or more accounts (each of
which is an institutional "accredited investor") as to each
of which we exercise sole investment discretion.
You, the Issuer and the Trustee are entitled to rely upon
this letter and are irrevocably authorized to produce this letter
or a copy hereof to any interested party in any administrative or
legal proceeding or official inquiry with respect to the matters
covered hereby.
Very truly yours,
By:____________________
Name:
Title:
Exhibit B-7
AMEREN CORPORATION
_____% Series __ Senior Notes due ____
PURCHASE AGREEMENT
------------------
_________, ____
[Purchaser[s] Name[s] and Address[es]]
Ladies and Gentlemen:
1. Introduction. Ameren Corporation, a Missouri corporation
-------------
(the "Company"), proposes to issue and sell to you (the "Initial
Purchasers"), $___________ principal amount of its _____% Series
__ Senior Notes due ____ (the "Securities"), subject to the terms
and conditions set forth herein. The Securities are to be issued
pursuant to the provisions of the Indenture (for Unsecured Debt
Securities), dated as of _________, ____, between the Company and
____________________, as Trustee (the "Trustee"), said Indenture,
together with any amendments or supplements thereto, being
hereinafter referred to as the "Indenture".
2. Terms of Offering. The Securities will be offered and sold
------------------
to the Initial Purchasers pursuant to one or more exemptions from
the registration requirements under the Securities Act of 1933,
as amended (the "Securities Act"). The Company has prepared and
will deliver to the Initial Purchasers, on the date hereof or the
next succeeding day, copies of an offering memorandum, dated
_________, ____, relating to the Securities, for use by the
Initial Purchasers in connection with their solicitation of
purchases of, or offerings of, the Securities. "Offering
Memorandum" means, with respect to any date or time referred to
in this Agreement, the most recent offering memorandum (including
any amendment or supplement to such document as of such date),
including exhibits thereto and any documents incorporated therein
by reference, which has been prepared and delivered by the
Company to the Initial Purchasers in connection with their
solicitation of purchases of, or offering of, the Securities.
The Initial Purchasers have advised the Company that the
Initial Purchasers will make offers (the "Exempt Resales") of the
Securities purchased hereunder on the terms set forth in the
Offering Memorandum solely to persons whom the Initial Purchasers
<PAGE>
reasonably believe to be (i) "qualified institutional buyers" as
defined in Rule 144A under the Securities Act ("QIBs"), (ii)
other institutional "accredited investors" as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act that execute
and deliver a certificate containing certain representations and
agreements ("Institutional Accredited Investors"), and (iii) non-
U.S. persons to whom offers and sales of the Securities may be
made in reliance upon the provisions of Regulation S under the
Securities Act (such persons collectively being referred to
herein as the "Eligible Purchasers"). The Initial Purchasers
will offer the Securities to Eligible Purchasers initially at a
price equal to ______% of the principal amount thereof. Such
price may be changed at any time without notice.
Upon original issuance thereof, and until such time as
the same is no longer required pursuant to the Indenture with
respect thereto, the Securities shall bear the following legend:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER
HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT
OF THE COMPANY THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED
OR OTHERWISE TRANSFERRED OTHER THAN (1) TO THE COMPANY,
(2) IN A TRANSACTION ENTITLED TO AN EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT,
(3) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT
TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT
THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A (AS INDICATED BY THE BOX CHECKED BY
THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE
OF THIS SECURITY), (4) IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE
TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF
THIS SECURITY), OR (5) TO AN INSTITUTION THAT IS AN
"ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3)
OR (7) UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX
CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON
THE REVERSE OF THIS SECURITY) THAT IS ACQUIRING THIS
SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION,
AND A CERTIFICATE IN THE FORM ATTACHED TO THIS SECURITY IS
DELIVERED BY THE TRANSFEREE TO THE COMPANY AND THE TRUSTEE
IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES. AN INSTITUTIONAL
ACCREDITED INVESTOR HOLDING THIS SECURITY AGREES IT WILL
<PAGE>
FURNISH TO THE COMPANY AND THE TRUSTEE SUCH CERTIFICATES AND
OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM
THAT ANY TRANSFER BY IT OF THIS SECURITY COMPLIES WITH THE
FOREGOING RESTRICTIONS. THE HOLDER HEREOF, BY PURCHASING
THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE
COMPANY THAT IT IS (1) A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A OR (2) AN INSTITUTION THAT
IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT AND THAT IT IS
HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR
DISTRIBUTION OR (3) A NON-U.S. PERSON OUTSIDE THE UNITED
STATES WITHIN THE MEANING OF, OR AN ACCOUNT SATISFYING THE
REQUIREMENTS OF PARAGRAPH (o)(2) OF RULE 902 UNDER,
REGULATION S UNDER THE SECURITIES ACT."
