(As filed March 12, 1999)
File No. 70-9397
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------------------------------------
Amendment No. 3
on
FORM U-1/A
APPLICATION OR DECLARATION
UNDER THE
PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
---------------------------------------------------------
New Century Energies, Inc.
Public Service Company of Colorado
Cheyenne Light, Fuel and Power Company
New Century Services, Inc.
WestGas Interstate, Inc.
NC Enterprises, Inc.
New Century International, Inc.
e prime, inc.
PS Colorado Credit Corporation
Natural Fuels Corporation
P.S.R. Investments, Inc.
Green and Clear Lakes Company
1480 Welton, Inc.
The Planergy Group, Inc.
New Century-Cadence, Inc.
1225 17th Street
Denver, Colorado 80202-5533
Southwestern Public Service Company
Quixx Corporation
Utility Engineering Corporation
Tyler at Sixth
Amarillo, Texas 79101
(Names of companies filing this statement and
addresses of principal executive offices)
----------------------------------------------------
New Century Energies, Inc.
(Name of top registered holding company parent)
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<PAGE>
Teresa S. Madden
Controller
New Century Energies, Inc
1225 17th Street, Suite 900
Denver, Colorado 80202-5533
(Name and address of agent for service)
The Commission is requested to send copies of all notices, orders and
communications in connection with this Application or Declaration to:
William M. Dudley, Esq. William T. Baker, Jr., Esq.
New Century Energies, Inc. Thelen Reid & Priest LLP
1225 17th Street, Suite 600 40 West 57th Street
Denver, Colorado 80202-5533 New York, New York 10019
<PAGE>
The Application or Declaration filed in this proceeding on October 22,
1998, as previously amended and restated by Amendment No. 1, dated January 21,
1999, and further amended by Amendment No. 2, dated February 2, 1999, is hereby
further amended, as follows:
1. Item 1.9 - Financing Subsidiaries is amended by adding the following
sentence at the end thereof:
"NCE requests that the Commission reserve jurisdiction over any
transfer of proceeds of financing by any Financing Subsidiary to NCE
pending completion of the record."
2. Item 1.12 - Exemption from "Cost" Rule Under Section 13(b) is
amended by adding the following sentence at the end thereof:
"It is requested that the Commission reserve jurisdiction over the
granting of an exemption from the cost standards of Section 13(b) of
the Act in connection with the sale of goods or services to any
associate company described in subparagraph (v), above, pending
completion of the record."
3. The following exhibits are filed herewith as part of Item 6 -
Exhibits and Financial Statements:
A. Exhibits.
B-1 Form of Commercial Paper Note. (Incorporated by
reference to Exhibit B-1 in File No. 70-9007).
B-2 Form of Standard Purchase Agreement - Common
Stock. (Incorporated by reference to Exhibit B-3
in File No. 70-9007).
B-3 Form of Debentures (included as part of Exhibit B- 5
(Form of Supplemental Indenture)).
B-4 Form of Debenture Indenture.
B-5 Form of Supplemental Indenture.
B-6 Form of Debenture Purchase Agreement.
F Opinion of Counsel.
3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Public Utility Holding Company Act
of 1935, as amended, the undersigned companies have duly caused this statement
filed herein to be signed on their behalf by the undersigned thereunto duly
authorized.
NEW CENTURY ENERGIES, INC.
PUBLIC SERVICE COMPANY OF COLORADO
NEW CENTURY SERVICES, INC.
NC ENTERPRISES, INC.
E PRIME, INC.
GREEN AND CLEAR LAKES COMPANY
THE PLANERGY GROUP, INC.
NEW CENTURY-CADENCE, INC.
SOUTHWESTERN PUBLIC SERVICE COMPANY
By: /s/ Richard C. Kelly
---------------------------------------
Name: Richard C. Kelly
Title: Executive Vice President of
New Century
Energies, Inc.,
Public Service
Company of
Colorado, New
Century Services,
Inc., NC
Enterprises, Inc.,
and Southwestern
Public Service
Company; President
of e prime, inc.;
Treasurer of Green
and Clear Lakes
Company and New
Century-Cadence,
Inc.; and Vice
President of The
Planergy Group,
Inc.
CHEYENNE LIGHT, FUEL AND POWER COMPANY
WESTGAS INTERSTATE, INC.
NEW CENTURY INTERNATIONAL INC.
PS COLORADO CREDIT CORPORATION
1480 WELTON, INC.
P.S.R. INVESTMENTS, INC.
By: /s/ Cathy J. Hart
---------------------------------------
Name: Cathy J. Hart
Title: Secretary
(signatures continued on the next page)
4
<PAGE>
NATURAL FUELS CORPORATION
QUIXX CORPORATION
UTILITY ENGINEERING CORPORATION
By: /s/ Bill D. Helton
---------------------------------------
Name: Bill D. Helton
Title: Chairman of the Board
Date:March 12, 1999
5
<PAGE>
EXHIBIT B-4
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NEW CENTURY ENERGIES, INC.,
AS ISSUER
TO
[ ],
AS TRUSTEE
----------------------
INDENTURE
SENIOR DEBT SECURITIES
DATED AS OF ,
----------------------
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<PAGE>
NEW CENTURY ENERGIES, INC.
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of _______________, ____
Trust Indenture Indenture Section
Act Section
Section 310(a)(1)......................................... 609
(a)(2)......................................... 609
(a)(3)......................................... Not Applicable
(a)(4)......................................... Not Applicable
(a)(5)......................................... 609
(b)............................................ 608, 610
Section 311(a)............................................ 613
(b)............................................ 613
Section 312(a)............................................ 701, 702(a)
(b)............................................ 702(b)
(c)............................................ 702(c)
Section 313(a)............................................ 703(a)
(b)............................................ Not Applicable
(c)............................................ 703(a)
(d)............................................ 703(b)
Section 314(a)............................................ 704
(b)............................................ Not Applicable
(c)(1)......................................... 102
(c)(2)......................................... 102
(c)(3)......................................... Not Applicable
(d)............................................ Not Applicable
(e)............................................ 102
Section 315(a)............................................ 601(a)
(b)............................................ 602
(c)............................................ 601(b)
(d)............................................ 601(c)
(d)(1)......................................... 601(a), 601(c)
(d)(2)......................................... 601(c)
(d)(3)......................................... 601(c)
(e)............................................ 514
Section 316(a)(last sentence) ............................ 101
(a)(1)(A)...................................... 512
(a)(1)(B)...................................... 502, 513
(a)(2)......................................... Not Applicable
(b)............................................ 508
Section 317(a)(1)......................................... 503
(a)(2)......................................... 504
(b)............................................ 1006
Section 318(a)............................................ 107
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NOTE: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of this Indenture.
<PAGE>
TABLE OF CONTENTS
Page
RECITALS OF THE COMPANY........................................................1
ARTICLE ONE
Definitions and other Provisions
of General Application
SECTION 101. Definitions.......................................................1
ACT ......................................................................2
AFFILIATE.................................................................2
AUTHENTICATING AGENT......................................................2
BANKRUPTCY LAW............................................................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
COVENANT DEFEASANCE.......................................................3
CUSTODIAN.................................................................3
DEFAULT ..................................................................3
DEFAULTED INTEREST........................................................3
DEFEASANCE................................................................3
DEPOSITORY................................................................3
DOLLARS and $.............................................................4
EVENT OF DEFAULT..........................................................4
EXCHANGE ACT..............................................................4
GAAP .....................................................................4
GLOBAL SECURITY...........................................................4
HOLDER or SECURITY HOLDER.................................................4
INDENTURE.................................................................4
INTEREST .................................................................4
INTEREST PAYMENT DATE.....................................................4
MATURITY .................................................................4
OFFICER ..................................................................5
OFFICER'S CERTIFICATE.....................................................5
OPINION OF COUNSEL........................................................5
ORIGINAL ISSUE DISCOUNT SECURITY..........................................5
OUTSTANDING...............................................................5
PAYING AGENT..............................................................6
PERIODIC OFFERING.........................................................6
PERSON ...................................................................6
PLACE OF PAYMENT..........................................................7
PREDECESSOR SECURITY......................................................7
REDEMPTION DATE...........................................................7
REDEMPTION PRICE..........................................................7
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Page
REGISTERED SECURITY.......................................................7
REGULAR RECORD DATE.......................................................7
RESPONSIBLE OFFICER.......................................................7
SECURITIES................................................................7
SECURITY REGISTER and SECURITY REGISTRAR..................................7
SPECIAL RECORD DATE.......................................................7
STATED MATURITY...........................................................7
TRANCHE .................................................................8
TRUST INDENTURE ACT.......................................................8
TRUSTEE .................................................................8
U.S. GOVERNMENT OBLIGATIONS...............................................8
VICE PRESIDENT............................................................8
SECTION 102. Compliance Certificates and Opinions..............................9
SECTION 103. Form of Documents Delivered to Trustee............................9
SECTION 104. Acts of Holders..................................................10
SECTION 105. Notices, Etc., to Trustee and Company............................12
SECTION 106. Notice to Holders; Waiver........................................12
SECTION 107. Conflict with Trust Indenture Act................................13
SECTION 108. Effect of Headings and Table of
Contents.........................................................13
SECTION 109. Successors and Assigns...........................................13
SECTION 110. Separability Clause..............................................13
SECTION 111. Benefits of Indenture............................................13
SECTION 112. Governing Law....................................................14
SECTION 113. Legal Holidays...................................................14
SECTION 114. No Recourse Against Others.......................................14
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally..................................................14
SECTION 202. Form of Trustee's Certificate of
Authentication..........................................15
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series.............................15
SECTION 302. Denominations....................................................18
SECTION 303. Execution, Authentication, Delivery and
Dating..................................................19
SECTION 304. Temporary Securities.............................................23
SECTION 305. Registration, Registration of
Transfer and Exchange............................................23
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities.......................................................26
SECTION 307. Payment of Interest; Interest Rights
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Page
Preserved........................................................26
SECTION 308. Persons Deemed Owners............................................28
SECTION 309. Cancellation.....................................................29
SECTION 310. Computation of Interest..........................................29
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture..........................29
SECTION 402. Application of Trust Money.......................................31
ARTICLE FIVE
Remedies
SECTION 501. Events of Default................................................31
SECTION 502. Acceleration of Maturity; Rescission and
Annulment........................................................33
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee...........................................34
SECTION 504. Trustee May File Proofs of Claim.................................35
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities.........................................35
SECTION 506. Application of Money Collected...................................36
SECTION 507. Limitation on Suits..............................................36
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium and Interest..........................37
SECTION 509. Restoration of Rights and Remedies...............................37
SECTION 510. Rights and Remedies Cumulative...................................38
SECTION 511. Delay or Omission Not Waiver.....................................38
SECTION 512. Control by Holders...............................................38
SECTION 513. Waiver of Past Defaults..........................................38
SECTION 514. Undertaking for Costs............................................39
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities of
the Trustee......................................................39
SECTION 602. Notice of Defaults...............................................40
SECTION 603. Certain Rights of Trustee........................................40
SECTION 604. Not Responsible for Recitals or Issuance
of Securities....................................................42
SECTION 605. May Hold Securities..............................................42
SECTION 606. Money Held in Trust..............................................42
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Page
SECTION 607. Compensation and Reimbursement...................................42
SECTION 608. Disqualification; Conflicting Interests..........................43
SECTION 609. Corporate Trustee Required; Eligibility..........................43
SECTION 610. Resignation and Removal; Appointment of
Successor........................................................44
SECTION 611. Acceptance of Appointment by Successor...........................46
SECTION 612. Merger, Conversion, Consolidation or
Succession to Business...........................................47
SECTION 613. Preferential Collection of Claims
Against Company..................................................47
SECTION 614. Appointment of Authenticating Agent..............................47
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and
Addresses of Holders.............................................50
SECTION 702. Preservation of Information;
Communications to Holders........................................50
SECTION 703. Reports by Trustee...............................................52
SECTION 704. Reports by Company...............................................52
ARTICLE EIGHT
Consolidation, Merger, Lease, Sale or Transfer
SECTION 801. When Company May Merge, Etc......................................53
SECTION 802. Opinion of Counsel...............................................54
SECTION 803. Successor Corporation Substituted................................54
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent
of Holders.......................................................54
SECTION 902. Supplemental Indentures with Consent of
Holders..........................................................56
SECTION 903. Execution of Supplemental Indentures.............................58
SECTION 904. Effect of Supplemental Indentures................................58
SECTION 905. Conformity with Trust Indenture Act..............................58
SECTION 906. Reference in Securities to Supplemental
Indentures.......................................................59
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Page
ARTICLE TEN
Covenants
SECTION 1001. Payments of Securities..........................................59
SECTION 1002. Maintenance of Office or Agency.................................59
SECTION 1003. Corporate Existence.............................................60
SECTION 1004. Compliance Certificates.........................................60
SECTION 1005. Commission Reports..............................................60
SECTION 1006. Money for Securities Payments to Be Held
in Trust........................................................61
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Applicability of Article........................................63
SECTION 1102. Election to Redeem; Notice to Trustee...........................63
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed........................................................63
SECTION 1104. Notice of Redemption............................................65
SECTION 1105. Deposit of Redemption Price.....................................66
SECTION 1106. Securities Payable on Redemption Date...........................66
SECTION 1107. Securities Redeemed in Part.....................................67
ARTICLE TWELVE
Sinking Funds
SECTION 1201. Applicability of Article........................................67
SECTION 1202. Satisfaction of Sinking Fund Payments
with Securities.................................................67
SECTION 1203. Redemption of Securities for Sinking
Fund............................................................68
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
SECTION 1301. Applicability of Article; Company's
Option to Effect Defeasance or Covenant
Defeasance......................................................68
SECTION 1302. Defeasance and Discharge........................................69
SECTION 1303. Covenant Defeasance.............................................69
SECTION 1304. Conditions to Defeasance or Covenant
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Page
Defeasance......................................................70
SECTION 1305. Deposited Money and Government
Obligations To Be Held In Trust.................................72
ARTICLE FOURTEEN
Miscellaneous
SECTION 1401. Miscellaneous...................................................73
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<PAGE>
INDENTURE, dated as of , , between NEW CENTURY ENERGIES, INC.,
a corporation duly organized and existing under the laws of the State of
Delaware (herein called the "COMPANY"), having its principal office at 1225 17th
Street, Denver, Colorado 80202, and [ ],
as Trustee (herein called the "TRUSTEE"), having its principal place of
business at [ ].
RECITALS 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
senior debentures, notes or other evidences of indebtedness (herein called the
"SECURITIES"), to be issued in one or more series, authenticated and delivered,
as in this Indenture provided.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
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 the
Securities of any series, without giving priority of any one Security or series
over any other, except as otherwise expressly provided herein, as follows:
ARTICLE ONE
Definitions and other Provisions
of General Application
SECTION 101. Definitions.
-----------
For all purposes of this Indenture, including any indenture
supplemental hereto, except as otherwise expressly provided or unless the
context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
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<PAGE>
(4) the word "INCLUDING" (and with correlative meaning
"INCLUDE") means including, without limiting the generality of, any
description preceding such term; and
(5) 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 Six, are defined in that
Article.
"ACT", when used with respect to any Holder, 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 indirectly,
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, with respect to any Security,
any Person authorized by the Trustee pursuant to Section 614 to act on behalf of
the Trustee to authenticate such Securities.
"BANKRUPTCY LAW" means Title 11, U.S. Code, as in effect from
time to time, or any similar federal or state law for the relief of debtors.
"BOARD OF DIRECTORS" means the board of directors of the
Company; provided, however, that when the context refers to actions or
resolutions of the Board of Directors, then the term "Board of Directors" shall
also mean any duly authorized committee of the Board of Directors of the Company
or Officer authorized to act with respect to any particular matter to exercise
the power of the Board of Directors of the Company.
"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 each Monday, Tuesday,
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<PAGE>
Wednesday, Thursday and Friday which is not a day on which banking institutions
or trust companies in that Place of Payment or other location are authorized or
obligated by law, regulation or executive order to close.
"COMMISSION" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the date on which this Indenture was originally executed, such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act on such date of original execution, then the body
performing such duties at such time.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request
or order signed in the name of the Company by its Chairman of the Board, its
President or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Controller, an Assistant Controller, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
"CORPORATE TRUST OFFICE" means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date hereof is located at [ ].
"COVENANT DEFEASANCE" has the meaning specified in
Section 1303.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"DEFAULT" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"DEFAULTED INTEREST" has the meaning specified in
Section 307.
"DEFEASANCE" has the meaning specified in Section 1302.
"DEPOSITORY" means, with respect to the Securities of any
series, or any Tranche thereof, issuable or issued in whole or in part in the
form of one or more Global Securities, the Person designated as Depository by
the Company pursuant to
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<PAGE>
Section 301, which must be a clearing agency registered under the Exchange Act
until a successor Depository shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depository" shall mean or include
each Person who is then a Depository hereunder, and if at any time there is more
than one such Person, "Depository" shall mean the Depository with respect to the
Securities of that series or Tranche.
"DOLLARS" and "$" means the coin or currency of the United
States of America as at the time of payment is legal tender for the payment of
public and private debt.
"EVENT OF DEFAULT" has the meaning specified in
Section 501.
"EXCHANGE ACT" means the Securities and Exchange Act of 1934
and the rules and regulations promulgated thereunder, in each case as amended
from time to time.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Standards Accounting Board, and as are
applicable to the financial statements of the Company, in each case as of the
date of any computation required hereunder.
"GLOBAL SECURITY" means a Security that evidences all or part
of the Securities of any series, or any Tranche thereof.
"HOLDER" or "SECURITYHOLDER" means, with respect to a
Security, the Person in whose name such Security is registered in the Security
Register (which terms, in the case of a Global Security, mean the Depository
with respect to such Security).
"INDENTURE" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended and
supplemented and includes the terms of particular series of Securities, and any
Tranche thereof, established as contemplated by Section 301.
"INTEREST", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"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
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<PAGE>
installment of principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration, call for
redemption or otherwise.
"OFFICER" means the Chairman of the Board, the Vice Chairman
of the Board, the President, any Vice President, the Treasurer, any Assistant
Treasurer, the Controller, the Secretary or any Assistant Secretary of the
Company.
"OFFICER'S CERTIFICATE" means a certificate signed by
an Officer and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who
may be an employee of or counsel for the Company, and who shall be reasonably
acceptable to the Trustee.
"ORIGINAL ISSUE 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 502.
"OUTSTANDING", when used with respect to any Securities,
means, as of the date of determination, all such Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment
or redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the Company)
in trust or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of such
Securities; provided that, if such Securities are to be redeemed prior
to the Stated Maturity thereof, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made;
(iii) 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 that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company; and
(iv) Securities which have been defeased pursuant to
Section 1302;
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<PAGE>
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder (a) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be that portion of the principal amount
thereof that could be declared to be due and payable upon the occurrence of an
Event of Default and the continuation thereof pursuant to the terms of such
Original Issue Discount Security as of the date of such determination and (b)
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be pro tected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee knows to
be so owned shall be so disregarded. 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; provided,
however, that in no event shall any Security which shall have been delivered to
evidence or secure, in whole or in part, the Company's obligations in respect of
other indebtedness be deemed to be owned by the Company if the principal of such
Security is payable, whether at Stated Maturity or upon mandatory redemption, at
the same time as the principal of such other indebtedness is payable, whether at
Stated Maturity or upon mandatory redemption or acceleration, but only to the
extent such Security does not exceed the principal amount of such other
indebtedness.
"PAYING AGENT" means any Person 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. The Company may act as Paying Agent with
respect to any Securities issued hereunder.
