EXHIBIT 4.1
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NEW NISOURCE INC.
To
THE CHASE MANHATTAN BANK
as Trustee
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INDENTURE
DATED AS OF __________, 2000
PROVIDING FOR ISSUANCE OF DEBT SECURITIES
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NEW NISOURCE INC.
Reconciliation and Tie between Trust Indenture Act of 1939,
as amended, and Indenture, dated as of __________, 2000
Trust Indenture Indenture
Act Section Section(s)
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(S)310(a)(1) . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . Not Applicable
(a)(5) . . . . . . . . . . . . . . . . 609
(b) . . . . . . . . . . . . . . . . . . 608, 610
(c) . . . . . . . . . . . . . . . . . . Not Applicable
(S)311(a) . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . 613
(c) . . . . . . . . . . . . . . . . . . 613
(S)312(a) . . . . . . . . . . . . . . . . . . 701, 702(a)
(b) . . . . . . . . . . . . . . . . . . 702(a)
(c) . . . . . . . . . . . . . . . . . . 702(b)
(S)313(a) . . . . . . . . . . . . . . . . . . 703(a)
(b) . . . . . . . . . . . . . . . . . . 703(b)
(c) . . . . . . . . . . . . . . . . . . 703(c)
(d) . . . . . . . . . . . . . . . . . . 703(c)
(S)314(a) . . . . . . . . . . . . . . . . . . 704
(a)(4) . . . . . . . . . . . . . . . . 101, 1009
(b) . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . 102
(f) . . . . . . . . . . . . . . . . . . Not Applicable
(S)315(a) . . . . . . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . . . . . . 514
(S)316(a)(1)(A) . . . . . . . . . . . . . . . 502, 512
(a)(1)(B) . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . 104
(S)317(a)(1) . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . 1003
(S)318(a) . . . . . . . . . . . . . . . . . . 108
NOTE: This Reconciliation and Tie shall not, for any purpose, be
deemed to be a part of the Indenture.
TABLE OF CONTENTS
PAGE
ARTICLE ONE - DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
Section 101. Definitions . . . . . . . . . . . . . . . . . . 1
Section 102. Compliance Certificates and Opinions . . . . . 9
Section 103. Form of Documents Delivered to Trustee . . . . 9
Section 104. Acts of Holders; Record Dates . . . . . . . . 10
Section 105. Notices, etc., to Trustee and Company . . . . 12
Section 106. Notice to Holders of Securities; Waiver . . . 13
Section 107. Language of Notices, etc. . . . . . . . . . . 14
Section 108. Conflict with Trust Indenture Act . . . . . . 14
Section 109. Effect of Headings and Table of Contents . . . 14
Section 110. Successors and Assigns . . . . . . . . . . . . 14
Section 111. Separability Clause . . . . . . . . . . . . . 14
Section 112. Benefits of Indenture . . . . . . . . . . . . 14
Section 113. Governing Law . . . . . . . . . . . . . . . . 14
Section 114. Legal Holidays . . . . . . . . . . . . . . . . 15
Section 115. Appointment of Agent for Service . . . . . . . 15
Section 116. No Adverse Interpretation of Other Agreements 15
Section 117. Execution in Counterparts . . . . . . . . . . 16
Section 118. Name of the Company . . . . . . . . . . . . . 16
ARTICLE TWO - SECURITY FORMS
Section 201. Forms Generally . . . . . . . . . . . . . . . 16
Section 202. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . . 17
Section 203. Securities in Global Form . . . . . . . . . . 17
Section 204. Form of Legend for Global Securities . . . . . 18
Section 205. Form of Legend for Bearer Securities . . . . . 18
ARTICLE THREE - THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series . . . . . 18
Section 302. Denominations . . . . . . . . . . . . . . . . 21
Section 303. Execution, Authentication, Delivery
and Dating . . . . . . . . . . . . . . . . . . 21
Section 304. Temporary Securities . . . . . . . . . . . . . 24
Section 305. Registration, Registration of Transfer
and Exchange . . . . . . . . . . . . . . . . . 25
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . . . 29
Section 307. Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . . . . . 30
Section 308. Persons Deemed Owners . . . . . . . . . . . . 32
Section 309. Cancellation . . . . . . . . . . . . . . . . . 32
Section 310. Computation of Interest . . . . . . . . . . . 33
Section 311. Form of Certification by a Person Entitled to
Receive a Bearer Security . . . . . . . . . . 33
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ARTICLE FOUR - SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture . . . 34
Section 402. Application of Trust Money . . . . . . . . . . 35
ARTICLE FIVE - REMEDIES
Section 501. Events of Default . . . . . . . . . . . . . . 36
Section 502. Acceleration of Maturity; Rescission
and Annulment . . . . . . . . . . . . . . . . 38
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . 39
Section 504. Trustee May File Proofs of Claim . . . . . . . 40