3. Representations and Warranties of the Company. The Company
---------------------------------------------
represents and warrants to the Initial Purchasers that:
a. At the date hereof, the Offering Memorandum does
not, and at the Closing Date, as hereinafter defined, the
Offering Memorandum will not, contain an untrue statement of
a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements
therein not misleading; provided that the foregoing
representations and warranties in this paragraph (a) shall
not apply to statements or omissions made in reliance upon
and in conformity with the information furnished to the
Company in writing by, or on behalf of, the Initial
Purchasers expressly for use in the Offering Memorandum.
b. The consummation of the transactions herein
contemplated and the fulfillment of the terms hereof will
not result in a material breach of any of the terms or
provisions of, or constitute a material default under, any
indenture, mortgage, deed of trust or other agreement or
instrument to which the Company is now a party.
c. Subject to compliance by the Initial Purchasers
with the representations and warranties set forth in Section
7 hereof and, with respect to sales to Eligible Purchasers,
compliance by the Initial Purchasers with the provisions of
Rule 144A, Regulation D and Regulation S applicable to the
Initial Purchasers in connection with such sales, it is not
necessary in connection with the offer, sale and delivery of
the Securities by the Company to the Initial Purchasers and
by the Initial Purchasers to each Eligible Purchaser in the
manner contemplated by this Agreement and the Offering
Memorandum to register the Securities under the Securities
Act or to qualify the Indenture under the Trust Indenture
Act of 1939, as amended.
d. The Company has not, directly or indirectly,
solicited any offer to buy or offered to sell, and will not,
directly or indirectly, solicit any offer to buy or offer to
<PAGE>
sell, in the United States or to any United States citizen
or resident, any security which is or would be integrated
with the sale of the Securities in a manner that would
require the Securities to be registered under the Securities
Act.
e. The Securities are eligible for resale pursuant to
Rule 144A and will not be, at the Closing Date, of the same
class as securities listed on a national securities exchange
registered under Section 6 of the Exchange Act, of 1934, as
amended (the "Exchange Act") or quoted in a U.S. automated
interdealer quotation system.
f. None of the Company, its affiliates, as such term
is defined in Rule 501(b) under the Securities Act
("Affiliates"), or any person acting on behalf of the
Company or any Affiliate (other than the Initial Purchasers,
as to whom the Company makes no representation) has engaged
or will engage, in connection with the offering of the
Securities, in any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the
Securities Act.
g. With respect to those Securities sold in reliance
on Regulation S, (A) none of the Company, its Affiliates or
any person acting on its or their behalf (other than the
Initial Purchasers, as to whom the Company makes no
representation) has engaged or will engage in any directed
selling efforts within the meaning of Regulation S and (B)
each of the Company and its Affiliates and any person acting
on its or their behalf (other than the Initial Purchasers,
as to whom the Company makes no representation) has complied
and will comply with the offering restrictions requirements
of Regulation S.
The Company acknowledges that the Initial Purchasers,
and, for purposes of the opinions to be delivered to the Initial
Purchasers pursuant to Section 8 hereof, counsel to the Company
and counsel to the Initial Purchasers will rely upon the accuracy
and truth of the foregoing representations and the Company hereby
consents to such reliance.