"PERIODIC OFFERING" means an offering of Securities of a
series from time to time any or all of the specific terms of which Securities,
which may be in one or more Tranches, including 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 from time to time subsequent to the initial request for
authentication and delivery of such Securities by the Trustee, all as
contemplated in Section 301.
"PERSON" means any individual, corporation, partner
ship, limited liability corporation, limited liability
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partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"PLACE OF PAYMENT", when used with respect to any Security,
means the place or places where the principal of (and premium, if any) and
interest, if any, on such Security, are payable as specified as contemplated by
Section 301.
"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.
"REGISTERED SECURITY" means any Security issued
hereunder and registered in the Security Register.
"REGULAR RECORD DATE" for the interest payable on any Interest
Payment Date on the Securities means the date specified for that purpose as
contemplated by Section 301.
"RESPONSIBLE OFFICER", when used with respect to the Trustee,
means any officer of the Trustee assigned by the Trustee to administer its
corporate trust matters.
"SECURITIES" has the meaning stated in the first
recital of this Indenture.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the
respective meanings specified in Section 305.
"SPECIAL RECORD DATE" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
"STATED MATURITY", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such installment
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of principal or interest is due and payable (without regard to any provisions
for redemption, prepayment, acceleration, purchase or extension).
"TRANCHE" means a group of Securities which (a) are of the
same series and (b) are identical except as to principal amount and/or date of
issuance.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939,
as amended, as in force at the date as of which this Indenture was executed;
provided, however, that in the event that such Act is amended after such date,
"TRUST INDENTURE ACT" means, to the extent required by such amendment, the Trust
Indenture Act of 1939 as so amended.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
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.
"U.S. GOVERNMENT OBLIGATIONS" means securities which are (i)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed by the full
faith and credit of the United States of America which, in either case, are not
callable or redeemable at the option of the issuer thereof or otherwise subject
to prepayment, and shall also include a depository receipt issued by a New York
Clearing House bank or trust company as custodian with respect to any such U.S.
Government Obligation or a specific payment or interest on or principal of any
such U.S. Government Obligation held by such custodian for the account of the
holder of a depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt or from any amount held by the custodian in
respect of the U.S. Government Obligation or the specific payment of interest on
or principal of the U.S. Government Obligation evidenced by such depository
receipt.
"VICE PRESIDENT", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
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SECTION 102. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, other than an action
permitted by Sections 614 and 704 hereof, the Company shall furnish to the
Trustee an Officer's Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action 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 specifi cally 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 individual signing such
certificate or opinion has read such covenant or condition
and the definitions herein relating thereto;
b. a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
c. a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
d. a statement as to whether, in the opinion of each
such individual, 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.
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Any certificate or opinion of an Officer may be based, insofar
as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such Officer has actual knowledge that the
certificate or opinion or representations with respect to the matters upon which
his certificate or opinion is 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 has actual knowledge that
the certificate or opinion or representations with respect to such matters are
erroneous.
The provisions above requiring that certain persons have
actual knowledge that certain matters or opinions are erroneous shall not be
read to impose any duty of examination or investigation upon such persons.
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.
SECTION 104. Acts of Holders.
---------------
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "ACT" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit or written statement
(which need not be notarized) 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. Where such execution is by a signer
acting in a capacity other than his individual
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capacity, such certificate, affidavit or written statement shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner which the Trustee and the Company deem
sufficient.
(c) The ownership of Registered Securities shall be proved by
the Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security 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) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by Company Order, 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 such record date shall be deemed to be Holders for the
purposes of determining (i) whether Holders of the requisite proportion of
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 such record date
and/or (ii) which Holders may revoke any such Act (notwithstanding subsection
(f) of this Section).
(f) 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.
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SECTION 105. Notices, Etc., to Trustee and Company.
-------------------------------------
Any request, demand, authorization, direction, notice,
consent, 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,
(a) the Trustee by any Holder or by the Company shall
be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee and
received by the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Administrator, or
(b) 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 mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this Indenture, attention:
Secretary, or at any other address previously furnished in writing to
the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
-------------------------
Where this Indenture or any Security provides for notice to
Holders of any event, such notice shall be deemed sufficiently given (unless
otherwise herein or in such Security expressly provided) if in writing and
mailed, first-class postage prepaid, to each Holder affected by such event, at
his address as it appears in the Security Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice. 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 or the validity of the proceedings to which such notice relates.
Where this Indenture or any Security provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be 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.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
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Any request, demand, authorization, direction, notice, consent
or waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
SECTION 107. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Indenture by
any of the provisions of the Trust Indenture Act, such required provision shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or shall be
excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
----------------------------------------
The headings of the Articles and Sections herein and the Table
of Contents are for convenience of reference only and shall not be taken to be
any part of or to control or affect the meaning, construction or effect of
provisions of this Indenture.
SECTION 109. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
-------------------
If any provision of this Indenture or of the Securities, or
the application of any such provision to any Person or circumstance, shall be
held to be invalid, illegal or unenforceable, the remainder of this Indenture or
of the Securities, or the application of such provision to Persons or
circumstances other than those as to whom or which it is invalid, illegal or
unenforceable, shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
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<PAGE>
SECTION 112. Governing Law.
-------------
This Indenture and the Securities shall be governed by and
construed in accordance with the laws (other than the choice of law provisions)
of the State of New York except to the extent that the Trust Indenture Act shall
be 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 in 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 indenture supplemental hereto, Board Resolution or Officer's
Certificate that 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
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, 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.
SECTION 114. No Recourse Against Others.
--------------------------
A director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the Company under
the Securities or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Securityholder, by accepting
a Security, waives and releases all such liability. Such waivers and releases
are part of the consideration for the issuance of the Securities.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
---------------
The definitive Securities of each series shall be in
substantially such form or forms as shall be established pursuant to Section
301, 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
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marks of identification and such legends or endorsements placed thereon as the
Company may deem appropriate and as are not contrary to the provisions of this
Indenture, or as may be required to comply with the rules of any securities
exchange or of any automated quotation or book-entry system, or to conform to
usage, all as may be determined by the officers executing such Securities, as
evidenced by their execution of the Securities.
The Securities of each series shall be issuable in registered
form without coupons. The definitive Securities shall be produced in such manner
as shall be determined by the officers executing such Securities, as evidenced
by their execution thereof.
SECTION 202. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The Trustee's certificate of authentication shall be in
substantially the form set forth below:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
-------------------------------
as Trustee
Dated: ____________ 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 from time to time in one or more
series. There shall be established in or pursuant to a Board Resolution, and set
forth in an Officer's Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series:
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from all
other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and
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delivered under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Sections 304, 305,
306, 906 or 1107);
(3) whether any Securities of the series, or any Tranche
thereof, are to be issuable in global form with or without coupons and,
if so, (i) whether beneficial owners of interests in any such Global
Security may exchange such interests for Securities of such series and
Tranche and of like tenor of any authorized form and denomination and
the circumstances under which any such exchanges may occur, if other
than in the manner provided in Section 305, and (ii) the name of the
Depository with respect to any Global Security;
(4) the date or dates on which the principal of the Securities
of the series, or any Tranche thereof, is payable;
(5) the rate or rates at which the Securities of the 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 any such rate or
rates shall be determined, by reference to an index or other fact or
event ascertainable outside 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, if other than as specified
in Section 307, the Regular Record Date for the interest payable on any
Interest Payment Date 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 and, if applicable to such series
of Securities, or any Tranche thereof, the basis points and United
States Treasury rate(s) and any other rates to be used in calculating
the reset rate;
(6) the place or places where the principal of (and premium,
if any) and interest, if any (if such interest is not to be paid as
specified in Section 307), on Securities of the series, or any Tranche
thereof, shall be payable;
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<PAGE>
(7) the right of the Company, if any, to defer any payment of
principal of or interest on the Securities of the series, or any
Tranche thereof, and the maximum length of any such deferral period;
(8) the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series,
or any Tranche thereof, may be redeemed, in whole or in part, at the
option of the Company, pursuant to any sinking fund or otherwise;
(9) the obligation, if any, of the Company to redeem or
purchase Securities of the series, or any Tranche thereof, pursuant to
any sinking fund or analogous provisions or at the option of a Holder
thereof and the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series,
or any Tranche thereof, shall be redeemed or purchased, in whole or in
part, pursuant to such obligation, and, where applicable, the
obligation of the Company to select the Securities to be redeemed;
(10) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series,
or any Tranche thereof, shall be issuable;
(11) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series, or any Tranche
thereof, which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 502;
(12) additional Events of Default with respect to Securities
of the series, or any Tranche thereof, if any, other than those set
forth herein;
(13) if either or both of Section 1302 and Section 1303 shall
be inapplicable to the Securities of the series, or any Tranche
thereof, (provided that if no such inapplicability shall be specified,
then both Section 1302 and Section 1303 shall be applicable to the
Securities of the series, or any Tranche thereof);
(14) if other than U.S. dollars, the currency or currencies or
units based on or related to currencies in which the Securities of such
series, or any Tranche thereof, shall be denominated and in which
payments or principal of, and any premium and interest on, such
Securities shall or may be payable;
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<PAGE>
(15) additional covenants with respect to Securities of the
series, or any Tranche thereof, if any, other than those set forth
herein;
(16) if other than the Trustee, the identity of the
Registrar and any Paying Agent;
(17) any exceptions to Section 113 or in the definition of
"Business Day" with respect to Securities of the series, or any Tranche
thereof; and
(18) any other terms of the Securities of the series, or any
Tranche thereof (which terms shall not be inconsistent with the
provisions of this Indenture).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to such Board Resolution and set forth in such Officer's Certificate
or in any such indenture supplemental hereto.
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 Board
Resolution, 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 Section 303.
Anything herein to the contrary notwithstanding, the Trustee
shall be under no obligation to authenticate and deliver Securities of any
series the terms of which, established as contemplated by this Section, would
affect the rights, duties, obligations, liabilities or immunities of the Trustee
under this Indenture.
SECTION 302. Denominations.
-------------
The Securities shall be issuable in registered form without
coupons in such denominations as shall be specified as contemplated by Section
301. In the absence of any such provisions with respect to the Securities of any
series, or any Tranche thereof, the Securities of such series or Tranche shall
be issuable in denominations of $1,000 and any integral multiple thereof.
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SECTION 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities shall be executed on behalf of the Company by
its Chairman of the Board, its Vice Chairman of the Board, its President or one
of its Vice Presidents, under its corporate seal reproduced thereon attested by
its Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile. The seal of the Company
may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Securities. Typographical and other
minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any Security that
has been duly authenticated and delivered by the Trustee.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such in dividuals 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.
At any time and from time to time after the original execution
and delivery of this Indenture, the Company may deliver Securities of any
series, executed by the Company, to the Trustee for authentication. Except as
otherwise provided in this Article Three, the Trustee shall thereupon
authenticate and make available for delivery, or cause to be authenticated and
delivered, said Securities to or upon a Company Order, without any further
action by the Issuer; provided, however, that the Trustee shall authenticate and
-------- -------
make available for delivery Securities of such series for original issue from
time to time in the aggregate principal amount established for such series
pursuant to such procedures, acceptable to the Trustee and to such recipients,
as may be specified from time to time by a Company Order. The Stated Maturity,
original issue dates, interest rates and any other terms of the Securities of
such series, or any Tranche thereof, shall be determined by or pursuant to such
Company Order and procedures. If provided for in such procedures, such Company
Order may authorize authentication and delivery pursuant to oral instructions
from the Company or its duly authorized agent, which instructions shall be
promptly confirmed in writing.
In authenticating the Securities of such series and accepting
the responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, prior to the initial authentication of the
Securities of such series, and (subject to Section 601) shall be fully protected
in relying upon:
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<PAGE>
(1) a Board Resolution relating thereto certified by
the Secretary or Assistant Secretary of the Company;
(2) an Officer's Certificate or an executed supplemental
indenture setting forth the terms of such Securities as provided in
Section 301;
(3) an Officer's Certificate which shall state that all
conditions precedent provided for in this Indenture relating to the
issuance of such Securities have been complied with, that no Event of
Default with respect to any series of Securities, or any Tranche
thereof, has occurred and is continuing and that the issuance of such
Securities does not constitute and will not result in (i) any Event of
Default or any event or condition, which, upon the giving of notice or
the lapse of time or both, would become an Event of Default or (ii) any
default under the provisions of any other instrument or agreement by
which the Company is bound; and
(4) an Opinion of Counsel, which shall state:
(a) that 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;
(b) that the term or terms of such Securities have been duly
authorized by the Company and have been established in conformity with
the provisions of this Indenture;
(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company, enforceable in
accordance with their terms, except to the extent enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting the enforcement of
creditors' rights generally and by the effect of general principles of
equity (regardless of whether enforceability is considered in a
proceeding in equity or at law); and
(d) that no consent, approval, authorization, order,
registration or qualification of or with any court or any governmental
agency or body having jurisdiction over the Company is required for the
execution and delivery of such Securities by the Company, except such
as have been obtained
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(except that no opinion need be expressed as to state securities or
Blue Sky laws).
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture in a manner that in the
written opinion of counsel to the Trustee (which counsel may be an employee of
the Trustee) such authentication may not lawfully be made or would involve the
Trustee in personal liability.
Notwithstanding the provisions of Section 301 and of the
immediately preceding paragraph, with respect to Securities of a series subject
to a Periodic Offering, the Trustee shall be entitled to receive the Officer's
Certificate otherwise required pursuant to Section 303(3) and the Opinion of
Counsel required by Section 303(4) only once at or prior to the time of the
first authentication and delivery of such Securities (provided that such Opinion
of Counsel addresses the authentication and delivery of all such Securities) and
that, in lieu of the opinions described in clauses (b) and (c) 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 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) when such Securities shall have been
authenticated and delivered by the Trustee in accordance with
this Indenture and the Company Order or Orders or the
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, such
Securities will constitute valid obligations of the Company
enforceable in accordance with their terms except to the
extent enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws
affecting the enforcement of creditors rights generally and by
the effect of general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity
or at law).
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<PAGE>
With respect to Securities of a series subject to a Periodic
Offering, the Trustee may conclusively rely, as to the authorization by the
Company of any of such Securities, the forms and terms thereof, the validity
thereof and the compliance of the authentication and delivery thereof with the
terms and conditions of this Indenture, upon the Opinion or Opinions of Counsel,
the Officer's Certificate and the certificates and other documents delivered
pursuant to this Section 303 at or prior to the time of the first authentication
and delivery of Securities of such series until any of such opinions,
certificates or other documents have been superseded or revoked or expire by
their terms; provided, however, that any request by the Company to the Trustee
-------- -------
to authenticate and deliver Securities of such series shall constitute a
representation and warranty by the Company that as of the date of such request
the statements made in the most recent Officer's Certificate delivered pursuant
to Section 303(3) are true and correct as if made on and as of the date thereof.
If the Company shall establish pursuant to Section 301 that
the Securities of a series, or any Tranche thereof, are to be issued in the form
of one or more Global Securities, then the Company shall execute and the Trustee
shall, in accordance with this Section and the Company Order with respect to the
authentication and delivery of such series or Tranche, authenticate and deliver
one or more Global Securities that (i) shall be in an aggregate amount equal to
the aggregate principal amount specified in such Company Order, (ii) shall be
registered in the name of the Depository therefor or its nominee, and (iii)
shall be made available for delivery by the Trustee to such Depository or
pursuant to such Depository's instruction.
Each Depository designated pursuant to Section 301 must, at
the time of its designation and at all times while it serves as Depository, be a
clearing agency registered under the Exchange Act and any other applicable
statute or regulation.
Unless otherwise provided for in the form of Security, each
Security shall be dated the date of its authentication and except that any
substitute Security under Section 306 shall be dated so that neither gain nor
loss in interest shall result from any mutilation, destruction, loss or theft of
the relevant Predecessor Security.
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 substan tially in the form provided for
herein executed by the Trustee by manual signature, and such certificate upon
any Security shall be conclusive evidence, and the only evidence, that such
Security
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has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture.
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 make available for delivery, temporary
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may deter mine, as evidenced by their
execution of such Securities.
In the case of Securities of any series, or any Tranche
thereof, such temporary Securities may be in global form, representing all or a
portion of the Outstanding Securities of such series or Tranche.
Except in the case of temporary Securities in global form
(which shall be exchanged in accordance with the provisions of Section 305), if
temporary Securities of any series, or any Tranche thereof, are issued, the
Company will cause definitive Securities of that series or Tranche thereof to be
prepared without unreasonable delay. After the preparation of definitive
Securities of such series, or any Tranche thereof, the temporary Securities of
such series or Tranche shall be exchangeable for definitive Securities of such
series or Tranche thereof upon surrender of the temporary Securities of such
series or Tranche thereof at the office or agency of the Company in a Place of
Payment for that series or Tranche without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series, or any
Tranche thereof, the Company shall execute and the Trustee shall authenticate
and make available for delivery in exchange therefor a like principal amount of
definitive Securities of the same series, or Tranche thereof, of authorized
denominations and of like tenor. Until so exchanged, the temporary Securities of
any series, or any Tranche thereof, shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series, or
any Tranche thereof.
SECTION 305. Registration, Registration of
-----------------------------
Transfer and Exchange.
---------------------
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office and in
any other office or agency of the Company in a Place of Payment being herein
sometimes collectively
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<PAGE>
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 each series, or Tranche thereof, and of registration of
transfers of Securities of each series, or Tranche thereof. The Trustee is
hereby appointed "SECURITY REGISTRAR" for the purpose of registering Securities
and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of
any series or any Tranche thereof, at the office or agency of the Company in the
Place of Payment for that series or Tranche thereof, the Company shall execute,
and the Trustee shall authenticate and make available for delivery, in the name
of the designated transferee or transferees, one or more new Securities of the
same series and Tranche, of any authorized denominations and of a like aggregate
principal amount and Stated Maturity.
At the option of the Holder, Securities of any series or any
Tranche thereof, may be exchanged for other Securities of the same series and
Tranche, of any authorized denominations and of a like aggregate principal
amount and Stated Maturity, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and make available
for delivery, the Securities which the Holder making the exchange is entitled to
receive.
The provisions of Clauses (1), (2), (3) and (4) below shall
apply only to Global Securities:
(1) Each Global Security authenticated under this Indenture
shall be registered in the name of the Depository designated for such
Global Security or a nominee thereof and delivered to such Depository
or a nominee thereof or custodian therefor, and each such Global
Security shall constitute a single Security for all purposes of this
Indenture.
(2) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in whole or in part
may be registered, in the name of any Person other than the Depository
for such Global Security or a nominee thereof unless (A) such
Depository (i) has notified the Company that it is unwilling or unable
to continue as Depository for such Global Security or (ii) has ceased
to be a clearing agency registered under the Exchange Act, or (B) there
shall exist such circumstances, if any, in addition to or in lieu of
the foregoing as have been specified for this purpose as contemplated
by Section 301.
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<PAGE>
(3) Subject to Clause (2) above, any exchange of a Global
Security for other Securities may be made in whole or in part, and all
Securities issued in exchange for a Global Security or any portion
thereof shall be registered in such names as the Depository for such
Global Security shall direct.
(4) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global
Security or any portion thereof, whether pursuant to this Section,
Section 304, 306, 906 or 1107 or otherwise, shall be authenticated and
delivered in the form of, and shall be, a Global Security, unless such
Security is registered in the name of a Person other than the
Depository for such Global Security or a nominee thereof.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided in the Securities to be transferred
or exchanged, 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, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series, or any Tranche thereof, during
a period beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of Securities of that series or Tranche
selected for redemption under Section 1103 and ending at the close of business
on the day of such mailing, or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
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<PAGE>
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 make available for
delivery 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 Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be 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 has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and make available for delivery, 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.