Section 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons . . . . . 41
Section 506. Application of Money Collected . . . . . . . . 41
Section 507. Limitation on Suits . . . . . . . . . . . . . 41
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest . . . . . . . 42
Section 509. Restoration of Rights and Remedies . . . . . . 42
Section 510. Rights and Remedies Cumulative . . . . . . . . 43
Section 511. Delay or Omission Not Waiver . . . . . . . . . 43
Section 512. Control by Holders of Securities . . . . . . . 43
Section 513. Waiver of Past Defaults . . . . . . . . . . . 43
Section 514. Undertaking for Costs . . . . . . . . . . . . 44
Section 515. Waiver of Stay or Extension Laws . . . . . . . 44
ARTICLE SIX - THE TRUSTEE
Section 601. Certain Duties and Responsibilities . . . . . 45
Section 602. Notice of Defaults . . . . . . . . . . . . . . 46
Section 603. Certain Rights of Trustee . . . . . . . . . . 46
Section 604. Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . . . . 47
Section 605. May Hold Securities . . . . . . . . . . . . . 48
Section 606. Money Held in Trust . . . . . . . . . . . . . 48
Section 607. Compensation and Reimbursement . . . . . . . . 48
Section 608. Disqualification; Conflicting Interests . . . 49
Section 609. Corporate Trustee Required; Eligibility . . . 49
Section 610. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . 50
Section 611. Acceptance of Appointment by Successor . . . . 51
Section 612. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . 53
Section 613. Preferential Collection of Claims Against
Company . . . . . . . . . . . . . . . . . . . 53
Section 614. Appointment of Authenticating Agent . . . . . 53
ARTICLE SEVEN - HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and
Addresses of Holders . . . . . . . . . . . . . 56
Section 702. Preservation of Information; Communications
to Holders . . . . . . . . . . . . . . . . . . 56
Section 703. Reports by Trustee . . . . . . . . . . . . . . 56
Section 704. Reports by Company . . . . . . . . . . . . . . 57
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ARTICLE EIGHT - CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER
OR LEASE
Section 801. Company May Consolidate, Etc., Only on
Certain Terms . . . . . . . . . . . . . . . . 57
Section 802. Successor Corporation Substituted . . . . . . 58
Section 803. Assumption by Subsidiary . . . . . . . . . . . 59
ARTICLE NINE - SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent
of Holders . . . . . . . . . . . . . . . . . . 59
Section 902. Supplemental Indentures with Consent
of Holders . . . . . . . . . . . . . . . . . . 61
Section 903. Execution of Supplemental Indentures . . . . . 62
Section 904. Effect of Supplemental Indentures. . . . . . . 62
Section 905. Conformity with Trust Indenture Act . . . . . 62
Section 906. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . . . 62
ARTICLE TEN - COVENANTS
Section 1001. Payment of Principal, Premium and Interest . 63
Section 1002. Maintenance of Office or Agency . . . . . . . 63
Section 1003. Money for Securities Payments to Be Held
in Trust . . . . . . . . . . . . . . . . . . 64
Section 1004. Additional Amounts . . . . . . . . . . . . . 66
Section 1005. Corporate Existence . . . . . . . . . . . . . 67
Section 1006. Maintenance of Properties . . . . . . . . . . 67
Section 1007. Payment of Taxes and Other Claims . . . . . . 67
Section 1008. Restrictions on Liens . . . . . . . . . . . . 67
Section 1009. Statement as to Default . . . . . . . . . . . 69
Section 1010. Waiver of Certain Covenants . . . . . . . . . 70
ARTICLE ELEVEN - REDEMPTION OF SECURITIES
Section 1101. Applicability of Article . . . . . . . . . . 70
Section 1102. Election to Redeem; Notice to Trustee . . . . 70
Section 1103. Selection by Trustee of Securities to Be
Redeemed . . . . . . . . . . . . . . . . . . 71
Section 1104. Notice of Redemption . . . . . . . . . . . . 71
Section 1105. Deposit of Redemption Price . . . . . . . . . 72
Section 1106. Securities Payable on Redemption Date . . . . 72
Section 1107. Securities Redeemed in Part . . . . . . . . . 73
ARTICLE TWELVE - SINKING FUNDS
Section 1201. Applicability of Article . . . . . . . . . . 73
Section 1202. Satisfaction of Sinking Fund Payments
with Securities . . . . . . . . . . . . . . . 74
Section 1203. Redemption of Securities for Sinking Fund . . 74
ARTICLE THIRTEEN - MEETINGS OF HOLDERS OF SECURITIES
Section 1301. Purposes for Which Meetings May be Called . . 75
Section 1302. Call Notice and Place of Meeting . . . . . . 75
Section 1303. Persons Entitled to Vote at Meetings . . . . 75
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Section 1304. Quorum; Action . . . . . . . . . . . . . . . 76
Section 1305. Determination of Voting Rights; Conduct
and Adjournment of Meetings . . . . . . . . . 76
Section 1306. Counting Votes and Recording Action