4. Purchase and Sale. On the basis of the representations and
-----------------
warranties herein contained, and subject to the terms and
conditions herein set forth, the Company agrees to sell to the
Initial Purchasers, and each of the Initial Purchasers severally
and not jointly agrees to purchase from the Company, at the time
and place herein specified, the principal amount of the
Securities set forth opposite the name of such Initial Purchaser
in Schedule I attached hereto, at a purchase price equal to
______% of the principal amount thereof.
5. Time and Place of Closing. Delivery of the Securities
-------------------------
against payment therefor by wire transfer in federal funds shall
be made at the office of _____________________, __ _________, at
_________,_____ Time, on __________, ____, or at such other
place, time and date as shall be agreed upon in writing by the
Company and the Initial Purchasers. The hour and date of such
delivery and payment are herein called the "Closing Date". The
Securities shall be delivered to the Initial Purchasers, or as
<PAGE>
directed by the Initial Purchasers, in fully registered form in
such denominations of $_____ and in integral multiples of $_____
in excess thereof and registered in such names as the Initial
Purchasers shall reasonably request in writing not later than the
close of business on the second business day prior to the Closing
Date, or, to the extent not so requested, registered in the names
of the Initial Purchasers in such authorized denominations as the
Company shall determine. The Company agrees to make the
Securities available to the Initial Purchasers for checking
purposes not later than ______A.M., ________ Time, on the last
business day preceding the Closing Date at the office of
________________________________________.
6. Covenants of the Company. The Company agrees with the
------------------------
Initial Purchasers as follows:
a. To advise the Initial Purchasers (i) of the
issuance by any state securities commission of any stop
order suspending the qualification or exemption from
qualification of any of the Securities for offering or sale,
or the initiation of any proceeding by any state securities
commission or any other federal or state regulatory
authority for such purpose and (ii) of the happening of any
event during the period referred to in Section 6(c) below
that makes any statement of a material fact made in the
Offering Memorandum untrue or that requires any additions to
or changes in the Offering Memorandum in order to make the
statements therein, in light of the circumstances under
which they were made, not misleading. The Company shall use
its best efforts to prevent the issuance of any stop order
or order suspending the qualification or exemption of any of
the Securities under any state securities or blue-sky laws
and, if at any time any state securities commission or other
federal or state regulatory authority shall issue an order
suspending the qualification or exemption of any of the
Securities under any state securities or blue-sky laws, the
Company shall use its best efforts to obtain the prompt
withdrawal or lifting of such order.
b. To furnish the Initial Purchasers as many copies
of the Offering Memorandum, and any amendments or
supplements thereto, as the Initial Purchasers may
reasonably request. Subject to the Initial Purchasers'
compliance with its representations and warranties and
agreements set forth in Section 7 hereof, the Company
consents to the use of the Offering Memorandum, and any
amendments and supplements thereto required pursuant hereto,
by the Initial Purchasers in connection with Exempt Resales.
c. If, during such period (not exceeding the nine
month period following the date of this Agreement) as in the
opinion of counsel for the Initial Purchaser an Offering
Memorandum is required by law to be delivered in connection
with Exempt Resales by the Initial Purchasers, any event
relating to or affecting the Company or of which the Company
shall be advised in writing by the Initial Purchasers shall
occur which, in the Company's reasonable opinion, should be
set forth in a supplement to, or an amendment of, the
Offering Memorandum in order to make the Offering Memorandum
not misleading in the light of the circumstances when such
<PAGE>
Offering Memorandum is delivered to an Eligible Purchaser,
the Company will, at its expense, prepare an appropriate
amendment or supplement to such Offering Memorandum so that
the Offering Memorandum, as so amended or supplemented, will
not contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the
statements therein, in light of the circumstances when the
Offering Memorandum is delivered to an Eligible Purchaser,
not misleading; provided that should such event relate
solely to the activities of any Initial Purchaser, then such
Initial Purchaser shall assume the expense of preparing and
furnishing any such amendment or supplement. In case any
Initial Purchaser is required to deliver an Offering
Memorandum after the expiration of nine months from the date
of this Agreement, the Company, upon such Initial
Purchaser's request, will furnish to the Initial Purchaser,
at such Initial Purchaser's expense, a reasonable quantity
of any such amendment or supplement referred to in this
Section 6(c).