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
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that 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 Tranche thereof, interest on any
Security which is payable, and is
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<PAGE>
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 at the office or agency of any Paying Agent therefor; provided
however, that unless otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, interest on any
Security shall be paid by check mailed to the address of the Person entitled
thereto as such address appears on the Security Register. Except as otherwise
specified in Section 301, the Regular Record Date with respect to Securities of
a series shall mean the close of business on the last day of the calendar month
preceding such Interest Payment Date if such Interest Payment Date is the
fifteenth day of the calendar month and shall mean the close of business on the
fifteenth day of the calendar month preceding such Interest Payment Date if such
Interest Payment Date is the first day of the calendar month, whether or not any
such day is a Business Day.
Any interest on any Security of any series, or Tranche
thereof, 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 relevant 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 (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series or
Tranche thereof (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security
of such series or any Tranche thereof and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Section 307 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
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<PAGE>
after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Securities of such series or any Tranche thereof at
his address as it appears in the Security Register, not less than 10
days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the Persons in
whose names the Securities of such series or any Tranche thereof (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series, or any Tranche thereof, 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 Section
307, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, 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 owner of
such Security for the purpose of receiving payment of principal of (and premium,
if any) and (subject to Section 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.
None of the Company, the Trustee or any agent of the Company
or the Trustee shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership interest
of a Security in global
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<PAGE>
form, or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interest. Notwithstanding the foregoing, with respect to
any Security in global form, nothing herein shall prevent the Company or the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by any Depository
(or its nominee), as a Holder, with respect to such Security in global form or
impair, as between such Depository and owners of beneficial interests in such
Security in global form, the operation of customary practices governing the
exercise of the right of such Depository (or its nominee) as holder of such
Security in global form.
SECTION 309. Cancellation.
------------
All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and shall be promptly cancelled by it. The Company may at any
time deliver to the Trustee for cancellation any Securities previously authenti
cated and delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly per mitted
by this Indenture. All cancelled Securities shall be held by the Trustee and
shall be returned to the Company upon written request.
SECTION 310. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 301
for Securities of any series, or any Tranche thereof, interest, if any, on the
Securities of each series shall be computed on the basis of a 360 day year
consisting of twelve 30-day months and, with respect to any period less than a
full calendar month, on the basis of the actual number of days elapsed during
such period in relation to the deemed 30 days of such month.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall cease to be of further effect (except as
to any surviving rights of registration of transfer or exchange of Securities
herein expressly provided for or in the
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<PAGE>
form of Security for such series or Tranche), when the Trustee, upon Company
Request and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306 and (ii) Securities for
whose payment money or U.S. Government Obligations has theretofore been
deposited in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in Section
1006) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and at
the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited with the
Trustee as trust funds in trust for the purpose (a) money in the necessary
amount or (b) U.S. Government Obligations, the principal of and the interest on
which when due, and without any regard to reinvestment thereof, in the opinion
of an independent accountant, and, in the opinion of the officers of the Company
executing an Officer's Certificate to that effect, will provide moneys which,
together with the moneys, if any, deposited with or held by the Trustee, shall
be sufficient to pay when due the principal of, premium, if any, and interest
due and to become due on said Securities or portions thereof on the Redemption
Date or the Stated Maturity thereof, as the case may be, in trust to pay and
discharge the entire indebtedness on such Securities not theretofore delivered
to the Trustee for cancellation, for principal (and premium, if any) and
interest, if any, to the date of such deposit (in the case of Securities which
have become due and payable) or the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
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<PAGE>
(3) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for herein relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 607, the
obligations of the Company to any Authenticating Agent under Section 614 and, if
money or U.S. Government Obligations shall have been deposited with the Trustee
pursuant to subclause (B) of clause (1) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1006 shall survive.
SECTION 402. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section
1006, all money or U.S. Government Obligations deposited with the Trustee
pursuant to Section 401 shall be held in trust and applied by it, in accordance
with the provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal (and premium, if any) and interest, if any, for whose payment such
money or U.S. Government Obligations has been deposited with or received by the
Trustee.
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.
-----------------
"EVENT OF DEFAULT," wherever used herein with respect to the
Securities of a series means any one of the following events:
(1) failure to pay interest on any Security of that series
when such interest becomes due and payable and such failure continues for a
period of 30 days and the time for payment of such interest has not been
extended; provided, however that if the Company is permitted by the terms of the
Securities of the applicable series to defer the payment in question, the date
on which such payment is due and payable shall be the date on which the Company
is required to make payment following such deferral, if such deferral has been
elected pursuant to the terms of the Securities of that series; or
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<PAGE>
(2) failure to pay principal of (or premium, if any, on) any
Security of that series when the same becomes due and payable at Maturity
(including redemptions under Article Eleven but excluding any failure by the
Company to deposit money with the Trustee in connection with any redemption at
the option of the Company) and the time for payment of such principal (or
premium, if any), has not been extended; provided, however, that if the Company
is permitted by the terms of the Securities of the applicable series to defer
the payment in question, the date on which such payment is due and payable shall
be the date on which the Company is required to make payment following such
deferral, if such deferral has been elected pursuant to the terms of the
Securities of that series; or
(3) the Company fails to observe or perform any of its other
covenants, warranties or agreements in the Securities of that series or in this
Indenture (other than a covenant, agreement or warranty a default in whose
performance or whose breach is elsewhere in this Section specifically dealt with
or which has expressly been included in this Indenture solely for the benefit of
series of Securities other than that series), and the failure to observe or
perform continues for the period and after the notice specified in the last
paragraph of this Section; or
(4) the Company pursuant to or within the meaning of any
Bankruptcy Law (A) commences a voluntary case or proceeding under any Bankruptcy
Law with respect to itself, (B) consents to the entry of a judgment, decree or
order for relief against it in an involuntary case or proceeding under any
Bankruptcy Law, (c) consents to or acquiesces in the institution of bankruptcy
or insolvency proceedings against it, (D) applies for, consents to or acquiesces
in the appointment of or taking possession by a Custodian of the Company or for
any material part of its property, (E) makes a general assignment for the
benefit of its creditors, (F) admits in writing its inability to pay its debts
generally as they become due, or (G) takes any corporate action in furtherance
of or to facilitate, conditionally or otherwise, any of the foregoing; or
(5) (i) a court of competent jurisdiction enters a judgment,
decree or order for relief in respect of the Company in an involuntary case or
proceeding under any Bankruptcy Law which shall (A) approve as properly filed a
petition seeking reorganization, arrangement, adjustment or composition in
respect of the Company, (B) appoint a Custodian of the Company or for any
material part of its property or (c) order the winding-up or liquidation of its
affairs, and such judgment, decree or order shall remain unstayed and in effect
for a period of 60 consecutive days; or (ii) any bankruptcy or insolvency
petition or application is filed, or any bankruptcy or insolvency
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<PAGE>
proceeding is commenced against the Company and such petition, application or
proceeding is not dismissed within 60 days; or (iii) a warrant of attachment is
issued against any material portion of the property of the Company which is not
released within 60 days of service; or
(6) any other Event of Default provided with respect to
Securities of that series as contemplated by Section 301.
A Default under clause (3) above is not an Event of Default
until the Trustee or the Holders of at least 33% in aggregate principal amount
of the Outstanding Securities of that series notify the Company in writing of
the Default and the Company does not cure the Default within 60 days after
receipt of the notice. The notice must specify the Default, demand that it be
remedied and state that the notice is a "Notice of Default". When a Default
under clause (3) above is cured within such 60-day period, it ceases.
SECTION 502. Acceleration of Maturity; Rescission and
----------------------------------------
Annulment.
---------
If an Event of Default with respect to Securities of any
series, (other than an Event of Default specified in clause (4) or (5) of
Section 501) occurs and is continuing, the Trustee by notice in writing to the
Company, or the Holders of at least 33% in aggregate principal amount of the
Outstanding Securities of the affected series by notice in writing to the
Company and the Trustee, may declare the unpaid principal of and accrued
interest, if any, to the date of acceleration (or, if the Securities of that
series, or any Tranche thereof, are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of that series)
on all the Outstanding Securities of that series, to be due and payable
immediately and, upon any such declaration, the Outstanding Securities of that
series (or specified principal amount) shall become and be immediately due and
payable.
If an Event of Default specified in clause (4) or (5) of
Section 501 occurs, all unpaid principal of and accrued interest, if any, on the
Outstanding Securities of all series (or specified principal amount) shall ipso
facto become and be immediately due and payable without any declaration or other
act on the part of the Trustee or any Holder.
The Holders of a majority in principal amount of the
Outstanding Securities of the affected series by notice to the Trustee may
rescind an acceleration and its consequences if (i) all existing Events of
Default, other than the nonpayment of the principal and interest of the
Securities of that series that has become due solely by such declaration of
acceleration, have been
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cured or waived, (ii) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and overdue principal that has
become due otherwise than by such declaration of acceleration have been paid,
(iii) the rescission would not conflict with any judgment or decree of a court
of competent jurisdiction and (iv) all payments due to the Trustee and any
predecessor Trustee under Section 607 have been made.
SECTION 503. Collection of Indebtedness and Suits for
----------------------------------------
Enforcement by Trustee.
----------------------
The Company covenants that if:
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default continues
for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, if any, and, to the
extent that payment of such interest shall be legally enforceable, interest on
any overdue principal (and premium, if any) and on any overdue interest, at the
rate or rates prescribed therefor in such Securities, and, in addition thereto,
such further amount as shall be sufficient to cover the reasonable costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails 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 any Securities occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders thereof 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 secure any other proper remedy.
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<PAGE>
SECTION 504. Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and 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 the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agent and counsel) and
of the Holders allowed in such judicial proceedings, and
(ii) 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
amount due it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
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 505. 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
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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
of the Securities in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article in
respect of the Securities of any series 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 moneys 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 607 applicable to such series;
Second: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest, if any, on the Securities 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 of such series for principal (and premium, if
any) and interest, if any, respectively; and
Third: To the Company.
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section 506. At least fifteen (15) days
before such record date, the Trustee shall mail to each Holder and the Company a
notice that states the record date, the payment date and the amount to be paid.
SECTION 507. Limitation on Suits.
-------------------
No Holder of any series of Securities shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than a majority in principal
amount of the Outstanding Securities of the affected
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series 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;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of the affected series; it
being understood and intended that no one or more of Holders of Securities of
any affected series 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 Holders of Securities of the affected series.
SECTION 508. Unconditional Right of Holders to Receive
-----------------------------------------
Principal, Premium and Interest.
-------------------------------
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Section 307) interest, if any, on such Security on the Stated
Maturity or Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of
such Holder.
SECTION 509. 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 has been
discontinued or abandoned for any reason, or has 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, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding has been instituted.
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SECTION 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities 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 511. 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 512. Control by Holders.
------------------
The Holders of a majority in principal amount of the
Outstanding Securities of any affected series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series, provided that:
(1) such direction shall not be in conflict with any
rule of law or with this Indenture;
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; and
(3) subject to Section 601, the Trustee need not take any
action which might involve the Trustee in personal liability or be unduly
prejudicial to the Holders not joining therein.
SECTION 513. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of
the Outstanding Securities of any affected series may by written notice to the
Trustee on behalf of the Holders of all the Securities of such series waive any
Default or Event of
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Default with respect to such series and its consequences, except
a Default or Event of Default
(1) in respect of the payment of the principal of (or
premium, if any) or interest, if any, on any Security of such
series, or
(2) in respect of a covenant or other provision hereof which
under Article Nine 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 or Event of Default shall
cease to exist and shall be deemed to have been cured, for every purpose of this
Indenture and the Securities of such series; but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereon.
SECTION 514. Undertaking for Costs.
---------------------
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
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 principal
amount of the Outstanding Securities, or to any suit instituted by any Holder
for the enforcement of the payment of the principal of (or premium, if any) or
interest, if any, on any Security on or after the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on or after the
Redemption Date).
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities of the
------------------------------------------
Trustee.
------------------------------------------
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The Trustee hereby accepts the Trusts herein created. The
Trustee further undertakes and agrees, as follows:
(a) Except during the continuance of an Event of Default, the
Trustee's duties and responsibilities under this Indenture shall be governed by
Section 315(a) of the Trust Indenture Act.
(b) In case an Event of Default has occurred and is
continuing, and is known to the Trustee, the Trustee shall exercise the rights
and powers vested in it by this Indenture, and shall use the same degree of care
and skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(c) None of the provisions of Section 315(d) of the Trust
Indenture Act shall be excluded from this Indenture.
SECTION 602. Notice of Defaults.
------------------
Within 30 days after the occurrence of any Default or Event of
Default with respect to any Securities of any series, the Trustee shall give to
all Holders of Securities of that series, as their names and addresses appear in
the Security Register, notice of such Default or Event of Default known to the
Trustee, unless such Default or Event of Default shall have been cured or
waived; provided, however, that, except in the case of a Default or Event of
Default in the payment of the principal of (or premium, if any) or interest, if
any, on any Security or in the payment of any sinking fund installment with
respect to Securities, the Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive committee or directors
or Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the Holders of the affected
Securities.
SECTION 603. Certain Rights of Trustee.
-------------------------
Subject to the provisions of the Trust Indenture Act:
(a) the Trustee may conclusively rely and shall be protected
in acting or refraining from acting 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
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
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Company Order 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 of its selection 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 of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee security or indemnity to its reasonable
satisfaction against the costs, expenses and liabilities which might be incurred
by it in compliance with such request or direction;
(f) prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing or waiving of all
such Events of Default which may have occurred, the Trustee shall not be bound
to make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, approval or other paper or document, or the books and records of
the Company, unless requested in writing to do so by the Holders of a majority
in principal amount of the Outstanding Securities of any series; provided,
however, that if the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it in the making of such
investigation is not, in the opinion of the Trustee, reasonably assured to the
Trustee by the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such costs, expenses or
liabilities as a condition to so proceeding; the reasonable expense of every
such investigation shall be paid by the Company or, if paid by the Trustee,
shall be repaid by the Company upon demand;
(g) 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
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(h) the Trustee shall not be required 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 its rights or powers.
SECTION 604. Not Responsible for Recitals or Issuance of
-------------------------------------------
Securities.
----------
The recitals herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
-------------------
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 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder (including
amounts held by the Trustee as Paying Agent) 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 otherwise
agreed upon in writing with the Company.
SECTION 607. Compensation and Reimbursement.
------------------------------
The Company agrees
(1) to pay to the Trustee from time to time such compensation
for all services rendered by it hereunder as the parties shall agree
from time to time (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the
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Trustee in accordance with any provision of this Indenture (including
the reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability, damage, claim or expense, including taxes
(other than taxes based upon or determined or measured by the income of
the Trustee), incurred without gross negligence or bad faith on its
part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the 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.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(4) or Section
501(5), 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 607 shall survive the discharge
of this Indenture.
SECTION 608. Disqualification; Conflicting Interests.
---------------------------------------
The Trustee shall be disqualified only where such
disqualification is required by Section 310(b) of the Trust Indenture Act.
Nothing shall prevent the Trustee from filing with the Commission the
application referred to in the second to last paragraph of Section 310(b) of the
Trust Indenture Act.
SECTION 609. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under Section 310(a)(1) of the Trust Indenture Act
having a combined capital and surplus of at least $50,000,000 subject to
supervision or examination by federal or State authority. If such corporation
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 corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. Neither the Company nor any Person directly or
indirectly controlling, controlled by, or under common control with the Company
may serve as Trustee. If at any time the
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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 610. 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 611.
(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 611 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.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of
the Trust Indenture Act after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a Security for at
least six months; or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Company
or by any such Holder of a Security who has been a bona fide Holder of
a Security for at least six months; 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, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 315(e) of the
Trust Indenture Act, any
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Holder who has been a bona fide Holder of a Security 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, 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 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
611, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company with
respect to such Securities. 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 611, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself 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) 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.
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SECTION 611. Acceptance of Appointment by Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the 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, 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
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any successor Trustee, such retiring Trustee 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 and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under the Trust Indenture Act.
SECTION 612. Merger, Conversion, Consolidation or Succession
-----------------------------------------------
to Business.
-----------
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against
-----------------------------------------
Company.
-------
The Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship listed in Section 311(b) of
the Trust Indenture Act. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the extent indicated
therein.
SECTION 614. Appointment of Authenticating Agent.
-----------------------------------
At any time when any of the Securities remain Outstanding the
Trustee may appoint an Authenticating Agent or Agents with respect to one or
more series of Securities, or any Tranche thereof, which shall be authorized to
act on behalf of, and subject to the direction of, the Trustee to authenticate
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Securities of such series or Tranche issued 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 of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and subject
to supervision or examination by federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any 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 and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders
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of Securities of the series, or Tranche thereof, with respect to which such
Authenticating Agent will serve, as their names and addresses appear in the
Security Register. 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 Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series or any
Tranche thereof, is made pursuant to this Section, the Securities of such series
or Tranche may have endorsed thereon, in addition to the Trustee's certificate
of authentication, an alternate certificate of authentication in the following
form:
Form of Authenticating Agent's
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____________________________
As Authenticating Agent
______________________________
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
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designated by the Company with respect to such series of
Securities.
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of
-------------------------------------------------
Holders.
-------
The Company will furnish or cause to be furnished to the
Trustee:
(a) semi-annually, not later than January 15 and July 15 in
each year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of the preceding December 15 or June 15,
as the case may be; and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished;
provided, however, that so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
SECTION 702. Preservation of Information; Communications to
----------------------------------------------
Holders.
-------
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 701 and the names
and addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders with respect
to their rights under this Indenture or under the Securities and is accompanied
by a copy of the form of proxy or other communication which such applicants
propose to transmit, then the Trustee shall, within five Business Days after the
receipt of such application, at its election, either
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(i) afford such applicants access to the
information preserved at the time by the Trustee in
accordance with Section 702(a); or
(ii) inform such applicants as to the approximate number
of Holders whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section 702(a),
and as to the approximate cost of mailing to such Holders the form of
proxy or other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder whose name and address appears in the
information preserved at the time by the Trustee in accordance with Section
702(a) a copy of the form of proxy or other communication which is specified in
such request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender the
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interest of the Holders or would be in violation of applicable law. Such written
statement shall specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the written statement
so filed, shall enter an order refusing to sustain any of such objections or if,
after the entry of an order sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for hearing, that all
objections so sustained have been met and shall enter an order so declaring, the
Trustee shall mail copies of such material to all such Holders with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 702(b), regardless of the source from which
such information was derived, and that the Trustee shall not be held accountable
by reason of mailing any material pursuant to a request made under Section
702(b).
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SECTION 703. Reports by Trustee.
------------------
(a) Within 60 days after May 15 of each year commencing with
the year [ ], the Trustee shall transmit by mail to all Holders of Securities as
provided in Section 313(c) of the Trust Indenture Act, a brief report dated as
of May 15, if required by and in compliance with Section 313(a) of the Trust
Indenture Act.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
SECTION 704. Reports by Company.