of Meetings . . . . . . . . . . . . . . . . . 77
Section 1307. Action Without Meeting . . . . . . . . . . . 78
ARTICLE FOURTEEN - IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS, DIRECTORS AND EMPLOYEES
Section 1401. Liability Solely Corporate . . . . . . . . . 78
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INDENTURE, dated as of __________, 2000, between New
NiSource Inc., a corporation duly organized and existing under the
laws of the State of Delaware (the "Company"), having its principal
office at 801 East 86th Avenue, Merrillville, Indiana 46410, and The
Chase Manhattan Bank, a corporation duly organized and existing under
the laws of the State of New York, having its principal corporate
trust office at 450 West 33rd Street, New York, New York 10001, as
trustee (the "Trustee").
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 debentures, notes or other evidences of indebtedness
(collectively, the "Securities," and each individually, a "Security"),
to be issued in one or more series 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.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, and the rules and regulations of
the Securities and Exchange Commission promulgated thereunder that are
required to be part of this Indenture and, to the extent applicable,
shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the
Securities or of series of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS. For all purposes of this
Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(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 in this Indenture which are
defined in the Trust Indenture Act, either directly or by
reference in that Act, have the meanings assigned to them in that
Act;
(3) all accounting terms not otherwise defined in this
Indenture have the meanings assigned to them in accordance with
generally accepted accounting principles in the United States of
America, and, except as otherwise expressly provided in this
Indenture, the term "generally accepted accounting principles"
with respect to any computation required or permitted under this
Indenture shall mean such accounting principles as are generally
accepted in the United States of America at the date of such
computation;
(4) the words "herein," "hereof," "hereto" 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; and
(5) the word "or" is always used inclusively (for example,
the phrase "A or B" means "A or B or both," not "either A or B
but not both").
Certain terms used principally in certain Articles are
defined in those Articles.
"Act," when used with respect to any Holder of a Security,
has the meaning specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes
of this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such
Person, directly or 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 any Person or Persons
authorized by the Trustee to act on behalf of the Trustee to
authenticate one or more series of Securities.
"Authorized Newspaper" means a newspaper, in an official
language of the country of publication or in the English language,
customarily published on each Business Day, whether or not published
on Saturdays, Sundays or holidays, and of general circulation in the
place in connection with which the term is used or in the financial
community of such place. Where successive publications are required
to be made in Authorized Newspapers, the successive publications may
be made in the same or in different newspapers in the same city
meeting the foregoing requirements and in each case on any Business
Day.
"Bearer Security" means any Security in the form for Bearer
Securities set forth in Section 203 or established pursuant to Section
2
201 which is payable to bearer and shall bear the legend specified in
Section 205.
"Board of Directors" means either the board of directors of
the Company, or any of its duly authorized committees.
"Board Resolution" means a copy of a resolution certified by
the Corporate Secretary or an Assistant Corporate Secretary of the
Company to have been duly adopted by the Board of Directors and to be
in full force and effect on the date of such certification, and
delivered to the Trustee.
"Business Day" means any day other than a Saturday or Sunday
or a day on which banks and trust companies located in the
municipality in which the Corporate Trust Office is located are
authorized or required by law, regulation or executive order to remain
closed.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Securities
Exchange Act of 1934, as amended, or, if at any time after the
execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the
first paragraph of this instrument until a successor shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter the term "Company" shall mean such successor.