d. To furnish such proper information as may be
lawfully required and otherwise cooperate in qualifying the
Securities for offer and sale to the Initial Purchasers and
pursuant to Exempt Resales under the blue-sky laws of such
jurisdictions as the Initial Purchasers may designate,
provided that the Company shall not be required to register
or qualify as a foreign corporation or dealer in securities,
to file any consents to service of process under the laws of
any jurisdiction, or to meet any other requirements deemed
by the Company to be unduly burdensome.
e. So long as any of the Securities remain
outstanding and during any period in which the Company is
not subject to Section 13 or 15(d) of the Exchange Act, to
make available to any holder of Securities in connection
with any sale thereof and any prospective purchaser of such
Securities from such holder, the information ("Rule 144A
Information") required by Rule 144A(d)(4) under the
Securities Act.
f. To obtain the approval of the Depositary Trust
Company ("DTC") for "book-entry" transfer of the Securities
of each series, and to comply with all of its agreements set
forth in the representation letter of the Company to DTC
relating to the approval of the Securities by DTC for "book-
entry" transfer.
g. Not to sell, offer for sale or solicit offers to
buy or otherwise negotiate in respect of any security (as
defined in the Securities Act) that would be integrated with
the sale of the Securities to the Initial Purchasers or
pursuant to Exempt Resales in a manner that would require
the registration of any such sale of the Securities under
the Securities Act.
h. None of the Company, its Affiliates or any person
acting on its or their behalf (other than the Initial
Purchasers) will engage in any directed selling efforts (as
that term is defined in Regulation S under the Securities
Act) with respect to the Securities sold pursuant to
Regulation S, and the Company and its Affiliates and each
person acting on its or their behalf (other than the Initial
<PAGE>
Purchasers) will comply with the offering restrictions of
Regulation S with respect to those Securities sold pursuant
thereto.
i. Until the expiration of two years after the
original issuance of the Securities, the Company will not,
and will cause its Affiliates not to, purchase or agree to
purchase or otherwise acquire any Securities which are
"restricted securities" (as such term is defined in Rule
144(a)(3) under the Securities Act), whether as beneficial
owner or otherwise (except as agent acting as a securities
broker on behalf of and for the account of customers in the
ordinary course of business in unsolicited broker's
transactions) unless, promptly upon any such purchase, the
Company or any Affiliate shall submit such Securities to the
Trustee for cancellation.
7. Initial Purchaser's Representations and Warranties. Each
--------------------------------------------------
Initial Purchaser represents and warrants to and agrees with the
Company, that:
a. It is a QIB or an Institutional Accredited
Investor, with such knowledge and experience in financial
and business matters as is necessary in order to evaluate
the merits and risks of an investment in the Securities.
b. It is not acquiring the Securities with a view to
any distribution (as such term is used under the Securities
Act) thereof or with any present intention of offering or
selling any of the Securities in a transaction that would
violate the Securities Act or the securities laws of any
state of the United States or any other applicable
jurisdiction.
c. It agrees that no form of general solicitation or
general advertising (within the meaning of Regulation D
under the Securities Act) has been or will be used by it or
any of its representatives in connection with the offer and
sale of the Securities pursuant hereto, including, but not
limited to, articles, notices or other communications
published in any newspaper, magazine or similar medium or
broadcast over television or radio, or any seminar or
meeting whose attendees have been invited by any general
solicitation or general advertising.
d. It agrees that, in connection with Exempt Resales,
it will solicit offers to buy the Securities only from, and
will offer to sell the Securities only to, Eligible
Purchasers that agree that (x) the Securities purchased by
them may be resold, pledged or otherwise transferred only
(I) to the Company, (II) to a person whom the seller
reasonably believes is a QIB purchasing for its own account
or for the account of a QIB in a transaction meeting the
requirements of Rule 144A under the Securities Act, (III) in
an offshore transaction (as defined in Rule 902 under the
Securities Act) meeting the requirements of Rule 904 of the
Securities Act, (IV) in a transaction meeting the
requirements of Rule 144 under the Securities Act, (V) to an
Institutional Accredited Investor that, prior to such
transfer, furnishes the Trustee a signed letter
(substantially in the form of Appendix I to the Offering
----------
Memorandum) and, if such transfer is in respect of an
<PAGE>
aggregate principal amount of Securities less than $100,000,
an opinion of counsel acceptable to the Company that such
transfer is in compliance with the Securities Act, (VI) in
accordance with another exemption from the registration
requirements of the Securities Act (and based upon an
opinion of counsel acceptable to the Company) or (VII)
pursuant to an effective registration statement and, in each
case, in accordance with the applicable securities laws of
any state of the United States or any other applicable
jurisdiction and (y) they will deliver to each person to
whom such Securities or an interest therein is transferred a
notice substantially to the effect of the foregoing.