------------------
The Company shall:
(1) file with the Trustee, within 30 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not required
to file information, documents or reports pursuant to either of said
Sections, then it shall file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations;
(3) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, (a) concurrently with
furnishing the same to its stockholders, the Company's annual report to
stockholders, containing certified financial statements, and any other
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financial reports which the Company generally furnishes to its
stockholders, and (b) within 30 days after the filing thereof with the
Trustee, such summaries of any other information, documents and reports
required to be filed by the Company pursuant to paragraphs (1) and (2)
of this Section as may be required by rules and regulations prescribed
from time to time by the Commission; and
(4) furnish to the Trustee, on or before May 1 of each year, a
brief certificate from the principal executive officer, principal
financial officer or principal accounting officer as to his or her
knowledge of the Company's compliance with all conditions and covenants
under this Indenture. For purposes of this paragraph, such compliance
shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture. Such certificate
need not comply with Section 102.
ARTICLE EIGHT
Consolidation, Merger, Lease, Sale or Transfer
SECTION 801. When Company May Merge, Etc.
----------------------------
The Company shall not consolidate with, or merge with or into
any other corporation (whether or not the Company shall be the surviving
corporation), or sell, assign, transfer or lease all or substantially all of its
properties and assets as an entirety or substantially as an entirety to any
Person or group of affiliated Persons, in one transaction or a series of related
transactions, unless:
(1) either the Company shall be the continuing Person or the
Person (if other than the Company) formed by such consolidation or with
which or into which the Company is merged or the Person (or group of
affiliated Persons) to which all or substantially all the properties
and assets of the Company as an entirety or substantially as an
entirety are sold, assigned, transferred or leased shall be a
corporation (or constitute corporations) organized and existing under
the laws of the United States of America or any State thereof or the
District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of the Company under
the Securities and this Indenture; and
(2) immediately before and after giving effect to such
transaction or series of related transactions, no Event
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of Default, and no Default, shall have occurred and be
continuing.
SECTION 802. Opinion of Counsel.
------------------
The Company shall deliver to the Trustee prior to the proposed
transaction(s) covered by Section 801 an Officer's Certificate and an Opinion of
Counsel stating that the transaction(s) and such supplemental indenture comply
with this Indenture and that all conditions precedent to the consummation of the
transaction(s) under this Indenture have been met.
SECTION 803. Successor Corporation Substituted.
---------------------------------
Upon any consolidation by the Company with or merger by the
Company into any other corporation or any lease, sale, assignment, or transfer
of all or substantially all of the property and assets of the Company in
accordance with Section 801, the successor corporation formed by such
consolidation or into which the Company is merged or the successor corporation
or affiliated group of corporations to which such lease, sale, assignment, or
transfer 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 corporation or corporations had been named as the Company
herein, and thereafter, except in the case of a lease, the predecessor
corporation or corporations shall be relieved of all obligations and covenants
under this Indenture and the Securities and in the event of such conveyance or
transfer, except in the case of a lease, any such predecessor corporation may be
dissolved and liquidated.
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of
------------------------------------------
Holders.
-------
Without notice to or the consent of any Holders, the Company,
when authorized by a Board Resolution, 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:
(1) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
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(2) to add to the covenants of the Company for the benefit of
the Holders of all or one or more specified series of Securities or one
or more specified Tranches thereof (and if such covenants are to be for
the benefit of fewer than all series of Securities or fewer than all
Securities of a Series, stating that such covenants are expressly being
included solely for the benefit of such series or one or more Tranches
of such series) or to surrender any right or power herein conferred
upon the Company; or
(3) to add any additional Events of Default with respect to
all or one or more series of Securities; or
(4) to add or change any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the
issuance of Securities in bearer form, registrable or not registrable
as to principal, and with or without interest coupons; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series
as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b); or
(9) to cure any ambiguity, defect or inconsistency or to
correct or supplement any provision herein which may be defective or
inconsistent with any other provision herein; or
(10) to make any change to the provisions hereof or to add
other provisions with respect to matters or questions arising under
this Indenture; provided that such changes or additions shall not
materially adversely affect the interests of the Holders of Securities
of any series.
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Without limiting the generality of the foregoing, if the Trust
Indenture Act as in effect at the date of the original execution and delivery of
this Indenture or at any time thereafter shall be amended and
(x) if any such amendment shall require one or more
changes to any provisions hereof or the inclusion herein of
any additional provisions, or shall by operation of law be
deemed to effect such changes or incorporate such provisions
by reference or otherwise this Indenture shall be deemed to
have been amended so as to conform to such amendment to the
Trust Indenture Act, and the Company and the Trustee may,
without the consent of any Holders, enter into an indenture
supplemental hereto to evidence such amendment hereof; 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 original execution and delivery
hereof or at any time thereafter, are required by the Trust
Indenture Act to be contained herein or are contained herein
to reflect any provisions of the Trust Indenture Act as in
effect at such date, 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.
Upon request of the Company, accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon receipt
by the Trustee of the documents described in (and subject to the last sentence
of) Section 903, the Trustee shall join with the Company in the execution of any
supplemental indenture authorized or permitted by the terms of this Indenture.
SECTION 902. Supplemental Indentures with Consent of Holders.
-----------------------------------------------
Subject to the provisions of Section 901, with the consent of
the Holders of not less than a majority in aggregate principal amount of the
Securities of all series then Outstanding under this Indenture, considered as
one class, by Act of said Holders delivered to the Company and the Trustee, the
Company 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; 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
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of the Holders of Securities of one or more, but fewer 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 fewer 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 without the consent of each Holder affected thereby:
(1) 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 any premium
payable upon the redemption thereof or extend the time for payment
thereof, or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, or change
any Place of Payment where, or the coin or currency in which, the
principal of any Security or any premium or interest thereon is
payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption Date) or modify the
provisions of the Indenture with respect to the subordination of the
Securities in a manner adverse to any Holder;
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver of compliance with certain
provisions of this Indenture or Defaults or Events of Default hereunder
and their consequences provided for in this Indenture; or
(3) change the redemption provisions (including Article
Eleven) hereof in a manner adverse to such Holder; or
(4) modify any of the provisions of this Section or Section
513, except to increase any such percentage or to provide that certain
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
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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 611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provisions 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, or any Tranche thereof, 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.
SECTION 903. Execution of Supplemental Indentures.
------------------------------------
The Trustee shall sign any supplemental indenture authorized
pursuant to this Article, subject to the last sentence of this Section 903. 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 601) shall be fully protected in relying upon, an Officer's
Certificate and 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 or immunities under this
Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 905. 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.
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SECTION 906. Reference in Securities to Supplemental
---------------------------------------
Indentures.
----------
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
Covenants
SECTION 1001. Payments of Securities.
----------------------
The Company will duly and punctually 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 1002. Maintenance of Office or Agency.
-------------------------------
The Company will maintain an office or agency in each Place of
Payment where Securities of each series, or any Tranche thereof, may be
surrendered for registration of transfer or exchange or for presentation for
payment, and where notices and demands to or upon the Company in respect of such
Securities and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in location, of
such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the address of the Trustee as set forth in Section 105 hereof.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series, or any
Tranche thereof, may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations. The Company will give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.
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The Company hereby initially designates the office of The Bank
of New York as such office of the Company.
SECTION 1003. Corporate Existence.
-------------------
Subject to Article 8 hereof, the Company will do or cause to
be done all things necessary to preserve and keep in full force and effect its
corporate existence.
SECTION 1004. Compliance Certificates.
-----------------------
(a) The Company shall deliver to the Trustee within 90 days
after the end of each fiscal year of the Company (which fiscal year
currently ends on December 31), an Officer's Certificate stating
whether or not the signer knows of any Default or Event of Default by
the Company that occurred prior to the end of the fiscal year and is
then continuing. If the signer does know of such a Default or Event of
Default, the certificate shall describe each such Default or Event of
Default and its status and the specific section or sections of this
Indenture in connection with which such Default or Event of Default has
occurred. The Company shall also promptly notify the Trustee in writing
should the Company's fiscal year be changed so that the end thereof is
on any date other than the date on which the Company's fiscal year
currently ends. The certificate need not comply with Section 102
hereof.
(b) The Company shall deliver to the Trustee forthwith upon
becoming aware of a Default or Event of Default (but in no event later
than 10 days after the occurrence of each Default or Event of Default
that is continuing), an Officer's Certificate setting forth the details
of such Default or Event of Default and the action that the Company
proposes to take with respect thereto and the specific section or
sections of this Indenture in connection with which such Default or
Event of Default has occurred.
SECTION 1005. Commission Reports.
------------------
(a) The Company shall file with the Trustee, within 30 days
after it files them with the Commission, copies of the quarterly and
annual reports and of the information, documents, and other reports (or
copies of such portions of any of the foregoing as the Commission may
by rules and regulations prescribe) which the Company is required to
file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act. If the Company is not subject to the requirement of such
Section 13 or 15(d) of the Exchange Act, the Company shall file with
the Trustee, within 30 days
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after it would have been required to file such information with the
Commission, financial statements, including any notes thereto and, with
respect to annual reports, an auditors' report by an accounting firm of
established national reputation and a "Management's Discussion and
Analysis of Financial Condition and Results of Operations," both
comparable to that which the Company would have been required to
include in such annual reports, information, documents or other reports
if the Company had been subject to the requirements of such Sections 13
or 15(d) of the Exchange Act. The Company also shall comply with the
other provisions of Section 314(a) of the Trust Indenture Act.
(b) So long as the Securities remain outstanding, the Company
shall cause its annual report to stockholders and any other financial
reports furnished by it to stockholders generally, to be mailed to the
Holders at their addresses appearing in the register of Securities
maintained by the Security Registrar in each case at the time of such
mailing or furnishing to stockholders. If the Company is not required
to furnish annual or quarterly reports to its stockholders pursuant to
the Exchange Act, the Company shall cause its financial statements,
including any notes thereto and, with respect to annual reports, an
auditors' report by an accounting firm of established national
reputation and a "Management's Discussion and Analysis of Financial
Condition and Results of Operations," to be so filed with the Trustee
and mailed to the Holders within 90 days after the end of each of the
Company's fiscal years and within 45 days after the end of each of the
first three quarters of each fiscal year.
(c) The Company shall provide the Trustee with a sufficient
number of copies of all reports and other documents and information
that the Company may be required to deliver to the Holders under this
Section 1005.
SECTION 1006. 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 any series of Securities, or any Tranche thereof, it will, on or
before each due date of the principal of (and premium, if any) or interest, if
any, on any of the Securities of that series, or any Tranche thereof, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal (and premium, if any) or interest, if any, so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
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Whenever the Company shall have one or more Paying Agents for
any series of Securities, or any Tranche thereof, it will, prior to each due
date of the principal of (and premium, if any) or interest, if any, on any
Securities of that series, or any Tranche thereof, deposit with a Paying Agent a
sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, if any, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure to so act.
The Company will cause each Paying Agent for any series of
Securities, or any Tranche thereof (other than the Trustee) to execute and
deliver to the Trustee an instrument in which such Paying Agent shall agree with
the Trustee, subject to the provisions of this Section, that such Paying Agent
will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest, if any, on Securities of that
series, or any Tranche thereof, 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;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series, or any Tranche
thereof) in the making of any payment of principal (and premium, if
any) or interest, if any, on the Securities of that series, or any
Tranche thereof; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
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, 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 of any series and
remaining unclaimed for two years after such principal (and premium, if any) or
interest, if any, has become due and payable shall be paid to the Company on
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Company Request, or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, 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 of such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in New York, New York, notice 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 publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. 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 as contemplated by Section 301
for Securities of any series, or any Tranche thereof) in accordance with this
Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of fewer than all the Securities of any series, or any Tranche
thereof, 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 of such Redemption Date and of the principal amount of
Securities to be redeemed. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officer's Certificate evidencing compliance with such
restriction.
SECTION 1103. Selection by Trustee of Securities to Be
----------------------------------------
Redeemed.
--------
If fewer than all the Securities of any series, or any Tranche
thereof, are to be redeemed, and if at the time the Company shall have given
notice of redemption to the Trustee in
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accordance with Section 1102, there shall not be on file with the Trustee and in
effect a Holders' Redemption Agreement, as hereinafter defined and 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, substantially pro rata, by lot or by any other method as the Trustee
considers fair and appropriate and that complies with the requirements of the
principal national securities exchange, if any, on which such Securities are
listed, and which may provide for the selection for redemption of portions
(equal to the minimum authorized denomination for Securities of that series or
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 that series or Tranche; provided that in case the
Securities of such series or Tranche have different terms and maturities, the
Securities to be redeemed shall be selected by the Company and the Company shall
give notice thereof to the Trustee; 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 fewer 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.
If at the time the Company shall have given notice of
redemption to the Trustee in accordance with Section 1102, there shall be on
file with the Trustee and in effect a Holders' Redemption Agreement, as
hereinafter defined, then the Trustee shall select, in accordance with the
provisions of said Holders' Redemption Agreement, the Securities or parts
thereof to be redeemed.
For the purposes of this Indenture, the term "Holders'
Redemption Agreement" shall mean an agreement, reasonably satisfactory to the
Trustee, executed as provided in this Section, which provides for the method to
be followed by the Trustee in selecting Securities or parts of Securities for
redemption out of any funds held by the Trustee to be applied to such
redemption. A Holders' Redemption Agreement may be made with respect to a single
series of Securities, or Tranche thereof, in which case it shall be executed by
or on behalf of the Holders of all Outstanding Securities of such series or
Tranche, or it may be made with respect to all Outstanding Securities, in which
case it shall be executed by or on behalf of the Holders of all Securities
Outstanding hereunder.
The Trustee shall promptly notify the Company and the
Securities Registrar in writing of the Securities selected for
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redemption and, in the case of any Securities selected for partial redemption,
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 the Securities
shall relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
SECTION 1104. Notice of Redemption.
--------------------
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if fewer than all the Outstanding Securities of any series
or Tranche are to be redeemed, the identification (and, in the case of
partial redemption, the principal amounts) of the particular Securities
to be redeemed;
(4) that on the Redemption Date the Redemption Price will be
come due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon, if any, will cease to accrue on and
after said date;
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price;
(6) that the redemption is for a sinking or other
fund, if such is the case;
(7) the CUSIP number, if any, of the Securities to be
redeemed; and
(8) unless otherwise provided as to a particular series of
Securities or any Tranche thereof, if at the time of publication or
mailing of any notice of redemption the Company shall not have
deposited with the Trustee or Paying Agent and/or irrevocably directed
the Trustee or Paying Agent to apply, from money held by it available
to be used for the redemption of Securities, an amount in cash
sufficient to redeem all of the Securities called for redemption,
including accrued interest, if any, to the
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Redemption Date, such notice shall state that it is subject to the
receipt of the redemption moneys by the Trustee or Paying Agent before
the Redemption Date (unless such redemption is mandatory) and such
notice shall be of no effect unless such moneys are so received before
such date.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company. Notice of
mandatory redemption of Securities shall be given by the Trustee in the name and
at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
---------------------------
Prior to 10:00 a.m., New York Time, on any Redemption Date,
the Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1006) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest, if any, on, all the Securities which are to be redeemed on
that date.
SECTION 1106. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, and the
Company having on or before the Redemption Date deposited with the Trustee
(and/or having irrevocably directed the Trustee to apply, from money held by it
available to be used for the redemption of Securities) an amount in cash
sufficient to redeem all of the Securities to be redeemed, the Securities 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 such Securities
shall cease to bear interest. Upon surrender of any such Security for redemption
in accordance with said notice, such Security shall be paid by the Company at
the Redemption Price, together with accrued interest, if any, to the Redemption
Date; provided, however, that installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Regular or Special Record Dates according to
their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate, if any,
prescribed therefor in the Security.
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SECTION 1107. Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part shall be
surrendered at an office or agency of the Company 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), and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new Security or
Securities of the same series and Tranche and Stated Maturity, of any authorized
denomination as requested by such Holder, in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered.
ARTICLE TWELVE
Sinking Funds
SECTION 1201. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a 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 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series, or any Tranche thereof,
as provided for by the terms of Securities of such series, or any Tranche
thereof.
SECTION 1202. Satisfaction of Sinking Fund Payments with
------------------------------------------
Securities.
----------
The Company (1) may deliver Securities of a series, or Tranche
(other than any Securities previously called for redemption) and (2) may apply
as a credit Securities of a series or Tranche which have been redeemed either at
the election of the Company pursuant to the terms of such Securities or through
the
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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 any sinking
fund payment with respect to the Securities of such series or Tranche required
to be made pursuant to the terms of such Securities as provided for by the terms
of such series or Tranche thereof; provided that such Securities have not been
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not fewer than 45 days prior to each sinking fund payment date
for any series of Securities or any Tranche thereof, the Company will deliver to
the Trustee an Officer's Certificate specifying the amount of the next ensuing
sinking fund payment for that series or Tranche pursuant to the terms of that
series or Tranche, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series or Tranche pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. 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 1103 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 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
SECTION 1301. Applicability of Article; Company's Option to
---------------------------------------------
Effect Defeasance or Covenant Defeasance.
----------------------------------------
Unless pursuant to Section 301 provision is made for the
inapplicability of either or both of (a) Defeasance of the Securities of a
series, or any Tranche thereof, under Section 1302 or (b) Covenant Defeasance of
the Securities of a series, or any Tranche thereof, under Section 1303, then the
provisions of such Section or Sections, as the case may be, together with the
other provisions of this Article, shall be applicable to the Securities of such
series or Tranche, and the Company may at its option by Board Resolution, at any
time, with respect to the Securities of such series, or Tranche, elect to have
either
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Section 1302 (unless inapplicable) or Section 1303 (unless inapplicable) be
applied to the Outstanding Securities of such series or Tranche upon compliance
with the applicable conditions set forth below in this Article.
SECTION 1302. Defeasance and Discharge.
------------------------
Upon the Company's exercise of the option provided in Section
1301 to defease the Outstanding Securities of a particular series or Tranche,
the Company shall be discharged from its obligations with respect to the
Outstanding Securities of such series or Tranche on the date the applicable
conditions set forth in Section 1304 are satisfied (hereinafter, "DEFEASANCE").
Defeasance shall mean that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the Outstanding Securities of
such series or Tranche and to have satisfied all its other obligations under
such Securities and this Indenture insofar as such Securities are concerned (and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same); provided, however, that the following rights,
obligations, powers, trusts, duties and immunities shall survive until otherwise
terminated or discharged hereunder: (A) the rights of Holders of Outstanding
Securities of such series or Tranche to receive, solely from the trust fund
provided for in Section 1304, payments in respect of the principal of (and
premium, if any) and interest, if any, on such Securities when such payments are
due, (B) the Company's obligations with respect to such Securities under
Sections 304, 305, 306, 1002 and 1006, (c) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and (D) this Article. Subject to
compliance with this Article, the Company may exercise its option with respect
to Defeasance under this Section 1302 notwithstanding the prior exercise of its
option with respect to Covenant Defeasance under Section 1303 in regard to the
Securities of such series or Tranche.
SECTION 1303. Covenant Defeasance.
-------------------
Upon the Company's exercise of the option provided in Section
1301 to obtain a Covenant Defeasance with respect to the Outstanding Securities
of a particular series, or Tranche thereof, the Company shall be released from
its obligations under this Indenture (except its obligations under Sections 304,
305, 306, 506, 509, 610, 1001, 1002, 1004, 1005 and 1006) with respect to the
Outstanding Securities of such series, or Tranche thereof, on and after the date
the applicable conditions set forth in Section 1304 are satisfied (hereinafter,
"COVENANT DEFEASANCE"). Covenant Defeasance shall mean that, with respect to the
Outstanding Securities of such series, or Tranche thereof, the Company may omit
to comply with and shall have no liability in respect of any term, condition or
limitation set forth in this
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Indenture (except its obligations under Sections 304, 305, 306, 506, 509, 610,
1001, 1002, 1004, 1005 and 1006), whether directly or indirectly by reason of
any reference elsewhere herein or by reason of any reference to any other
provision herein or in any other document, and such omission to comply shall not
constitute an Event of Default under Section 501(3) with respect to Outstanding
Securities of such series, and the remainder of this Indenture and of the
Securities of such series or Tranche shall be unaffected thereby.