"Consolidated Net Tangible Assets" means the total amount of
assets appearing on a consolidated balance sheet of Company and its
Subsidiaries other than the Utilities less, without duplication, the
following:
(a) all current liabilities (excluding any thereof which
are by their terms extendable or renewable at the sole option of
the obligor thereon without requiring the consent of the obligee
to a date more than 12 months after the date of determination);
(b) all reserves for depreciation and other asset valuation
reserves but excluding any reserves for deferred Federal income
taxes arising from accelerated amortization or otherwise;
(c) all intangible assets such as goodwill, trademarks,
trade names, patents and unamortized debt discount and expense
carried as an asset on said balance sheet; and
(d) all appropriate adjustments on account of minority
interests of other Persons holding Common Stock in any
Subsidiary.
3
Consolidated Net Tangible Assets shall be determined in
accordance with generally accepted accounting principles and as of a
date not more than 90 days prior to the happening of the event for
which such determination is being made.
"Corporate Trust Office" means the corporate trust office of
the Trustee of a series of Securities at which at any particular time
its corporate trust business shall be administered, which office on
the date of execution of this Indenture is located at 450 West 33rd
Street, New York, New York 10001, Attention: Capital Markets
Fiduciary Services, except that with respect to presentation of
Securities of a series for payment or for registration of transfer or
exchange, such term shall mean the office or agency of the Trustee of
such series designated for such purpose, which office or agency on the
date of execution of this Indenture is located at 55 Water Street,
Room 234, New York, New York 10041.
"Corporation" includes any corporation, association,
company, limited liability company or business trust.
"Defaulted Interest" has the meaning specified in Section
307.
"Depositary" means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or
more Global Securities, a clearing agency registered under the
Securities Exchange Act of 1934, as amended, specified for that
purpose as contemplated by Section 301 or any successor clearing
agency registered under such Act as contemplated by Section 305, and
if at any time there is more than one such Person, the term
"Depositary" as used with respect to the Securities of any series
shall mean the Depositary with respect to the Securities of such
series.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States of America as at the time
shall be legal tender for the payment of public and private debts.
"Event of Default" has the meaning specified in Section 501.
"Global Security" means a Security bearing the legend
specified in Section 204 evidencing all or part of a series of
Securities, issued to the Depositary for such series or its nominee,
and registered in the name of such Depositary or nominee.
"Holder," when used with respect to any Security, means in
the case of a Registered Security the Person in whose name the
Security is registered in the Security Register and in the case of a
Bearer Security the bearer thereof and, when used with respect to any
coupon, means the bearer thereof.
4
"Indenture" means this instrument as originally executed or
as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions of this Indenture.
"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 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.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Controller, an Assistant
Controller, the Corporate Secretary or an Assistant Corporate
Secretary, of the Company that complies with the requirements of
Section 314(c) of the Trust Indenture Act and is delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company and who shall be acceptable to the
Trustee, that complies with the requirements of Section 314(c) of the
Trust Indenture Act and Section 102 of this Indenture.
"Original Issue Discount Security" means any Security which
provides for an amount less than its principal amount to be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502.
"Outstanding," when used with respect to Securities, means,
as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities 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 and any coupons thereto appertaining; PROVIDED, that
if such Securities are to be redeemed, notice of such redemption
5
has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(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 PROVIDED FURTHER, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have been
given any request, demand, authorization, direction, notice, consent
or waiver under this Indenture or are present at a meeting of Holders
of Securities for quorum purposes, 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
protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver or upon any such determination as
to the presence of a quorum, only Securities which the Trustee knows
to be so owned shall be so disregarded. 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.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any
Securities on behalf of the Company.
"Person" means any individual, Corporation, limited
liability company, partnership, joint venture, joint-stock company,
trust, unincorporated organization, government or any agency or
political subdivision thereof, or any other entity.
"Place of Payment," when used with respect to the Securities
of any series, means the place or places where the principal of (and
premium, if any) and interest on the Securities of that series 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 evidence the same debt as the
mutilated, destroyed, lost or stolen Security.
6
"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 established
pursuant to Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Registered Securities of any series means
the date specified for that purpose as contemplated by Section 301.
"Request" or "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 Corporate Secretary or an
Assistant Corporate Secretary, and delivered to the Trustee.