e. It agrees that it will not offer, sell or deliver
any of the Securities in any jurisdiction outside the United
States, except pursuant to Regulation S under the Securities
Act.
The Initial Purchasers acknowledge that the Company
and, for purposes of the opinions to be delivered to the Initial
Purchasers pursuant to Section 8 hereof, counsel to the Company
and counsel to the Initial Purchasers will rely upon the accuracy
and truth of the foregoing representations and the Initial
Purchasers hereby consent to such reliance.
8. Conditions of the Initial Purchasers' Obligations. The
-------------------------------------------------
obligations of the Initial Purchasers to purchase and pay for the
Securities shall be subject to the accuracy of the rep-
resentations and warranties made herein on the part of the
Company, to the performance by the Company of its obligations to
be performed hereunder prior to the Closing Date, and to the
following conditions:
a. The Company shall have furnished to the Initial
Purchaser the opinion of _________________, the Counsel of
the Company, dated the Closing Date, to the effect that:
(i) the Company is a corporation duly organized and
validly existing and in good standing under the laws of
Missouri and has due corporate power and authority to
own its properties and conduct its business as
described in the Offering Memorandum Prospectus, and is
duly qualified to conduct in __________ the businesses
in which it is engaged in those States, which are the
only States in which it is required to be so
qualified;
(ii) the Company has full power and authority to
execute the Indenture and to issue the Securities
thereunder, and the Indenture has been duly authorized,
executed and delivered by the Company, and constitutes
a valid and legally binding instrument by the Company
enforceable against the Company in accordance with its
terms;
(iii) the Securities and the Indenture have been duly
authorized, executed and issued by the Company and,
assuming due authentication thereof by the Trustee and
<PAGE>
upon payment for and delivery of the Securities in
accordance with the terms of this Agreement, they will
constitute valid and legally binding obligations of the
Company enforceable against the Company in accordance
with their terms and entitled to the benefits of the
Indenture;
(iv) the Company has full power and authority to
execute this Agreement and this Agreement has been duly
authorized, executed and delivered by the Company;
(v) the execution and delivery of the Indenture, the
Securities and this Agreement, and the fulfillment of
the terms thereof and hereof by the Company, will not
result in a breach of any of the terms or provisions
of, or constitute a default under any provision of, the
Company's articles of incorporation or by-laws or any
indenture, mortgage, deed of trust or other agreement
or instrument, of which such counsel has knowledge, to
which the Company is now a party or, to the best of
such counsel's knowledge, any order, rule or
regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its
activities or properties;
(vi) the provisions of the Securities and the Indenture
conform in all material respects as to legal matters to
the statements concerning them contained in the
Offering Memorandum under "______________" and
"________________________________________";
(vii) the franchises, permits and licenses under which
the Company operates in the States of Missouri,
________ and _____are adequate to permit the Company to
engage in the businesses which it presently conducts in
those States and do not contain any unduly burdensome
provisions; in those municipalities where the Company
operates without franchises or where expired franchises
have not been renewed, the lack of such franchises
does not materially affect the Company's operations
in such municipalities and no actions or proceedings
are pending or, to such counsel's knowledge, threatened
by such municipalities which would materially affect
the Company's operations;
(viii) it is not necessary in connection with the
offer, sale and delivery of the Securities to you and
(assuming such offer, sale and delivery are made in
compliance with the provisions of the Purchase
Agreement and in the manner contemplated by the
Offering Memorandum) to each subsequent purchaser to
register the Securities under the Securities Act or to
qualify the Indenture under the Trust Indenture Act of
1939, as amended; and
(ix) each document filed by the Company or any of its
subsidiaries with the Securities and Exchange
Commission ("Commission") pursuant to the Exchange Act,
<PAGE>
and incorporated by reference in the Offering
Memorandum (except as to the financial statements and
schedules and other financial and statistical data
contained therein, as to which they need not express
any belief), at the time it was filed with the
Commission, complied as to form in all material
respects with the Exchange Act and the applicable
instructions, rules and regulations of the Commission
thereunder.