SECTION 1304. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions to Defeasance under
Section 1302 and Covenant Defeasance under Section 1303:
(1) the Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 609 who shall agree to
comply with the provisions of this Article applicable to it),
under the terms of an irrevocable trust agreement in form and
substance reasonably satisfactory to such Trustee, as trust
funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Securities, (A)
Dollars in an amount, or (B) U.S. Government Obligations which
through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide,
not later than the due date of any payment, money in an
amount, or (c) a combination thereof, in each case sufficient,
after payment of all federal, state and local taxes or other
charges or assessments in respect thereof payable by the
Trustee, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, (i) the principal of
(and premium, if any, on) and each installment of principal of
(and premium, if any) and interest, if any, on the Outstanding
Securities of such series or Tranche on the Stated Maturity of
such principal or installment of principal or interest and
(ii) any mandatory sinking fund payments or analogous payments
applicable to the Outstanding Securities of such series or
Tranche on the day on which such payments are due and payable
in accordance with the terms of this Indenture and of such
Securities.
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(2) No Default or Event of Default with respect to
the Securities of such series shall have occurred and be
continuing on the date of such deposit or shall occur as a
result of such deposit, and no Default or Event of Default
under clause (4) or (5) of Section 501 hereof shall occur and
be continuing, at any time during the period ending on the
91st day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until the
expiration of such period).
(3) Such deposit, Defeasance or Covenant Defeasance
shall not result in a breach or violation of, or constitute a
default under, any other agreement or instrument to which the
Company is a party or by which it is bound.
(4) Such Defeasance or Covenant Defeasance shall not
cause any Securities of such series, or Tranche thereof, then
listed on any national securities exchange registered under
the Exchange Act to be delisted.
(5) In the case of an election with respect to
Section 1302, the Company shall have delivered to the Trustee
either (A) a ruling directed to the Trustee received from the
Internal Revenue Service to the effect that the Holders of the
Outstanding Securities of such series, or Tranche thereof,
will not recognize income, gain or loss for federal income tax
purposes as a result of such Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such
Defeasance had not occurred or (B) an Opinion of Counsel,
based on such ruling or on a change in the applicable federal
income tax law since the date of this Indenture, in either
case to the effect that, and based thereon such opinion shall
confirm that, the Holders of the Outstanding Securities of
such series, or Tranche thereof, will not recognize income,
gain or loss for federal income tax purposes as a result of
such Defeasance and will be subject to federal income tax on
the same amounts, in the same manner and at the same times as
would have been the case if such Defeasance had not occurred.
(6) In the case of an election with respect to
Section 1303, the Company shall have delivered to the Trustee
an Opinion of Counsel or a ruling directed to the Trustee
received from the Internal Revenue Service to the effect that
the Holders of the Outstanding
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Securities of such series or Tranche thereof will not
recognize income, gain or loss for federal income tax purposes
as a result of such Covenant Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Covenant
Defeasance had not occurred.
(7) Such Defeasance or Covenant Defeasance shall be
effected in compliance with any additional terms, conditions
or limitations which may be imposed on the Company in
connection therewith pursuant to Section 301.
(8) The Company shall have delivered to the Trustee
an Officer's Certificate and an Opinion of Counsel, each
stating that all conditions precedent provided for relating to
either the Defeasance under Section 1302 or the Covenant
Defeasance under Section 1303 (as the case may be) have been
complied with.
SECTION 1305. Deposited Money and Government Obligations To Be
------------------------------------------------
Held In Trust.
-------------
Subject to the provisions of the last paragraph of Section
1006, all money and Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee--collectively for
purposes of this Section 1305, the "Trustee") pursuant to Section 1304 in
respect of the Outstanding Securities of a particular series, or Tranche, shall
be held in trust and applied by the Trustee, in accordance with the provisions
of such Securities and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of such Securities of all sums due
and to become due thereon in respect of principal (and premium, if any) and
interest, if any, but such money need not be segregated from other funds except
to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the Government
Obligations deposited pursuant to Section 1304 or the principal and interest
received in respect thereof, other than any such tax, fee or other charge which
by law is for the account of the Holders of the Outstanding Securities of such
series or Tranche.
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver to pay to the Company from time to time upon Company
Request any money or Government
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<PAGE>
Obligations held by it as provided in Section 1304 which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited for the purpose for
which such money or Government Obligations were deposited.
ARTICLE FOURTEEN
Miscellaneous
SECTION 1401. Miscellaneous.
-------------
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
NEW CENTURY ENERGIES, INC
By_____________________________________
Name:
Title:
Attest:
Name:
Title:
[ ],
as Trustee
By_____________________________________
Name:
Title:
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EXHIBIT B-5
[FORM OF SUPPLEMENTAL INDENTURE]
-----------------------------------------------------------------
-----------------------------------------------------------------
NEW CENTURY ENERGIES, INC.
and
[ ],
As Trustee
-------------------------------------
[ ] SUPPLEMENTAL INDENTURE
Dated as of [ ]
Supplementing the Indenture
Dated as of [ ]
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
[ ] SUPPLEMENTAL INDENTURE, dated as of [ ] (the "[ ]
Supplemental Indenture"), between New Century Energies, Inc., a corporation duly
organized and existing under the laws of the State of Delaware, having its
principal office at 1225 17th Street, Denver, Colorado 80202 (the "Company"),
and [ ], having its corporate trust office at [ ], as trustee (the "Trustee")
under the Indenture dated as of [ ] (the "Indenture"), between the Company and
the Trustee.
Recitals of the Company
-----------------------
The Company and the Trustee have heretofore entered into an
Indenture, dated as of [ ] (such Indenture, [as heretofore supplemented and] as
supplemented by this supplemental indenture being hereinafter referred to as the
"Indenture"), relating to the issuance at any time or from time to time of its
Securities on terms to be specified at the time of issuance. Terms used and not
otherwise defined herein shall (unless the context otherwise clearly requires)
have the respective meanings given to them in the Indenture.
The Indenture provides in Article Three thereof that, prior to
the issuance of Securities of any series, the form of such Securities and the
terms applicable to such series shall be established in, or pursuant to, the
authority granted in a resolution of the Board of Directors (delivered to the
Trustee in the form of a Board Resolution) or established in one or more
indentures supplemental thereto. The Company desires by this supplemental
indenture, among other things, to establish the form of the Securities of a
series, to be titled "__% Notes due ___" of the Company, and to establish the
terms applicable to such series, pursuant to Sections 301 and 901(8) of the
Indenture. The Company has duly authorized the execution and delivery of this
supplemental indenture.
Article Nine of the Indenture provides that the Company, when
authorized by a resolution of its Board of Directors, and the Trustee may from
time to time and at any time enter into an indenture or indentures supplemental
thereto for certain purposes enumerated in Section 901 thereof, including the
establishment of the form or terms of Securities of any series as permitted by
Section 301 thereof.
The execution and delivery of this supplemental indenture by
the parties hereto are in all respects authorized by the provisions of the
Indenture.
All things necessary have been done to make this supplemental
indenture a valid agreement of the Company, in accordance with its terms.
1
<PAGE>
NOW, THEREFORE, THIS [______] SUPPLEMENTAL INDENTURE
WITNESSETH:
For and in consideration of the premises, it is mutually
covenanted and agreed, as follows:
ARTICLE I
GENERAL TERMS AND CONDITIONS OF THE NOTES
SECTION 1.1. Designation and Principal Amount.
--------------------------------
There is hereby authorized a series of Securities designated the
"_____% Notes due _____ (the "Notes"), limited in aggregate principal amount to
$[ ], to be substantially in the form set forth in Exhibit A hereto, subject to
changes in the form thereof made by the Company and acceptable to the Trustee.
SECTION 1.2. Maturity.
--------
The Maturity Date of the Notes shall be [________].
SECTION 1.3. Global Note.
-----------
The Notes shall be issued in as one or more Global Securities and The
Depository Trust Company, or a nominee thereof, shall be the Depository for such
Global Security or Global Securities. The Depository for such Global Security or
Global Securities representing Notes may surrender one or more Global Securities
representing Notes in exchange in whole or in part for individual Notes on such
terms as are acceptable to the Company and such Depository and otherwise subject
to the terms of Section 305 of the Indenture
SECTION 1.4. Interest.
--------
(a) Each Note will bear interest at the rate of _____% per
annum (computed on the basis of a 360-day year of twelve 30-day months) until
payment of the principal thereof has been made or duly provided for, payable
semi-annually on [ ] and [ ] in each year (each, an "Interest Payment Date").
commencing [ ] and at the same rate per annum on overdue principal or (to
the extent legally enforceable) on any overdue installment of interest. If
any Interest Payment Date would otherwise be a day that is not a Business Day,
such Interest Payment Date shall be postponed to the next day that is a
business Day and no interest shall accrue as a result of such delayed payment.
Each payment of interest in respect of an Interest Payment Date shall include
interest accrued to but excluding such Interest Payment Date.
2
<PAGE>
(b) Each Note shall be dated the date of its authentication,
and interest shall be payable on the principal represented thereby from the most
recent Interest Payment Date to which interest has been paid, unless the date
thereof is an Interest Payment Date to which interest has been paid, in which
case such interest shall be payable from such date, or unless the date thereof
is prior to the first interest payment date, in which case interest shall be
payable from [ ].
SECTION 1.5. Redemption and Sinking Fund.
---------------------------
[The Notes are not subject to redemption at the
option of the Holder and are subject to redemption solely at the
option of the Company or otherwise.]
[The Notes shall not be entitled to the benefit of any sinking
fund or analogous provision.]
SECTION 1.6. Appointment of Agents.
---------------------
The Company hereby appoints, or confirms the appointment of, [
] as the initial Trustee, Securities Registrar and Paying Agent with respect to
the Notes, subject to the provisions of the Indenture with respect to
resignation, removal and succession, and subject, further, to the right of the
Company to appoint additional agents (including Paying Agents).
ARTICLE II
MISCELLANEOUS
SECTION 2.1. Ratification of Indenture.
-------------------------
The Indenture, as supplemented by this [ ] Supplemental
Indenture, is in all respects ratified and confirmed, and this [ ] Supplemental
Indenture shall be deemed part of the Indenture in the manner and to the extent
herein and therein provided.
SECTION 2.2. Trustee Not Responsible for Recitals.
------------------------------------
The recitals herein contained are made by the Company and not
by the Trustee, and the Trustee assumes no responsibility for the correctness
thereof. The Trustee makes no representation as to the validity or sufficiency
of this [ ] Supplemental Indenture.
3
<PAGE>
SECTION 2.3. Governing Law.
-------------
This [ ] Supplemental Indenture and each Note shall be deemed
to be a contract made under the internal laws of the State of New York, and for
all purposes shall be construed in accordance with the laws of said State.
SECTION 2.4. Separability.
------------
In case any one or more of the provisions contained in this
[ ] Supplemental Indenture or in the Notes shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this [ ] Supplemental
Indenture or of the Notes, but this [ ] Supplemental Indenture and the Notes
shall be construed as if such invalid or illegal or unenforceable provision had
never been contained herein or therein.
SECTION 2.5. Counterparts.
------------
This [ ] Supplemental Indenture may be executed in any number
of counterparts each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this [ ]
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, on the date or dates indicated in the
acknowledgments and as of the day and year first above written.
NEW CENTURY ENERGIES, INC.
By:_________________________________
Name:
Title:
Attest:
By:
[ ]
By:_________________________________
Name:
Title:
4
<PAGE>
EXHIBIT A
(FORM OF NOTE)
[IF THE NOTE IS TO BE A GLOBAL NOTE, INSERT -- THIS NOTE IS A
GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY. THIS NOTE
IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A
WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE
DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE
DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITORY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND
ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
No. ____________________
$_______________________
CUSIP No. ______________
NEW CENTURY ENERGIES, INC.
_____% NOTE DUE _____
NEW CENTURY ENERGIES, INC., a Delaware corporation (the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
____________________ or registered assigns, the principal sum of __________
Dollars ($__________) on __________, and to pay interest (computed on the bases
of a 360-day year of twelve 30-day months) thereon from the most recent [ ] or
[ ] (each such date, an "Interest Payment Date"), as the case may be, to which
interest has been paid or duly provided for, or from the date hereof if such
date be either of said dates, or,
5
<PAGE>
in the case of interest payable on [ ], from [ ], at the rate of _____% per
annum until the principal hereof shall havebecome due and payable, and at the
same rate per annum on any overdue principal or (to the extent that legally
enforceable) on any overdue installment of interest. If any Interest Payment
Date would otherwise be a day that is not a Business Day, such Interest Payment
Date shall be postponed to the next day that is a business Day and no interest
shall accrue as a result of such delayed payment. Each payment of interest in
respect of an Interest Payment Date shall include interest accrued to but
excluding such Interest Payment Date.
The interest installment so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the person in whose name this Note (or one or more
Predecessor Securities, as defined in said Indenture) is registered at the close
of business on the regular record date for such interest installment, which
shall be the fifteenth day of the month next preceding such Interest Payment
Date. Any such interest installment not punctually paid or duly provided for
shall forthwith cease to be payable to the registered Holders on such regular
record date and may be paid to the Person in whose name this Note (or one or
more Predecessor Securities) is registered at the close of business on a special
record date to be fixed by the Trustee for the payment of such defaulted
interest, notice whereof shall be given to the registered Holders of this series
of Notes 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 the Notes may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in the
Indenture. The principal of (and premium, if any) and the interest on this Note
shall be payable at the office or agency of the Company maintained for that
purpose in any coin or currency of the United States of America that at the time
of payment is legal tender for payment of public and private debts; provided,
however, that payment of interest may be made at the option of the Company by
check mailed to the registered Holder at such address as shall appear in the
Security Register.
This Note is one of a duly authorized series of Securities of
the Company (herein sometimes referred to as the "Securities"), specified in the
Indenture, all issued or to be issued in one or more series under and pursuant
to an Indenture dated as of __________, duly executed and delivered between the
Company and [ ], as Trustee (the "Trustee"), as supplemented by the [ ]
Supplemental Indenture dated as of __________, between the Company and the
Trustee (the Indenture as so supplemented, the "Indenture"), to which Indenture
and all indentures supplemental thereto reference is hereby made for a
description of the rights, limitations of rights, obligations,
6
<PAGE>
duties and immunities thereunder of the Trustee, the Company andthe Holders of
the Securities. By the terms of the Indenture, the Securities are issuable in
series that may vary as to amount, date of maturity, rate of interest and in
other respects as provided in the Indenture. This series of Securities is
limited in aggregate principal amount as specified in said [ ] Supplemental
Indenture.
[The Notes may not be redeemed by the Company prior to
__________. The Company shall have the right to redeem this Note at the option
of the Company, without premium or penalty, in whole or in part at any time and
from time to time on or after __________ (an "Optional Redemption"), at the
Optional Redemption Price (as defined in the Indenture). Any redemption pursuant
to this paragraph will be made upon not less than 30 days' notice, at the
Optional Redemption Price.]
In the event of redemption of this Note in part only, a new
Note or Notes of this series for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture,
shall have occurred and be continuing, the principal of all of the Notes may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Notes of each series affected at the time
outstanding, as defined in the Indenture, to execute supplemental indentures for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Notes; provided,
however, that no such supplemental indenture shall, among other things, (i)
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any premium payable upon the redemption
thereof, without the consent of the Holder of each Note so affected, or (ii)
reduce the aforesaid percentage of Notes, the Holders of which are required to
consent to any such supplemental indenture, without the consent of the Holder of
each Note then outstanding and affected thereby. The Indenture also contains
provisions permitting the Holders of a majority in aggregate principal amount of
the Securities of any series at the time outstanding affected thereby, on behalf
of all of the Holders of the Notes of such series, to waive any Default or Event
of Default with respect to such series, and its consequences, except a Default
or Event of Default in the payment of the principal of or premium,
7
<PAGE>
if any, or interest on any of the Securities of such series or in respect of a
provision which under the Indenture cannot be modified or amended without the
consent of the Holder of each Outstanding Security of that series affected. Any
such consent or waiver by the registered Holder of this Note (unless revoked as
provided in the Indenture) shall be conclusive and binding upon such Holder and
upon all future Holders and owners of this Note and of any Note issued in
exchange herefor or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and premium, if
any, and interest on this Note at the time and place and at the rate and in the
money herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, this Note is transferable by the registered
Holder hereof on the Security Register of the Company, upon surrender of this
Note for registration of transfer at the office or agency of the Trustee in the
City of New York and State of New York, accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company or the Trustee duly
executed by the registered Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Notes of authorized denominations and for
the same aggregate principal amount and series will be issued to the designated
transferee or transferees. No service charge will be made for any such transfer,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this
Note, the Company, the Trustee, any paying agent and the Security Registrar may
deem and treat the registered holder hereof as the absolute owner hereof
(whether or not this Note shall be overdue and notwithstanding any notice of
ownership or writing hereon made by anyone other than the Security Registrar)
for the purpose of receiving payment of or on account of the principal hereof
and premium, if any, and interest due hereon and for all other purposes, and
neither the Company nor the Trustee nor any paying agent nor any Security
Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of
or the interest on this Note, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
8
<PAGE>
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
[This Global Note is exchangeable for Notes in definitive form
only under certain limited circumstances set forth in the Indenture. The Notes
of this series so issued are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof.] As provided in the
Indenture and subject to certain limitations herein and therein set forth, Notes
of this series so issued are exchangeable for a like aggregate principal amount
of Notes of this series of a different authorized denomination, as requested by
the Holder surrendering the same.
All terms used in this Note that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
This Note shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any purpose
until the Certificate of Authentication hereon shall have been signed by or on
behalf of the Trustee.
IN WITNESS WHEREOF, the Company has caused this instrument to
be executed.
Dated________________________
NEW CENTURY ENERGIES, INC.
By:_______________________________________
Name:
Title:
Attest:
By:________________________________
Name:
Title:
9
<PAGE>
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series of Notes described in
the within-mentioned Indenture.
Dated ___________________
[ ], as Trustee
By:______________________________________
Authorized Signatory
10
<PAGE>
EXHIBIT B-6
NEW CENTURY ENERGIES, INC.
PURCHASE CONTRACT
New Century Energies, Inc., a Delaware corporation (the
"Company"), confirms its agreement with each of the Purchasers (as hereinafter
defined) with respect to the sale by the Company and the purchase by the
Purchasers, severally and not jointly, of the Notes (as hereinafter defined).
1. Purchasers and Representative. If there shall be two or
-------------------------------
more persons, firms or corporations named as purchasers in Schedule I hereto,
the term "Purchasers" as used herein shall be deemed to mean the several
persons, firms or corporations so named (including the Representative
hereinafter mentioned, if so named, and any Purchasers substituted pursuant to
paragraph 11 hereof), and the term "Representative" as used herein shall be
deemed to mean the representative or representatives named in Schedule I hereto.
If there shall be only one person, firm or corporation named in Schedule I
hereto, the term "Purchasers" and the term "Representative" as used herein shall
mean such person, firm or corporation. The Representative represents and
warrants that it has the necessary power and authority to execute this Contract
on behalf of the Purchasers and to otherwise act for each of the Purchasers in
respect of all matters referred to in this Contract. All obligations of the
Purchasers hereunder are several and not joint.