"Responsible Officer," when used with respect to the
Trustee, means any Vice President, any assistant secretary, any
assistant treasurer, any cashier, any assistant cashier, any senior
trust officer, any trust officer or assistant trust officer, any
assistant controller or any other officer of the Trustee customarily
performing corporate trust functions on behalf of the Trustee and also
means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Securities" and "Security" have the meanings stated in the
first recital of this Indenture and more particularly means any
Securities authenticated and delivered under this Indenture; PROVIDED,
that if at any time there is more than one Person acting as Trustee
under this Indenture, the term "Securities," with respect to any such
Person, shall mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which
such Person is not Trustee.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted
Interest on the Registered Securities of any series 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 of such Security or interest on such
Security, means the date specified in such Security or a coupon
representing such installment of interest as the fixed date on which
7
the principal of such Security or such installment of principal or
interest is due and payable.
"Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly, by
the Company or by one or more other Subsidiaries, or by the Company
and one or more other Subsidiaries. For the purposes of this
definition, the term "voting stock" means stock which ordinarily has
voting power for the election of directors, whether at all times or
only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended, and any reference in this Indenture to the Trust Indenture
Act or a particular provision thereof shall mean such Act or
provision, as the case may be, as amended or replaced from time to
time or as supplemented from time to time by rules or regulations
adopted by the Commission under or in furtherance of the purposes of
such Act or provision, as the case may be.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this instrument until a successor Trustee shall
have become such with respect to one or more series of Securities
pursuant to the applicable provisions of this Indenture, and
thereafter the term "Trustee" shall mean or include each Person who is
then a Trustee under this Indenture and, if at any time there is more
than one such Person, the term "Trustee," as used with respect to the
Securities of any series, shall mean the Trustee with respect to
Securities of that series.
"United States" means the United States of America
(including the States and the District of Columbia), its territories
and possessions and other areas subject to its jurisdiction.
"United States Alien" means any Person who, for United
States Federal income tax purposes, is a foreign corporation, a non-
resident alien individual, a non-resident alien fiduciary of a foreign
estate or trust, or a foreign partnership one or more of the members
of which is, for United States Federal income tax purposes, a foreign
corporation, a non-resident alien individual or a non-resident alien
fiduciary of a foreign estate or trust.
"Utility" means any subsidiary of the Company that is
subject to regulation by a federal or state utility regulatory
commission or other utility regulatory body.
"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, the Company shall
furnish to the Trustee an Officers' 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 specifically required by any provision of this
Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certifi-
cate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of 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
(4) 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.
Any certificate or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate
or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the matters
upon which 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
9
the information with respect to such factual matters is in the
possession of the Company unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
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; RECORD DATES.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided in or pursuant to this
Indenture to be made, given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor
signed by such Holders in person or by an agent duly appointed in
writing. If Securities of a series are issuable as Bearer Securities,
any request, demand, authorization, direction, notice, consent, waiver
or other action provided in or pursuant to this Indenture to be made,
given or taken by Holders may, alternatively, be embodied in and
evidenced by the record of Holders of Securities voting in favor
thereof, either in person or by proxies duly appointed in writing, at
any meeting of Holders of Securities duly called and held in
accordance with the provisions of Article Thirteen, or a combination
of such instrument or instruments and any such record. Except as
herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are
delivered to the Trustee and, where it is hereby expressly required,
to the Company. Such instrument or instruments and any such record
(and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such
instrument or instruments and so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such
agent, or of the holding by any Person of a Security, shall be
sufficient for any purpose of this Indenture and (subject to Section
601) conclusive in favor of the Trustee and the Company if made in the
manner provided in this Section. The record of any meeting of Holders
of Securities shall be proved in the manner provided in Section 1306.
Notwithstanding the foregoing, with respect to any Global
Security, nothing herein shall prevent the Company, the Trustee, or
any agent of the Company or the Trustee, from giving effect to any
request, demand, authorization, direction, notice, consent, waiver or
other action provided in this Indenture to be given or taken by a
Depositary or impair, as between a Depositary and such holders of
beneficial interests, the operation of customary practices governing
the exercise of the rights of the Depositary (or its nominee) as
Holder of any Security.