Such counsel's opinion set forth in paragraphs (ii) and
(iii) above may be subject to the qualifications that the
enforceability of the Company's obligations under the
Indenture and the Securities may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditor's rights generally, by general equitable principles
(regardless of whether such enforceability is considered in
a proceeding in equity or at law) and by an implied covenant
of good faith and fair dealing.
Such opinion shall also state that such counsel has no
knowledge of any litigation, pending or threatened, which
challenges the validity of the Securities, the Indenture, or
this Agreement, or which seeks to enjoin the performance of
the Company's obligations thereunder or which might have a
material adverse effect on the business, properties or
financial condition of the Company except as disclosed in or
contemplated by the Offering Memorandum.
In rendering such opinion, such counsel may rely as to
factual matters upon certificates or written statements from
others or other appropriate representatives of the Company
or upon certificates of public officials. In such opinion,
such counsel may state that while such counsel has examined
the Offering Memorandum, such counsel necessarily assumes
the correctness and completeness of the statements made and
information included therein and takes no responsibility
therefor, except insofar as such statements relate to such
counsel and as set forth in paragraph (vii) above.
Such counsel's opinion may further state that it is
addressed to the Initial Purchasers and is rendered solely
for their benefit and may not be relied upon in any manner
by any other person (other than _______________________ to
the extent stated in its opinion to the Initial Purchasers
as of the Closing Date) without such counsel's prior written
consent.
b. The Initial Purchasers shall have received from
____________, counsel for the Initial Purchasers, such
opinion or opinions, dated the Closing Date, with respect to
the issuance and sale of the Securities, the Indenture, the
Offering Memorandum (together with any supplement thereto)
and other related matters as the Initial Purchaser may
reasonably require, and the Company shall have furnished to
such counsel such documents as they request for the purpose
of enabling them to pass upon such matters.
c. The Company shall have furnished to the Initial
Purchasers a certificate of the Company, signed by the
Chairman of the Board or the President and the principal
financial or accounting officer of the Company, dated the
Closing Date, to the effect that the signers of such
<PAGE>
certificate have carefully examined the Offering Memorandum,
and this Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect
as if made on the Closing Date and the Company has complied
with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the
Closing Date; and
(ii) since the date of the most recent financial
statements included in the Offering Memorandum (exclusive of
any supplement thereto), there has been no material adverse
change in the condition (financial or other), earnings,
business or properties of the Company, whether or not
arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the
Offering Memorandum (exclusive of any supplement thereto).
d. At the Closing Date, ________________, independent
accountants shall have furnished to the Initial Purchasers a
letter or letters, dated as of the Closing Date, in form and
substance satisfactory to you, containing statements and
information of the type ordinarily included in accountants'
" comfort letters" to underwriters with respect to the
financial statements and certain financial information
contained in or incorporated by reference into the Offering
Memorandum.
e. Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Offering
Memorandum, there shall not have been (i) any change or
decrease specified in the letter or letters referred to in
paragraph (d) of this Section 8 or (ii) any change, or any
development involving a prospective change, in or affecting
the business or properties of the Company the effect of
which is, in the judgment of the Initial Purchasers, so
material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Offering Memorandum.
f. Prior to the Closing Date, the Company shall have
furnished to the Initial Purchasers such further
information, certificates and documents as the Initial
Purchasers may reasonably request.
If any of the conditions specified in this Section 8 shall
not have been fulfilled in all material respects when and as
provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall
not be in all material respects reasonably satisfactory in form
and substance to the Initial Purchasers and counsel for the
Initial Purchasers, this Agreement and all obligations of the
Initial Purchasers hereunder may be canceled at, or at any time
prior to, the Closing Date by the Initial Purchasers. Notice of
such cancellation shall be given to the Company in writing or by
telephone or electronic transmittal confirmed in writing.