2. Description of Notes. The Company proposes to issue and
---------------------
sell the Notes as a single series under its Indenture, dated as of [ ] (the
"Original Indenture"), to [
], as trustee (the "Trustee"), as it will be supplemented by a
supplemental indenture creating the Notes (said Original Indenture, as
supplemented, and said supplemental indenture being hereinafter referred to as
the "Indenture" and the "Supplemental Indenture", respectively). The Notes shall
be issued in the aggregate principal amount or amounts, shall bear interest at
the rate or rates, shall be payable on the dates, and shall mature on the date
or dates set forth, and shall be subject to optional and sinking fund redemption
as described, in Schedule II hereto. The term "Notes" as used in this Contract
shall mean the notes described in this paragraph.
3. Representations and Warranties of the Company. The Company
---------------------------------------------
represents and warrants to the Purchasers that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, including a prospectus,
for the registration of securities having an aggregate principal amount not
exceeding [ ], including the Notes, under the Securities Act of 1933, as amended
<PAGE>
(the "1933 Act"), and the offering thereof from time to time in accordance with
Rule 415 of the rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations"), and has filed such amendments thereto as may have been
required to the date hereof. Such registration statement has been declared
effective by the Commission and the Indenture has been qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act"). Such registration statement,
in the form in which it became effective, as amended to the date hereof,
including the information, if any, deemed to be a part thereof pursuant to Rule
430A(b) of the 1933 Act Regulations (the "Rule 430A Information") or Rule 434(d)
of the 1933 Act Regulations (the "Rule 434 Information"), is hereinafter
referred to as the "Registration Statement"; the prospectus included in the
Registration Statement, as such prospectus may have been amended to the date
hereof, is hereinafter referred to as the "Basic Prospectus"; and the Basic
Prospectus, as supplemented by a prospectus supplement relating to the Notes
(the "Prospectus Supplement"), is hereinafter referred to as the "Prospectus";
provided, however, that (i) the terms "Registration Statement", "Basic
Prospectus" and "Prospectus" shall be deemed to refer to and include, in each
case, the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act, (ii) any reference herein to any amendment or
supplement to the Prospectus shall be deemed to refer to and include any
documents filed after the date of the Prospectus pursuant to Section 13 or 14 of
the Securities Exchange Act of 1934, as amended (the "1934 Act"), and so
incorporated by reference, all of such documents so incorporated by reference
being hereinafter referred to as the "Incorporated Documents", and (iii) any
prospectus supplement to the Basic Prospectus which relates to securities other
than the Notes shall not be deemed to be a part of the Basic Prospectus or the
Prospectus. If the Company files a registration statement to register a portion
of the Notes and relies on Rule 462(b) of the 1933 Act Regulations for such
registration statement to become effective upon filing with the Commission (the
"Rule 462 Registration Statement"), then, after such filing, all references to
"Registration Statement" herein shall be deemed to be to the Registration
Statement referred to above and the Rule 462 Registration Statement, as each
such registration statement may be amended to the date hereof. If the Company
elects to rely on Rule 434 of the 1933 Act Regulations, all references to the
"Prospectus" shall be deemed to include the form of prospectus and the
applicable term sheet or abbreviated term sheet (the "Term Sheet"), as the case
may be, taken together, provided to the Purchasers by the Company in reliance on
Rule 434.
(b) At the respective times the Registration Statement and any
post-effective amendments thereto (including the filing
2
<PAGE>
of the Company's most recent Annual Report on Form 10-K with the Commission
subsequent to the date the Registration Statement became effective (the "Annual
Report on Form 10-K")) became effective, the Registration Statement and any
amendments and supplements thereto complied, and, upon the filing of the
Prospectus Supplement with the Commission, the Prospectus will comply, with the
provisions of the 1933 Act and the applicable 1933 Act Regulations, or pursuant
to the 1933 Act Regulations are or will be deemed to have complied or to comply
therewith; at the time the Registration Statement became effective, the
Registration Statement did 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; and, at the time the Registration
Statement became effective and at the date hereof, the Basic Prospectus did not
and does not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however,
that none of the foregoing representations and warranties in this subparagraph
(b) shall apply to that part of the Registration Statement which shall
constitute the Statement of Eligibility under the 1939 Act of the trustee under
the Indenture (the "Statement of Eligibility"). If Rule 434 under the 1933 Act
Regulations is used, the Company will comply with the requirements of Rule 434.
(c) The Incorporated Documents, at the time they were filed
with the Commission, complied in all material respects with the requirements of
the 1934 Act and the rules and regulations of the Commission thereunder (the
"1934 Act Regulations"), and, when read together with the other information in
the Prospectus, do 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, in the light of the circumstances under which they were
made, not misleading; and any additional Incorporated Documents will, when they
are filed with the Commission, comply in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations and 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, in the light
of the circumstances under which they are made, not misleading.
(d) The financial statements included in the Registration
Statement present fairly the financial position of the Company and its
consolidated subsidiaries as at the dates indicated and the results of their
operations for the periods specified; and, except as otherwise stated in the
Registration Statement, such financial statements have been prepared in
3
<PAGE>
conformity with generally accepted accounting principles applied on a consistent
basis during the periods involved and the supporting financial schedules
included in the Registration Statement present fairly the information required
to be stated therein. Arthur Andersen LLP, the accountants who certified certain
of such financial statements and financial schedules, are independent certified
public accountants as required by the 1933 Act and the 1933 Act Regulations.
(e) Except as may otherwise be reflected in or contemplated by
the Registration Statement, since the respective dates as of which information
is given therein (i) there has been no material adverse change nor any
development or event involving a prospective material adverse change in the
business, property or condition, financial or otherwise, of the Company, whether
or not arising in the ordinary course of business, and (ii) the Company has not
entered into any transactions which are material to the Company, other than in
the ordinary course of business; and, except as so reflected or contemplated,
the Company does not have any contingent obligations which are material to the
Company.
(f) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware with corporate power and authority to own its properties and conduct
its business as described in the Registration Statement.
(g) The issuance and sale by the Company of the Notes pursuant
to this Contract have been duly authorized by all necessary corporate action;
and, when issued, authenticated and delivered by the Company pursuant to this
Contract against payment of the consideration therefor specified herein, the
Notes will be valid and binding obligations of the Company, enforceable in
accordance with their terms, except as enforcement thereof may be limited by
laws or principles of equity affecting generally the enforcement of creditors'
rights, including without limitation bankruptcy and insolvency laws and state
laws which affect the enforcement of certain remedial provisions of the
Indenture, and will be entitled to the benefits of the Indenture.
(h) The execution and delivery of this Contract, the
incurrence of the obligations herein set forth and the consummation of the
transactions herein contemplated will not conflict with or constitute a breach
of, or default under, the Restated Articles of Incorporation, as they may have
been amended, or By-Laws of the Company or any contract, lease, note, mortgage
or other instrument to which the Company is a party or
4
<PAGE>
by which it may be bound, or any law, administrative regulation or
administrative or court order.
(i) All approvals and authorizations by the Commission under
the Public Utility Holding Company Act of 1935 (the "'35 Act") which are
required for the valid authorization and issuance of the Notes and the valid
sale thereof under this Contract, have been obtained and are in full force and
effect and the approval of no other governmental or regulatory authority or body
is necessary in connection with the issuance and sale by the Company of the
Notes pursuant to this Contract, except that there must be compliance with the
securities laws in the jurisdictions in which the Notes are to be offered and
sold.
(j) Any certificate signed by any officer of the Company and
delivered to the Representative or to [Purchasers' Counsel], who are acting as
counsel for the Purchasers, shall be deemed a representation and warranty by the
Company to each Purchaser as to the matters covered thereby.
4. Purchase and Sale. On the basis of the representations and
-----------------
warranties, and subject to the terms and conditions, in this Contract set forth,
the Company agrees to sell to each of the several Purchasers, severally and not
jointly, and each Purchaser agrees, severally and not jointly, to purchase from
the Company, the principal amount of the Notes set forth in Schedule I hereto
opposite the name of such Purchaser at the price specified in Schedule II
hereto.
5. Public Offering. Forthwith upon the execution of this
----------------
Contract, the Representative shall furnish the Company in writing any
information regarding the public offering, if any, of the Notes, in addition to
the information set forth on Schedules I and II hereto, which is required to
prepare the Prospectus Supplement.
6. Time and Place of Closing. Delivery of the Notes and
---------------------------
payment therefor by certified or official bank check or checks payable to the
order of the Company, or by wire transfer to a bank account specified by the
Company, in the funds specified in Schedule II hereto, shall be made at the
office of LeBoeuf, Lamb, Greene & MacRae, L.L.P., 125 West 55th Street, New
York, New York, at 10:00 A.M., New York time, on the date specified in Schedule
II hereto, or at such other place, time or date as may be agreed upon by the
Company and the Representative. The time and date of such payment and delivery
are herein called the "Closing Date".
5
<PAGE>
The Notes shall be delivered to or upon the order of the
Representative for the respective accounts of the Purchasers in registered form
in such authorized denominations and registered in such names as the
Representative may reasonably request in writing at least one business day prior
to the Closing Date or, to the extent not so requested, in the names of the
respective Purchasers in such denominations as the Company shall determine. The
Company agrees to make the Notes available to the Representative for checking
not later than 2:30 P.M., New York time, on the last business day preceding the
Closing Date at the office of [Trustee's office], New York, New York, or at such
other place as may be agreed upon by the Company and the Representative.
7. Covenants of the Company. The Company covenants with each
------------------------
Purchaser that:
(a) The Company will promptly deliver to the Representative
two signed copies of the registration statement relating to the Notes
as originally filed and of all amendments thereto heretofore or
hereafter made (in each case including all Incorporated Documents and
exhibits thereto, other than exhibits incorporated by reference), and
including a signed copy of each consent and certificate included
therein or filed as an exhibit thereto, and will deliver to the
Representative conformed copies of each of the foregoing (excluding
such exhibits, consents and certificates) for distribution to the
Purchasers. The Company will also deliver to the Purchasers, through
the Representative, as soon as practicable after the date hereof and
thereafter from time to time, as many copies of the Prospectus and any
amendments or supplements thereto as the Representative may reasonably
request for the purposes contemplated by the 1933 Act.
(b) The Company will not file any amendment to the
Registration Statement (including any filing under Rule 462(b) of the
1933 Act Regulations) or make any amendment or supplement to the
Prospectus (including any Term Sheet) of which the Representative shall
not previously have been advised or which shall have been reasonably
disapproved in writing by the Representative or [Purchasers' Counsel].
(c) The Company will pay or cause to be paid (i) all expenses
in connection with (A) the preparation and filing by it of the
Registration Statement, (B) the preparation, printing, issuance and
delivery of the Notes as provided in paragraph 6 hereof, (C) the
preparation, execution, filing and recording of the Indenture and the
Supplemental
6
<PAGE>
Indenture, (D) the preparation of this Contract, and (E) the printing
and delivery to the Purchasers, through the Representative, in
reasonable quantities, of copies of the Registration Statement and the
Prospectus, and any amendments or supplements thereto (except as
otherwise provided in subparagraph (d) of this paragraph 7), this
Contract, the Indenture and the Supplemental Indenture, (ii) the fees
and disbursements of the Company's counsel and accountants related to
the preparation of the Registration Statement and Prospectus, the
issuance and sale of the Notes, (iii) the expenses incurred in
connection with the qualification of the Notes under securities laws
in accordance with subparagraph (g) of this paragraph 7, including
filing fees and reasonable fees and disbursements of counsel to the
Purchasers in connection therewith and in connection with the
preparation of the Blue Sky Survey and the Legal Investment Survey, if
any, and (iv) all taxes, if any (except transfer taxes), on the
issuance of the Notes. If this Contract is terminated in accordance
with subparagraph (a)(i), (a)(ii) or (b) of paragraph 13 hereof, the
Company will reimburse the Purchasers for all their out-of-pocket
expenses, including the fee and disbursements of counsel to the
Purchasers. The Company will not in any event be liable to any of the
Purchasers for damages on account of the loss of anticipated profits.
(d) If, at any time when a prospectus relating to the Notes is
required to be delivered under the 1933 Act, the Prospectus, as it may
then have been amended or supplemented, would, in the opinion of the
Company or the Representative, include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if, at such time, it shall be
necessary to amend or supplement the Prospectus, as it may then have
been amended or supplemented, in order to comply with Section 10 of the
1933 Act or the 1933 Act Regulations, the Company will, subject to
Section 7(b) hereof, forthwith prepare and file with the Commission an
amendment or supplement which will correct such statement or omission
or effect such compliance and will furnish a reasonable number of
copies thereof to the Representative. During the first nine months
after the date hereof, the cost of so preparing, filing and furnishing
such amendment or supplement will be borne by the Company and,
thereafter, by the Purchasers who request the same; provided, however,
that should such amendment or supplement relate solely to the
activities of any Purchaser or Purchasers, then such cost shall in any
event be borne by
7
<PAGE>
such Purchasers. For purposes of this subparagraph (d) the Company
shall be entitled to assume that a prospectus relating to the Notes
shall no longer be required to be delivered under the 1933 Act from
and after the forty-fifth day after the date of this Contract, unless
it shall have received from the Representative notice to the contrary.
Whenever a prospectus shall be so required to be delivered, the
Purchasers will deliver the Prospectus, as it may have been amended or
supplemented at the time of such delivery.
(e) The Company will make generally available to its security
holders, as soon as practicable, an earnings statement (which need not
be audited) of the Company (and its consolidated subsidiaries, if any)
covering a period of 12 months beginning not later than the first day
of the Company's fiscal quarter next following the date of this
Contract and complying with Rule 158 of the 1933 Act Regulations.
(f) The Company will comply with the requirements of Rule 430A
of the 1933 Act Regulations and/or Rule 434 of the 1933 Act
Regulations, if and as applicable, and during the period when a
prospectus relating to the Notes is required to be delivered under the
1933 Act or the 1934 Act, the Company will promptly advise the
Representative by telephone, promptly confirmed in writing, (i) of the
effectiveness of any post-effective amendment to the Registration
Statement or the filing of any supplement or amendment to the
Prospectus, (ii) of the receipt of any comments from the Commission,
(iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus
or for additional information and (iv) of the issuance of any stop
order under the 1933 Act with respect to the Registration Statement or
of the institution of any proceedings therefor of which the Company
shall have received notice or become aware, and will use its best
efforts to prevent the issuance of any such stop order and, if issued,
to secure the prompt lifting or removal thereof. For purposes of this
subparagraph (f), the Company shall be entitled to assume that a
prospectus relating to the Notes shall no longer be required to be
delivered under the 1933 Act from and after the forty-fifth day after
the date of this Contract unless notified to the contrary by a
Purchaser.
(g) During the period of three months from the date of this
Contract, the Company will furnish such proper information as may
lawfully be required and otherwise cooperate in qualifying the Notes
for offer and sale under
8
<PAGE>
the securities laws of such jurisdictions as the Representative may
reasonably designate; provided, however, that the Company shall not be
required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction, or to comply with
any other requirement deemed by the Company to be unduly burdensome.
(h) The Company, during the period when a prospectus relating
to the Notes is required to be delivered under the 1933 Act, will (i)
file promptly all documents required to be filed with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act and (ii)
promptly notify the Representative by telephone and confirm in writing
if the rating assigned by Moody's Investors Service, Inc. or Standard &
Poor's Ratings Group to any debt securities of the Company shall have
been lowered or if Moody's Investors Service, Inc. or Standard & Poor's
Ratings Group shall have informed the Company or publicly announced
that it has under surveillance or review, with possible negative
implications, its rating of the Notes or any other debt securities of
the Company.
(i) Promptly after the execution and delivery of this
Contract, the Company will transmit copies of the Prospectus to the
Commission for filing pursuant to Rule 424 of the 1933 Act Regulations.
If the Company elects to rely on Rule 434 of the 1933 Act, the Company
will prepare a Term Sheet that complies with the requirements of Rule
434 of the 1933 Act Regulations and will transmit copies of the form of
Prospectus complying with Rule 434(c)(2) of the 1933 Act in accordance
with Rule 424 under the 1933 Act Regulations.
(j) Between the date hereof and the date which is 10 days
after the Closing Date, the Company will not, without the prior written
consent of the Representative, offer or sell or enter into any
agreement to sell, any of its other debt securities which are
substantially similar to the Notes; it being understood that the
Company may offer and sell or enter into an agreement to offer and sell
[specify securities, if any].
8. Conditions of Purchasers' Obligations. The
-------------------------------------
several obligations of the Purchasers to purchase and pay for the
Notes shall be subject to the accuracy when made of the
representations and warranties on the part of the Company
contained herein or in certificates of the Company delivered
pursuant to the provisions hereof, to the performance by the
Company of its obligations to be performed hereunder at or prior
to the Closing Date and to the following further conditions:
9
<PAGE>
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at the Closing Date, and no
proceedings for that purpose shall then be pending before, or
threatened by, the Commission. A prospectus containing information
relating to the description of the Notes, the specific method of
distribution and similar matters shall have been filed with the
Commission in accordance with Rule 424(b)(1), (2), (3), (4) or (5), as
applicable (or any required post-effective amendment providing such
information shall have been filed and declared effective in accordance
with the requirements of Rule 430A), or, if the Company has elected to
rely upon Rule 434 of the 1933 Act Regulations, a Term Sheet including
the Rule 434 Information shall have been filed with the Commission in
accordance with Rule 424(b)(7).
(b) At the Closing Date, the order of the Commission under the
'35 Act authorizing and approving the issuance and sale of the Notes
shall be final and in full force and effect and the time for appeal
therefrom or review thereof or intervention with respect thereto shall
have expired.
(c) At the Closing Date, the Representative shall have
received a certificate, dated the Closing Date, of the Company signed
by its President or one of its Vice Presidents, substantially in the
form thereof attached as Exhibit A hereto.
(d) At the Closing Date, the Representative shall have
received opinions, dated the Closing Date, of LeBoeuf, Lamb, Greene &
MacRae, L.L.P., counsel for the Company, and [Purchasers' Counsel],
counsel for the Purchasers, substantially in the forms thereof attached
hereto as Exhibits B and C respectively, with reproduced or conformed
copies thereof for each of the Purchasers.
(e) At the Closing Date, the Representative shall have
received a letter, dated the Closing Date, from Arthur Andersen LLP,
substantially to the effect set forth in Exhibit G hereto, with
reproduced or conformed copies thereof for each of the Purchasers.
(f) At the Closing Date, counsel for the Purchasers shall have
been furnished with such documents and opinions as they may require for
the purpose of enabling them to pass upon the issuance and sale of the
Notes as herein contemplated and related proceedings, or in order to
evidence the accuracy or completeness of any of the representations or
warranties, or the fulfillment of any of
10
<PAGE>
the conditions herein contained; and all proceedings taken by the
Company in connection with the issuance and sale of the Notes as
herein contemplated shall be satisfactory in form and substance to the
Representative and [Purchasers' Counsel].
9. Conditions of Company's Obligation. The
----------------------------------
obligation of the Company to deliver the Notes shall be subject
to the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect at the Closing Date, and no
proceedings for that purpose shall then be pending before, or
threatened by, the Commission.
(b) At the Closing Date, the order of the Commission under the
'35 Act authorizing and approving the issuance and sale of the Notes
shall be final and in full force and effect.
10. Indemnification. (a) The Company agrees to indemnify and
---------------
hold harmless each Purchaser and each person who controls any Purchaser within
the meaning of Section 15 of the 1933 Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject and to reimburse each such Purchaser and controlling person for
any legal or other expenses (including, subject to subparagraph (c) of this
paragraph 10, reasonable counsel fees) reasonably incurred by them, as incurred,
in connection with any such losses, claims, damages or liabilities or in
connection with investigating or preparing for or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or in connection with effecting a settlement of
any such litigation, investigation or proceeding (if such settlement is effected
with the written consent of the Company), insofar as such losses, claims,
damages, liabilities, expenses, litigation, investigations or proceedings arise
out of, or are based upon, an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, or in any amendment
thereto, or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or an untrue statement or alleged untrue statement of a material
fact included in the Basic Prospectus or the Prospectus, as it may have been or
be amended or supplemented, or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however,
that the indemnity
11
<PAGE>
agreement contained in this subparagraph (a) shall not apply to any such losses,
claims, damages, liabilities, expenses, litigation, investigations or
proceedings arising out of, or based upon, any such untrue statement or alleged
untrue statement, or any such omission or alleged omission, if such statement or
omission was made in reliance upon and in conformity with information furnished
in writing to the Company on behalf of any Purchaser, through the
Representative, expressly for use in the Prospectus, or any amendment or
supplement thereto, or arising out of, or based upon, any such untrue statement
or alleged untrue statement in, or any such omission or alleged omission from,
the Statement of Eligibility; and provided, further, that the indemnity
agreement contained in this subparagraph (a) shall not inure to the benefit of
any Purchaser or of any person controlling such Purchaser on account of any such
loss, claim, damage, liability, expense, litigation, investigation or proceeding
arising from the sale of Notes to any person if (i) such Purchaser shall have
failed to send or give to such person (A) with or prior to the written
confirmation of such sale, a copy of the Prospectus together with any amendments
or supplements thereto which shall theretofore have been furnished to such
Purchaser, or (B) with or prior to the delivery of such Notes to such person, a
copy of any amendment or supplement to the Prospectus which shall have been
furnished to such Purchaser subsequent to such written confirmation and prior to
the delivery of such Notes to such person, and (ii) in either such case, any
untrue or misleading statement or omission made or alleged to have been made
shall have been eliminated or remedied in the Prospectus or the amendment or
supplement thereto which such Purchaser so failed to send or give to such person
and such Purchaser would not have been liable had a copy of such Prospectus,
amendment or supplement, as the case may be, been so sent or given to such
person. Each Purchaser agrees promptly to notify the Company and each other
Purchaser of the commencement of any litigation, investigation or proceeding
against it or any such controlling person in connection with the issuance and
sale of the Notes.
(b) Each Purchaser agrees to indemnify and hold harmless the
Company, its directors and officers, and each person who controls the Company
within the meaning of Section 15 of the 1933 Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject and to reimburse each of them for any legal or other expenses
(including, subject to subparagraph (c) of this paragraph 10, reasonable counsel
fees) incurred by them, as incurred, in connection with any such losses, claims,
damages or liabilities or in connection with investigating or preparing for or
defending against any litigation, or any investigation or
12
<PAGE>
proceeding by any governmental agency or body, commenced or threatened, or in
connection with effecting a settlement of any such litigation, investigation or
proceeding (if such settlement is effected with the written consent of each
Purchaser affected thereby), insofar as such losses, claims, damages,
liabilities, expenses, litigations, investigations or proceedings arise out of,
or are based upon, an untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, or in any amendment thereto, or
the omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading, or an
untrue statement or alleged untrue statement of a material fact included in the
Prospectus, or any amendment or supplement thereto, or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, if such statement or omission was made in reliance upon and in
conformity with information furnished in writing to the Company on behalf of
such Purchaser, through the Representative, expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus, or any
amendment or supplement thereto. The Company agrees promptly to notify the
Representative of the commencement of any litigation, investigation or
proceeding against it, any such director or officer, or any such controlling
person, in connection with the issuance and sale of the Notes.
(c) The Company and the several Purchasers each agree that,
upon receipt of notice of the commencement of any action against it or any
director, officer or person controlling the Company or any person controlling
such Purchaser as aforesaid, in respect of which indemnity may be sought on
account of any indemnity agreement contained herein, it will promptly give
notice of the commencement thereof to the party or parties against whom
indemnity shall be sought hereunder, but the omission so to notify such
indemnifying party or parties of any such action shall not relieve such
indemnifying party or parties from any liability which it or they may have to
the indemnified party otherwise than on account of such indemnity agreement. In
case such notice of any such action shall be so given, such indemnifying party
shall be entitled to participate at its own expense in the defense, or, if it so
elects, to assume (in conjunction with any other indemnifying parties) the
defense, of such action, in which event such defense shall be conducted by
counsel chosen by such indemnifying party or parties and satisfactory to the
indemnified party or parties who shall be defendant or defendants in such
action. Such indemnified party shall have the right to employ its own counsel in
any such case, but the fees and expenses of such counsel shall be at the expense
13
<PAGE>
of such indemnified party unless the employment of such counsel shall have been
authorized in writing by the indemnifying party in connection with the defense
of such action or the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to have charge of such defense within a
reasonable time after notice by the indemnified party or such indemnified party
shall have reasonably concluded that there may be defenses available to it which
are different from or additional to those available to the indemnifying party
(in which case the indemnifying party shall not have the right to direct the
defense of such action on behalf of the indemnified party). In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to one local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. The indemnity agreements contained in this
paragraph 10 shall be in addition to any liability which the Company or the
Purchasers may otherwise have.
11. Contribution. If the indemnification provided for in
------------
paragraph 10 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, claims, damages or
liabilities referred to therein; then each indemnifying party shall contribute
to the damages and expenses incurred by such indemnified party, as incurred, (i)
in such proportions as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Purchasers on the other hand from the
offering of the Notes pursuant to this Contract or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand and of the
Purchasers on the other hand in connection with the statements or omissions,
which resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations.
The relative benefits received by the Company on the one hand
and the Purchasers on the other hand in connection with the offering of the
Notes pursuant to this Contract shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Notes pursuant to
this Contract (before deducting expenses) received by the Company and the total
underwriting discount received by Purchasers, in each case as set forth on the
cover of the Prospectus, bear to the aggregate initial public offering price of
the Notes as set forth on such cover.
14
<PAGE>
The relative fault of the Company on the one hand and the
Purchasers on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by Purchasers or by the Company and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Purchasers agree that it would not be just
and equitable if contribution pursuant to this paragraph 11 were determined by
pro rata allocation (even if the Purchasers were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 11. The aggregate
amount of losses, claims, damages and liabilities incurred by an indemnified
party and referred to above in this paragraph 11 shall be deemed to include any
legal or other expenses (including, subject to subparagraph (c) of paragraph 10,
reasonable counsel fees) reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this paragraph 11, no
Purchaser shall be required to contribute any amount in excess of the amount by
which the total price at which the Notes underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Purchaser has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this paragraph 11, each person, if any,
who controls a Purchaser within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Purchaser, and each director of the Company and each officer of the Company,
and each person, if any, who controls the Company within the meaning of
paragraph 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Company. The Purchaser's respective obligations
to contribute pursuant to this paragraph 11 are several in proportion to the
number of Notes set forth
15
<PAGE>
opposite their respective names in Schedule 1 hereto and not joint.
12. Substitution of Purchasers. If any Purchaser or Purchasers
--------------------------
shall fail or refuse at the Closing Date (otherwise than for some reason
sufficient to justify, in accordance with the provisions hereof, the
cancellation or termination of its or their obligations hereunder) to purchase
and pay for the Notes which it or they have agreed to purchase as provided in
paragraph 4 hereof (the "Defaulted Notes"), and:
(a) if the aggregate principal amount of the Defaulted Notes
does not exceed 10% of the aggregate principal amount of the Notes, the
remaining Purchasers (the "Non-Defaulting Purchasers") shall have the
right, within a period of 24 hours thereafter, to make arrangements for
one or more of the Non-Defaulting Purchasers, or any other purchasers
acceptable to the Company, to purchase all, but not less than all, of
the Defaulted Notes in such principal amounts as may be agreed upon and
upon the terms herein set forth; if, however, during such 24 hour
period the Non-Defaulting Purchasers shall not have completed such
arrangements for the purchase of all the Defaulted Notes, then the
Non-Defaulting Purchasers shall be obligated to purchase and pay for
the Defaulted Notes in proportion to their respective original purchase
commitments hereunder (based upon the ratio that each of their
respective original purchase commitments bears to the aggregate
original purchase commitment of the Non-Defaulting Purchasers); or
(b) if the aggregate principal amount of the Defaulted Notes
exceeds 10% of the aggregate principal amount of the Notes, the
Non-Defaulting Purchasers shall have the right, within a period of 24
hours thereafter, to make arrangements for one or more of the
Non-Defaulting Purchasers, or any other purchasers acceptable to the
Company, to purchase the Defaulted Notes in such principal amounts as
may be agreed upon and upon the terms herein set forth; if, however,
during such 24 hour period the Non-Defaulting Purchasers shall not
have completed such arrangements for the purchase of all the Defaulted
Notes, then the Company may, within a further period of 24 hours, make
arrangements with one or more other members of the National
Association of Securities Dealers, Inc., satisfactory to the
Non-Defaulting Purchasers, to purchase and pay for, upon the terms
herein set forth, Defaulted Notes for the purchase of which no
arrangements shall have been made by the Non-Defaulting Purchasers. In
the event that neither the Non-Defaulting Purchasers nor the Company
has arranged for the purchase of
16
<PAGE>
the Defaulted Notes as above provided, then this Contract shall
terminate.
In the event that the sale and delivery of all or any
principal amount of the Notes shall be effected as provided in clause (a) or (b)
above, (a) either the Company or the Representative shall have the right to
postpone the Closing Date until the fifth business day after the Closing Date
originally specified in paragraph 6 hereof or such other time as the Company and
the Representative (or the representative of the Non-Defaulting Purchasers and
the substituted purchasers, if any, if the Representative shall be in default)
shall agree, (b) the Company shall promptly prepare and file with the Commission
any amendments or supplements to the Prospectus which may thereby be made
necessary and (c) the respective principal amounts of Notes to be purchased by
the Non-Defaulting Purchasers or substituted purchasers shall be taken as the
basis of their respective purchase commitments hereunder.
In the event that this Contract shall terminate as provided in
clause (b) above, neither the Company nor the Non-Defaulting Purchasers shall be
under any obligation under this Contract except as otherwise provided in
subparagraph (c) of paragraph 7 hereof
No action taken by the Company or the Non-Defaulting
Purchasers under this paragraph 12 shall relieve any defaulting Purchaser of
liability in respect of its default hereunder.
13. Termination. (a) This Contract may be terminated
-----------
at any time at or prior to the Closing Date by the Representative
if:
(i) (A) the Company shall have failed or refused to
perform any covenant or agreement on its part to be performed
hereunder at or prior to the Closing Date, or (B) the
conditions specified in paragraph 8 hereof shall not have been
fulfilled;
(ii) subsequent to the respective dates as of which
information is given in the Prospectus in the form first filed
pursuant to Rule 424(b), other than as set forth or
contemplated therein at such time, or subsequent to the date
hereof there shall have been any material adverse change in
the business, property or condition, financial or otherwise,
of the Company, whether or not arising in the ordinary course
of business, the effect of which is, in the reasonable
judgment of the Representative, so material and adverse
17
<PAGE>
as to make it impracticable or inadvisable for the
Purchasers to market the Notes, or to enforce contracts for
the sale of the Notes, upon the terms specified in the
Prospectus;
(iii) (A) there shall have occurred any outbreak of
hostilities or material escalation thereof or other national
or international calamity or crisis, (B) trading generally on
the New York Stock Exchange shall have been suspended (other
than a temporary suspension to provide for an orderly market),
or minimum or maximum prices for trading shall have been
fixed, or maximum ranges for prices for securities shall have
been required on said exchange or by order of the Commission
or any other governmental authority having jurisdiction, or
(C) a banking moratorium shall have been declared by either
Federal or New York State authorities, in any such case with
the result that, in the reasonable judgment of the
Representative, it shall be impracticable for the Purchasers
to market the Notes, or to enforce contracts for the sale of
the Notes, upon the terms specified in the Prospectus; or
(iv) the rating assigned by Moody's Investors
Service, Inc. or Standard & Poor's Ratings Group to any debt
securities of the Company as of the date of this Contract
shall have been lowered since such date or Moody's Investors
Service, Inc. or Standard & Poor's Ratings Group shall have
informed the Company or publicly announced that it has under
surveillance or review, with possible negative implications,
its rating of the Notes or any other debt securities of the
Company.
(b) This Contract may be terminated at any time at or prior to
the Closing Date by the Company if the conditions specified in paragraph 9
hereof shall not have been fulfilled.
(c) This Contract may be terminated by the Company as provided
in paragraph 12 hereof.
(d) Termination of this Contract under this paragraph 13 shall
be effected by giving notice thereof to the Company or the Representative, as
the case may be.
(e) Any termination of this Contract pursuant to this
paragraph 13 shall be without liability of any party to any other party except
as otherwise provided in subparagraph (c) of paragraph 7 hereof and provided
further that paragraphs 10 and 11
18
<PAGE>
shall survive such termination and remain in full force and effect.
14. Survival. The respective representations, warranties and
--------
agreements of the Company and the Purchasers contained in this Contract or
contained in certificates of officers of the Company submitted in conjunction
herewith will remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Company, any of its directors and
officers or any controlling person thereof, or any Purchaser or any controlling
person thereof, and shall survive the delivery of the Notes.
15. Miscellaneous. This Contract shall inure to the benefit of
-------------
the Company, the Purchasers and, with respect to the provisions of paragraphs 10
and 11 hereof, each director, officer and controlling person referred to in said
paragraphs 10 and 11, and their respective successors. Nothing in this
Contract is intended or shall be construed to give to any other person, firm
or corporation any legal or equitable right, remedy or claim under or in
respect of this Contract or any provision herein contained. The term
"successors" as used in this Contract shall not include any purchaser of any of
the Notes merely because of such purchase. The validity and interpretation
of this Contract shall be governed by the laws of the State of New York.
This Contract may be executed in one or more counterparts, and if executed
in more than one counterpart the executed counterparts shall constitute a single
instrument.
16. Notices. Except as herein otherwise specifically provided,
-------
all notices and other communications hereunder shall be in writing and if sent
to the Purchasers shall be mailed, delivered or telecopied and confirmed in
writing to the Representative at the address and telecopy number set forth in
Schedule I hereto or, if sent to the Company, shall be mailed, delivered or
telecopied (303-294-2583) and confirmed in writing to it at 1225 17th Street,
Denver, CO 80202, Attention: Senior Vice President and Chief Financial Officer,
with a copy to (212-424-8500) and confirmed in writing to LeBoeuf, Lamb, Greene
& MacRae, L.L.P., 125 West 55th Street, New York, NY 10019, Attention: Susan A.
Marshall.
19
<PAGE>
The Company and the Representative, on behalf of the
Purchasers, have caused this Purchase Contract to be executed and delivered this
[ ]th day of [ ].
NEW CENTURY ENERGIES, INC.
By:________________________________
Name:
Title:
[ ]
As Representative of the Purchasers
listed in Schedule I hereto
By:________________________________
Name:
Title:
20
<PAGE>
SCHEDULE I
PURCHASERS
Principal Amount
Purchaser of Notes
Total ==============
REPRESENTATIVE
Name:
Address:
Attention:
Telecopy No.:
<PAGE>
SCHEDULE II
INFORMATION REGARDING THE BONDS
AND THE SALE THEREOF
o Registration Statement No.:
o Aggregate Principal Amount(s), Maturity Date(s) and
Interest Rate(s):
==============================================================
Principal Maturity Interest
Amount Date Rate
--------------------------------------------------------------
==============================================================
o Interest Payment Dates:
o Record Dates:
o Interest to Accrue from:
o Price to Be Paid to Company:
o Method of and Specified Funds for Payment of Purchase Price:
Wire transfer of immediately available funds.
o Initial Public Offering Price (if any):
o Closing Date:
o Optional Redemption:
o Sinking Fund:
o Basic Prospectus:
<PAGE>
Exhibit A to
Note Purchase Contract
----------------------
NEW CENTURY ENERGIES, INC.
CERTIFICATE
Pursuant to paragraph 8(c) of the Purchase Contract, dated [ ]
(the "Contract"), between New Century Energies, Inc., a Delaware corporation
(the "Company"), and the several Purchasers named in Schedule I thereto, the
Company DOES HEREBY CERTIFY that:
(a) No stop order suspending the effectiveness of the
Registration Statement is in effect and no proceedings for that purpose
are pending before or, to the knowledge of the Company, threatened by
the Commission.
(b) The order of the Securities and Exchange Commission under
the Public Utility Holding Company Act of 1935 authorizing and
approving the issuance and sale of the Notes is final and in full force
and effect and the time for appeal therefrom or review thereof or
intervention with
respect thereto has expired.
(c) At the date hereof, the Prospectus, as it may have been
amended or supplemented, complies with the provisions of the 1933 Act
and the 1933 Act Regulations, or pursuant to the 1933 Act Regulations
is deemed to comply therewith; and, at the date of the Contract, the
Prospectus did not, and, at the date hereof, the Prospectus, as it may
have been amended or supplemented, does not, include an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that none of the foregoing certifications in this paragraph
(c) shall apply to statements in or omissions from the Prospectus, as
it may have been amended or supplemented, made in reliance upon and in
conformity with information furnished in writing to the Company by or
on behalf of any Purchaser, through the Representative, expressly for
use in the Prospectus or any amendment or supplement thereto. The
Company has delivered to the Representative copies of the Prospectus
and all amendments and supplements thereto.
A-1
<PAGE>
(d) The financial statements incorporated by reference in the
Prospectus, as it may have been amended or supplemented, present fairly
the financial position of the Company as at the dates indicated and the
results of their operations for the periods specified; and, except as
otherwise stated in the Prospectus, as it may have been amended or
supplemented, such financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis during the periods involved. Arthur Andersen LLP, the
accountants who certified certain of such financial statements, are
independent certified public accountants as required by the 1933 Act
and the 1933 Act Regulations.
(e) Except as may otherwise be reflected in or contemplated by
the Prospectus, as it may have been amended or supplemented, since the
respective dates as of which information is given therein, (i) there
has been no material adverse change or any development or event
involving a prospective material adverse change in the business,
property or condition, financial or otherwise, of the Company, whether
or not arising in the ordinary course of business and (ii) the Company
has not entered into any transactions which are material to the
Company, other than in the ordinary course of business; and, except as
so reflected or contemplated, the Company does not have any contingent
obligations which are material to the Company.
(f) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware with corporate power and authority to own its properties
and conduct its business as described in the Prospectus, as it may have
been amended or supplemented.
(g) The representations and warranties of the Company
contained in subparagraphs (g), (h), (i), and (j) of paragraph 3 of the
Contract are true and correct as of the date hereof.
All terms contained in this Certificate which are defined in
the Contract are used herein with the same meaning as in the Contract.
A-2
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Certificate to
be executed on its behalf this [ ] day of [ ].
NEW CENTURY ENERGIES, INC.
By:________________________________
Name:
Title:
A-3
<PAGE>
Exhibit B
to
Note Purchase Contract
----------------------
[Letterhead of LeBoeuf, Lamb, Greene & MacRae, L.L.P.]
Ladies and Gentlemen:
We have acted as counsel to New Century Energies,
Inc., a Delaware corporationB- 2*E (the "Company") in connection with the sale
by the Company of [ ] aggregate principal amount of its Senior Notes (the
"Notes"), which are registered pursuant to the registration statement (File No.