9. Reimbursement of Initial Purchasers' Expenses. If the sale
----------------------------------------------
of the Securities provided for herein is not consummated because
any condition to the obligations of the Initial Purchasers set
forth in Section 8 hereof is not satisfied, because of any
termination pursuant to Section 11 hereof or because of any
<PAGE>
refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the Initial
Purchasers, the Company will reimburse the Initial Purchasers
severally upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have
been incurred by them in connection with the proposed purchase
and sale of the Securities.
10. Indemnification and Contribution.
---------------------------------
a. The Company agrees to indemnify and hold harmless
each Initial Purchaser, the directors, officers, employees
and agents of each Initial Purchaser and each person who
controls any Initial Purchaser within the meaning of either
the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Securities
Act, the Exchange Act or other Federal or state statutory
law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact
contained in the Offering Memorandum, or arise out of or are
based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary
to make the statements therein not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any
legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss,
claim, damage, liability or action, provided, however, that
the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written
information furnished to the Company by any Initial
Purchaser specifically for inclusion therein. This
indemnity agreement will be in addition to any liability
which the Company may otherwise have.
b. Each Initial Purchaser severally agrees to indemnify
and hold harmless the Company, each of its directors, each
of its officers, and each person who controls the Company
within the meaning of either the Securities Act or the
Exchange Act, to the same extent as the foregoing indemnity
from the Company to each Initial Purchaser, but only with
reference to written information relating to such Initial
Purchaser furnished to the Company by or on behalf such
Initial Purchaser, specifically for inclusion in the
documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability
which any Initial Purchaser may otherwise have. The Company
acknowledges that the statements set forth in
__________________ under the caption "____________" in the
Offering Memorandum constitute the only information
furnished in writing by the Initial Purchasers for inclusion
in the documents referred to in the foregoing indemnity, and
you, as the Initial Purchaser, confirm that such statements
are correct.
c. Promptly after receipt by an indemnified party under
this Section 10 of notice of the commencement of any action,
such indemnified party will, if a claim in respect thereof
is to be made against the indemnifying party under this
Section 10, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the
<PAGE>
indemnifying party (i) will not relieve it from liability
under paragraph (a) or (b) above unless and to the extent it
did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of
substantial rights and defenses; and (ii) will not, in any
event, relieve the indemnifying party from any obligations
to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of
the indemnifying party's choice at the indemnifying party's
expense to represent the indemnified party in any action for
which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for
the fees and expenses of any separate counsel retained by
the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory
to the indemnified party. Notwithstanding the indemnifying
party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall
have the right to employ separate counsel (including local
counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel
if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such
counsel with a conflict of interest; (ii) the actual or
potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or
additional to those available to the indemnifying party;
(iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of
the institution of such action; or (iv) the indemnifying
party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party.
An indemnifying party will not, without the prior written
consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless
such settlement, compromise or consent includes an
unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or
proceeding.
d. In the event that the indemnity provided in
paragraph (a) or (b) of this Section 10 shall be
unenforceable under the applicable law, the Company and the
Initial Purchasers agree to contribute to the aggregate
losses, claims, damages and liabilities (including legal or
other expenses reasonably incurred in connection with
investigating or defending same)(collectively "Losses") to
which the Company and one or more of the Initial Purchasers
may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company and
by the Initial Purchasers from the offering of the
Securities. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the
Company and the Initial Purchasers shall contribute in such
proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company
and of the Initial Purchasers in connection with the
statements or omissions which resulted in such Losses as
well as any other relevant equitable considerations.