__________) of the Company for the registration under the Securities Act of
1933, as amended (the "1933 Act"), of up to [ ] B- 2*Eaggregate principal amount
of securities, including the Notes. This opinion is being delivered to you
pursuant to Section 8(d) of the Purchase Contract, dated B- 2*E[ ] B- 2*E(the
"Purchase Contract"), between the Company and the several purchasers named
therein (the "Purchasers"). The Notes are being issued under the Company's
Indenture dated as of [ ], to [
], as trustee (the "Original Indenture, including the supplemental Indenture
dated as of [ ] creating the Notes (the "Supplemental Indenture" and
collectively, with the Original Indentures and all other indentures supplemental
thereto, the "Indenture"). Unless otherwise stated, defined terms used herein
shall have the respective meanings given them in the Purchase Contract.
We are not general counsel to the Company and our representation
of the Company consists of advising it with respect to corporate matters as to
which we have been specifically consulted. We are familiar with the legal
matters pertaining to, and the corporate proceedings of the Company taken with
respect to, the authorization, issuance and sale by the Company of the Notes. We
have examined, among other things, the Registration Statement and the
Prospectus, and any amendment or supplement thereto, the corporate records of
the Company, the Indenture, the Supplemental Indenture creating the Notes, and
such other proceedings, papers and documents as we have deemed
relevant for the purpose of rendering the opinions enumerated below. In such
examination, we have assumed the genuineness of all signatures, the authenticity
of all documents submitted to us as originals, the conformity to the original
documents of all documents submitted to us as copies and the authenticity of all
B-1
<PAGE>
such latter documents. We have relied as to various questions of fact (but not
as to legal conclusions) upon discussions with officers and representatives of
the Company and the representations and warranties of the Company contained in
the Purchase Contract and upon the certificates of public officials and of
officers of the Company being delivered to you thereunder.
On the basis of the foregoing, and subject to the
limitations and qualifications set forth herein, it is our opinion that:
(i) The Original Indenture and the Supplemental Indenture have
been duly and validly authorized, executed and delivered by the Company
and are in due and proper form and (assuming the same have been duly
authorized, executed and delivered by the Trustee) constitute legal, valid
and binding obligations of the Company, enforceable in accordance with
their terms, except as enforcement thereof may be limited by laws and
principles of equity affecting generally the enforcement of mortgagees'
and other creditors' rights, including without limitation bankruptcy and
insolvency laws and state laws which affect the enforcement of certain
remedial provisions of the Indenture; provided, however, that such state
laws will not, in our opinion, render the remedies afforded by the
Indenture inadequate for the practical realization of the benefit of the
security provided thereby.
(ii) The Notes are in due and proper form and the issuance
and sale of the Notes have been duly authorized by all necessary corporate
action, and when duly executed, authenticated and delivered to the Purchasers
pursuant to the Purchase Contract against payment of the consideration set forth
therein, the Notes will be legal, valid and binding obligations of the Company
enforceable (subject to the exceptions and limitations referred to in paragraph
(i) hereof) in accordance with their terms.
(iii) The Indenture is qualified under the Trust
Indenture Act of 1939, as amended.
(iv) The Purchase Contract has been duly authorized, executed and
delivered by the Company.
(v) We are not aware of any approval, authorization, consent or
other order of any federal regulatory board or body, which is legally required
(other than in connection or compliance with the provisions of the securities
laws of any jurisdiction) for the issuance and sale by the Company of the Notes
pursuant to the Purchase Contract except under the Public Utility Holding
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<PAGE>
Company Act of 1935, which order has been obtained and is full force and effect.
(vi) The Notes and the Indenture conform as to legal matters to
the description of the terms thereof contained in the Registration Statement and
the Prospectus, as amended or supplemented to the date hereof.
(vii) The Registration Statement is effective under the 1933 Act
and, to the best of our knowledge, no proceedings for a stop order have been
instituted or are pending or threatened under Section 8(d) of the 1933 Act; and,
at the time the Registration Statement became effective and at the date of the
Purchase Contract, the Registration Statement complied, and, at the date hereof,
the Prospectus, as it may have been amended or supplemented, complies, as to
form in all material respects with the requirements of the 1933 Act and the
applicable instructions, rules and regulations thereunder, or pursuant to said
instructions, rules and regulations are deemed to have complied or to comply
therewith, although we do not express any opinion as to the financial statements
(including the notes thereto) or other financial or statistical data included or
incorporated by reference therein.
(viii) The issuance of and the sale by the Company to you
of the Notes pursuant to the terms of the Purchase Contract and the fulfillment
by the Company of the other terms thereof will not result in a breach of any of
the terms or provisions of, or constitute a default under, the Company's
Restated Articles of Incorporation, as amended, its By-Laws, or any instrument
known to us as which the Company is now a party.
In connection with this opinion, we have participated in
discussions with officers and representatives of the Company, in
certain of which your representatives and counsel also participated and at which
the affairs of the Company and the contents of the Registration Statement and
the Prospectus were discussed. There is no assurance that all possible material
facts as to the Company were disclosed to us or that our familiarity with the
Company or the operations in which it is engaged is such that we have
necessarily recognized the materiality of such facts as were disclosed, and we
have to a large extent relied upon statements of officers and representatives of
the Company as to the materiality of those facts disclosed to us. We are not
passing upon and do not assume any responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration Statement and the
Prospectus. Subject to the foregoing, and to the other limitations and
qualifications expressed in this letter, we may
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<PAGE>
state that nothing has come to our attention that would lead us to believe that
the Registration Statement, when it became effective, or at the date of the
Purchase Contract, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that, at the date the Prospectus
Supplement was filed with the Securities and Exchange Commission, the Prospectus
included, or, at the date hereof, the Prospectus, as it may have been amended or
supplemented, includes an untrue statement of a material fact or omitted, or
omits, to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, that we do not express any belief as to the financial
statements (including the notes thereto) or other financial or statistical data
contained or incorporated by reference in the Registration Statement or the
Prospectus, or any amendment or supplement thereto, as to any information
contained therein furnished to the Company in writing by any Purchaser expressly
for use therein or as to the Statement of Eligibility.
This opinion is limited to the laws of the States
of New York and Delaware and the federal law of the United States of America. In
addition, we are not opining herein with respect to the securities or "blue sky"
laws of any state. Finally, this opinion speaks as of the date hereof and we
undertake no responsibility to advise you of any change in circumstances after
the date hereof.
[Trustee] is hereby authorized to rely upon this
letter as if this letter were addressed to it. This letter is not being
delivered for the benefit of, nor may it be relied upon by, the holders of the
Notes or any other party to which it is not specifically addressed or to which
reliance has not expressly been permitted hereby.
Very truly yours,
B-4
<PAGE>
Exhibit C
to
Note Purchase Contract
----------------------
[PURCHASERS' COUNSEL]
[Purchasers]
Ladies and Gentlemen:
We have acted) as counsel for the Purchasers named in the
Purchase Contract, dated [ ] ( the "Purchase Contract"), among you New Century
Energies, Inc., a Delaware corporation (the "Company"), in connection with the
sale by the Company to you, severally, and the purchase by you, severally, of [
] aggregate principal amount of Senior Notes of the Company (the "Notes"), being
issued under its Indenture, dated as of [ ], to [ ] , as trustee, and all
indentures supplemental thereto, including the Supplemental Indenture dated as
of [ ] creating the Notes (the "Supplemental Indenture") (said Indenture dated
as [ ] and all indentures supplemental thereto being hereinafter collectively
referred to as the "Indenture")
In rendering our opinions set forth herein, we have examined
originals, photocopies or conformed copies certified to our satisfaction of all
corporate records, agreements, instruments and documents of the Company,
certificates of public officials and other certificates and opinions, and have
made such other investigations as we deem necessary, in connection with the
opinions set forth herein In such examination, we have, without any independent
investigation or verification, assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the conformity to
originals of all documents submitted to us as photocopies or conformed copies.
Based upon the foregoing, and subject to the assumptions set
forth herein, we advise you that in our opinion (based to the extent indicated
below upon the opinions of other counsel hereinafter mentioned):
(i) The Indenture has been duly and validly authorized, executed
and delivered by the Company and (assuming the Indenture has been duly
authorized, executed and delivered by the Trustee) constitutes a legal,
valid and binding obligation of the Company, enforceable in accordance
with its terms,
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<PAGE>
except as enforcement thereof may be limited by laws and
principles of equity affecting generally the enforcement of creditors'
rights, including without limitation bankruptcy and insolvency laws and
state laws which affect the enforcement of certain remedial provisions of
the Indenture.
(ii) The Indenture is qualified under the Trust Indenture Act of
1939, as amended.
(iii) The Notes are in due and proper form and the issuance and
sale of the Notes by the Company have been duly authorized by all
necessary corporate action, and, when duly executed, authenticated and
delivered to the Purchasers pursuant to the Purchase Contract against
payment of the consideration set forth therein, the Notes will be legal,
valid and binding obligations of the Company enforceable (subject to the
exceptions and limitations referred to in paragraph (i) hereof) in
accordance with their terms.
(iv) The Purchase Contract has been duly authorized, executed and
delivered by the Company.
(v) The Notes and the Indenture conform as to legal matters
to the description of the terms thereof contained in the Registration
Statement and the Prospectus, as amended or supplemented to the date
hereof.
(vi) The Registration Statement is effective under the 1933
Act and, to the best of our knowledge, no proceedings for a stop order
have been instituted or are pending or threatened under Section 8(d) of
the 1933 Act; and, at the time the Registration Statement became
effective, the Registration Statement complied, and, at the date hereof,
the Prospectus, as amended or supplemented to the date hereof, complies,
as to form in all material respects with the requirements of the 1933 Act
and the applicable instructions, rules and regulations thereunder, or
pursuant to said instructions, rules and regulations are deemed to have
complied or to comply therewith, although we do not express any opinion as
to the financial statements (including the notes thereto) or other
financial data or statistical data included or incorporated by reference
therein.
We have participated in discussions with officers and other
representatives of the Company, counsel for the Company, representatives of the
Company's independent public accountants and your representatives at which the
contents of the Registration Statement and the Prospectus and related matters
were discussed and, although we are not passing upon and do not
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<PAGE>
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus (except to
the extent referred to in paragraph (v) above), on the basis of the foregoing
(relying as to materiality to a large extent upon the opinions of officers and
other representatives of the Company), no facts have come to our attention that
would lead us to believe that either the Registration Statement, when it became
effective, contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that, at the date the Prospectus
Supplement was filed with the Commission, the Prospectus included, or, at the
date hereof, the Prospectus, as it may have been amended or supplemented,
includes an untrue statement of a material fact or omitted, or omits, to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading (it being
understood that we do not make any comment with respect to the financial
statements (including the notes thereto) or other financial or statistical data
contained or incorporated by reference in the Registration Statement or the
Prospectus, or any amendment or supplement thereto or with respect to
information contained therein furnished to the Company in writing by any
Purchaser expressly for use therein or as to the Form T-1).
C-3
<PAGE>
Exhibit D
to
Note Purchase Contract
----------------------
CONTENTS OF LETTER OF ARTHUR ANDERSEN LLP
The letter of Arthur Andersen LLP will confirm that they are
independent public accountants within the meaning of the 1933 Act and the 1933
Act Regulations, and will state in effect that:
(i) in their opinion, the consolidated financial statements and
supporting financial schedules audited by them and incorporated by
reference in the Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act and
the 1934 Act and the applicable respective published rules and regulations
thereunder;
(ii) on the basis of a limited review (but not an audit in
accordance with generally accepted auditing standards) of the unaudited
consolidated condensed financial statements, if any, included in the
Incorporated Documents and of the latest available interim consolidated
financial statements of the Company, a reading of any unaudited pro forma
financial statements included in the Prospectus or the Incorporated
Documents, a reading of all recent minutes of meetings of the Board of
Directors of the Company and the Executive, Audit and Pricing Committees
thereof (or for meetings for which minutes had not yet been prepared,
discussions with a Company officer of the actions taken thereat) and of
the shareholder of the Company, and discussions with officers of the
Company responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing came
to their attention which caused them to believe that:
(iii) any material modifications should be made to the unaudited
consolidated condensed financial statements, if any, included in the
Incorporated Documents for them to be in conformity with generally
accepted accounting principles, or
(iv) the unaudited consolidated condensed
financial statements, if any, included in the Incorporated Documents do
not comply as to form in all material respects with the applicable
accounting requirements of the 1934 Act and the related published 1934 Act
Regulations, or said consolidated
D-1
<PAGE>
condensed financial statements are not
in conformity with generally accepted accounting principles applied on a
basis substantially consistent with that of the audited consolidated
financial statements incorporated by reference therein, or
(v) the unaudited [income statement amounts], if any, included in
the Prospectus Supplement do not agree with the amounts set forth in the
unaudited consolidated financial statements for those same periods or were
not determined on a basis substantially consistent with that of the
audited statements of income, or
(vi) any unaudited pro forma financial
statements included in the Prospectus or the Incorporated Documents do not
comply as to form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X or the pro forma adjustments
have not properly been applied to the historical amounts in the
compilation of those statements, or
(vii) (A) there was any change in the consolidated capital stock,
or any increase in the long-term debt of the Company, or any decrease in
consolidated net assets, at a specified date not more than three days
prior to the date of such letter as compared with the corresponding
amounts shown in the most recent consolidated balance sheet or condensed
balance sheet incorporated by reference in the Prospectus, or
(B) there was any decrease in consolidated operating revenues or
net income for the period from the date of the latest consolidated balance
sheet or condensed balance sheet incorporated by reference in the
Prospectus to a specified date not later than three days prior to the date
of such letter as compared to such amounts for the corresponding period
during the previous year,
[except in all instances for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are disclosed in
such letter;]
(viii) they have carried out certain procedures and made certain
findings, specified in such letter, with respect to certain amounts and
percentages included in the Prospectus and the Incorporated Documents and
such other items as the Representative may reasonably request.
D-2
<PAGE>
EXHIBIT F
New Century Energies, Inc.
1225 Seventeenth Street
Denver, CO 80202
March 12, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: New Century Energies, Inc., et al.
Form U-1 Application/Declaration
(File No. 70-9397)
Dear Sirs:
I refer to the Form U-1 Application/Declaration, as amended (the
"Application"), under the Public Utility Holding Company Act of 1935, as amended
(the "Act"), filed jointly with the Securities and Exchange Commission (the
"Commission") by New Century Energies, Inc. ("NCE") and certain of its direct
and indirect subsidiaries, namely, Public Service Company of Colorado, Cheyenne
Light, Fuel and Power Company ("Cheyenne"), New Century Services, Inc., WestGas
Interstate, Inc., NC Enterprises, Inc. ("Enterprises"), New Century
International, Inc., e prime, inc., PS Colorado Credit Corporation, Natural
Fuels Corporation, P.S.R. Investments, Inc., Green and Clear Lakes Company, 1480
Welton, Inc., The Planergy Group, Inc., New Century-Cadence, Inc., Southwestern
Public Service Company, Quixx Corporation, and Utility Engineering Corporation
(each individually a "Subsidiary" and collectively the "Subsidiaries") (NCE and
the Subsidiaries collectively referred to as the "NCE Companies"). I have acted
as counsel for the NCE Companies in connection with the Application.
In the Application, the NCE Companies request that the Commission grant
them authorization to engage in various transactions (the "Proposed
Transactions"). Specifically, the authorizations relate to the following: (i)
external issues of common stock, short-term debt, unsecured debentures, and
other securities by NCE (the "NCE Securities"); (ii) the issuance of short-term
debt by Cheyenne; (iii) intrasystem financing among the NCE Companies,
including the issuance of intrasystem guarantees (to the extent such
transactions are not exempt under Rules 45(b) and 52); (iv) hedging
transactions entered into by NCE and the NCE Companies
<PAGE>
Securities and Exchange Commission
March 12, 1999
Page 2
(to the extent such transactions are not exempt under Rule 52); (v) the
formation of financing entities and their acquisition of notes and other
indebtedness of the Subsidiaries in consideration of their extended financing
(to the extent not exempt under Rules 45(b) and 52); (vi) the establishment of
intermediate holding company subsidiaries organized exclusively for the purpose
of acquiring, financing, and holding the securities of various non-utility
subsidiaries; (vii) the payment by Enterprises and its direct and indirect
subsidiaries of dividends out of capital and unearned surplus; and (viii) the
performance of certain affiliate transactions without regard to "cost" as
determined in accordance with Rules 90 and 91.
In connection with this opinion, I have examined original, certified,
or conformed copies of all such corporate records, agreements, instruments, and
documents of the Company, certificates of public officials and officers of the
Company, and have made such other investigations, as I have deemed necessary or
appropriate for the purpose of rendering this opinion. In my examination, I have
assumed the genuineness of all signatures, the authenticity of all documents
submitted to me as originals and the conformity to originals of all documents
submitted to me as conformed copies.
The opinions expressed below with respect to the Proposed Transactions
are subject to the following assumptions and conditions:
(a) The Proposed Transactions shall have been duly authorized and
approved, to the extent required by the governing documents and applicable state
laws, by the Board of Directors of NCE and/or the appropriate Subsidiary or
Subsidiaries.
(b) The Commission shall have duly entered an appropriate order or
orders with respect to the Proposed Transactions as described in the Application
granting and permitting the Application to become effective under the Act and
the rules and regulations thereunder and the Proposed Transactions are
consummated in accordance with the Application.
<PAGE>
Securities and Exchange Commission
March 12, 1999
Page 3
(c) Registration statements with respect to the NCE Securities
to be issued in connection with the Proposed Transactions shall have
become effective pursuant to the Securities Act of 1933, as amended; no stop
order shall have been entered with respect thereto; and the issuance of NCE
Securities in connection with the Proposed Transactions shall have
been consummated in compliance with the Securities Act of 1933, as amended,
and the rules and regulations thereunder.
(d) The parties shall have obtained all consents, waivers and releases,
if any, required for the Proposed Transactions under all applicable governing
corporate documents, contracts, agreements, debt instruments, indentures,
franchises, licenses, and permits.
(e) No act or event other than as described herein shall have occurred
subsequent to the date hereof which would change the opinions expressed above.
(f) The consummation of the Proposed Transactions shall be conducted
under my supervision and all legal matters incident thereto shall be
satisfactory to me, including the receipt in satisfactory form of opinions of
other counsel, qualified to practice in jurisdictions pertaining to such
Proposed Transactions in which I am not admitted to practice, as I may deem
appropriate.
Based on the foregoing, and subject to the assumptions and conditions
set forth herein, and having regard to legal considerations which I deem
relevant, I am of the opinion that, in the event the Proposed Transactions are
consummated in accordance with the Application:
1. All state laws applicable to the Proposed Transactions will have
been complied with; however, I express no opinion as to the need to comply with
state blue sky laws;
2. The NCE Companies are validly organized and duly existing under the
laws of their respective states of incorporation;
<PAGE>
Securities and Exchange Commission
March 12, 1999
Page 4
3. The equity securities to be issued by the NCE Companies in the
Proposed Transactions will be validly issued, fully paid and nonassessable, and
the holders thereof will be entitled to the rights and privileges appertaining
thereto set forth in the applicable certificates of incorporation which define
such rights and privileges;
4. The various debt instruments and guarantees to be issued by NCE and
certain of the Subsidiaries as part of the Proposed Transactions will be valid
and binding obligations of NCE and such Subsidiaries in accordance with the
terms of such instruments and guarantees; and
5. The consummation of the Proposed Transactions will not violate the
legal rights of the holders of any securities issued by the NCE Companies.
I hereby consent to the use of this opinion in connection with the
Application.
Sincerely,
Paul J. Bonavia