Benefits received by the Company shall be deemed to be equal
to the total net proceeds from the offering (before
<PAGE>
deducting expenses), as set forth on the cover page of the
Offering Memorandum. Relative fault shall be determined by
reference to, among other things, whether any alleged untrue
statement of a material fact or omission to state a material
fact relates to information provided by such indemnifying
party or the indemnified party and each such party's rela-
tive intent, knowledge, access to information and oppor-
tunity to correct or prevent such untrue statement or
omission. The Company and the Initial Purchasers agree that
it would not be just and equitable if contributions were
determined by pro rata allocation or any other method of
allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section
10, each person who controls an Initial Purchaser within the
meaning of either the Securities Act or the Exchange Act and
each director, officer, employee and agent of an Initial
Purchaser shall have the same rights to contribution as
such Initial Purchaser, and each person who controls the
Company within the meaning of either the Securities Act or
the Exchange Act, and each director of the Company shall
have the same rights to contribution as the Company, subject
in each case to the applicable terms and conditions of this
paragraph (d). The obligations of the Initial Purchasers to
contribute hereunder are several in proportion to their
respective obligations and not joint.
11. Termination. This Agreement shall be subject to termination
------------
in the absolute discretion of the Initial Purchasers, by notice
given to the Company prior to delivery of and payment for the
Securities, if prior to such time (i) trading in the Company's
Common Stock shall have been suspended by the Commission or the
New York Stock Exchange or trading in securities generally on the
New York Stock Exchange shall have been suspended or limited or
minimum prices shall have been established on such Exchange;
(ii) a banking moratorium shall have been declared by Federal,
Missouri or New York State authorities; or (iii) there shall have
occurred any outbreak or escalation of hostilities, declaration
by the United States of a national emergency or war or other
calamity or crisis the effect of which on financial markets is
such as to make it, in the judgment of the Initial Purchasers,
impracticable or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Offering
Memorandum.
12. Representations and Indemnities to Survive. The respective
-------------------------------------------
agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Initial
Purchasers set forth in or made pursuant to this Agreement shall
remain in full force and effect, regardless of any investigation
made by or on behalf of any Initial Purchaser or the Company or
any of the officers, directors or controlling persons referred to
in Section 10 hereof, and shall survive delivery of and payment
for the Securities. The provisions of Sections 9 and 10 hereof
shall survive the termination or cancellation of this Agreement.
13. Notices. All communications hereunder shall be in writing
--------
and effective only on receipt, and, if sent to an Initial
Purchaser, will be mailed, delivered or electronically
<PAGE>
transmitted and confirmed, to such Initial Purchaser at the
address set forth above; or, if sent to the Company, shall be
mailed, delivered or electronically transmitted it at 1901
Chouteau Avenue, Post Office Box 149, St. Louis, Missouri 63166;
attention of____________________.
14. Successors. This Agreement shall inure to the benefit of
-----------
and be binding upon the parties hereto and their respective
successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or
corporation, other than the parties hereto and their respective
successors and the controlling persons, directors and officers
referred to in Section 10, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision
herein contained; this Agreement and all conditions and
provisions hereof being intended to be and being for the sole
and exclusive benefit of the parties hereto and their respective
successors and said controlling persons, directors and officers
and for the benefit of no other person, firm or corporation.
No purchaser of any Securities from any Initial Purchaser
shall be deemed to be a successor by reason merely of such
purchase.
15. Applicable Law. The rights and duties of the parties
----------------
hereto under this Agreement shall, pursuant to New York General
Obligations Law Section 5-1401, be governed by the law of the
State of New York.
16. Counterparts. This Agreement may be executed in any number
-------------
of counterparts and by different parties hereto on separate
counterparts, each such counterpart, when so executed and
delivered, shall be deemed to be an original, and all of such
counterparts shall, taken together, constitute one and the same
agreement.
<PAGE>
By signature below in the space provided below for that
purpose, each Initial Purchaser indicates acceptance hereof,
whereupon this letter and acceptance shall constitute a binding
agreement between the Company and the several Initial Purchasers
in accordance with its terms.
Very truly yours,
AMEREN CORPORATION
By:
-------------------------------
Name:
Title:
Accepted and delivered as of
the date first above written
[Names of Initial Purchasers]
By:
-------------------------------
Name:
Title:
<PAGE>
Schedule I
----------
Ameren Corporation
_____% Series _ Senior Notes due ____
Principal Amount
Initial Purchaser Securities
----------------- ----------
_____________________ . . . . $___________
_____________________ . . . . $___________
$
TOTAL . . . . . . . . . ===========
<PAGE>