Without limiting the generality of this Section 104, unless
otherwise provided in or pursuant to this Indenture, a Holder,
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including a Depositary that is a Holder of a Global Security, may
make, give or take, by a proxy or proxies duly appointed in writing,
any request, demand, authorization, direction, notice, consent, waiver
or other action provided in or pursuant to this Indenture to be made,
given or taken by Holders, and a Depositary that is a Holder of a
Global Security may give its proxy or proxies to the Depositary's
participants or the beneficial owners of interests in any such Global
Security, as the case may be, through such Depositary's standing
instructions and customary practices.
Subject to the next succeeding paragraph, the Company may,
in the circumstances permitted by the Trust Indenture Act, fix any day
as the record date for the purpose of determining the Holders of
Securities of any series entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action, or
to vote on any action, authorized or permitted to be given or taken by
Holders of Securities of such series. If not set by the Company prior
to the first solicitation of a Holder of Securities of such series
made by any Person in respect of any such action, or in the case of
any such vote, prior to such vote, the record date for any such action
or vote shall be the 30th day prior to such first solicitation or
vote, or, if later, the date of the most recent list of Holders
required to be provided pursuant to Section 701, as the case may be.
With regard to any record date for action to be taken by the Holders
of one or more series of Securities, only the Holders of Securities of
such series on such date (or their duly designated proxies) shall be
entitled to give or take, or vote on, the relevant action.
The Trustee shall fix a record date for the purpose of
determining the Persons who are beneficial owners of interests in any
permanent Global Security held by a Depositary and who are entitled
under the procedures of such Depositary to make, give or take, by a
proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action
provided in or pursuant to this Indenture to be made, given or taken
by Holders. If such a record date is fixed, the Holders on such
record date or their duly appointed proxy or proxies, and only such
Persons, shall be entitled to make, give or take such request, demand,
authorization, direction, notice, consent, waiver or other action,
whether or not such Holders remain Holders after such record date. No
such request, demand, authorization, direction, notice, consent,
waiver or other action shall be valid or effective if made, given or
taken more than 90 days after such record date.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved in any reasonable manner
which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Registered
Securities held by any Person, and the date of holding the same, shall
be proved by the Security Register.
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(d) The principal amount and serial numbers of Bearer
Securities held by any Person executing any such instrument or writing
as a Holder of Securities, and the date of his holding the same, may
be proved by the production of such Bearer Securities or by a
certificate executed, as depositary, by any trust company, bank,
banker or other depositary, wherever situated, if such certificate
shall be deemed by the Trustee to be satisfactory, showing that at the
date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate or affidavit
of the Person executing such instrument or writing as a Holder of
Securities, if such certificate or affidavit is deemed by the Trustee
to be satisfactory. The Trustee and the Company may assume that such
ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect of the
same Bearer Security is produced, or (2) such Bearer Security is
produced to the Trustee by some other Person, or (3) such Bearer
Security is surrendered in exchange for a Registered Security, or (4)
such Bearer Security is no longer Outstanding.
(e) The fact and date of execution of any such instrument
or writing, the authority of the Person executing the same, the
principal amount and serial numbers of Bearer Securities held by the
Person so executing such instrument or writing and the date of holding
the same may also be proved in any other reasonable manner which the
Trustee deems sufficient; and the Trustee may in any instance require
further proof with respect to any of the matters referred to in this
Section.
(f) Any request, demand, authorization, direction, notice,
consent, election, 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.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY. Any
request, demand, authorization, direction, notice, consent, election,
waiver or other Act of Holders of a series of Securities or other
document provided or permitted by this Indenture to be made upon,
given or furnished to, or filed with,
(1) the Trustee of such series by any Holder of a Security
of such series or by the Company shall be sufficient for every
purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee of such series at its Corporate Trust
Office, or
(2) the Company by the Trustee of such series or by any
Holder of a Security of such series shall be sufficient for every
12
purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the
Company, addressed to the attention of its Corporate Secretary,
at 801 East 86th Avenue, Merrillville, Indiana 46410, or at any
other address previously furnished in writing to the Trustee of
such series by the Company.
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of Securities (of any series) of any
event,
(1) such notice shall be sufficiently given to Holders of
Registered Securities of such series if in writing and mailed,
first-class postage prepaid, to each Holder of a Registered
Security of such series 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; and
(2) such notice shall be sufficiently given to Holders of
Bearer Securities of such series if published in an Authorized
Newspaper in the Borough of Manhattan, The City of New York and,
if the Securities of such series are then listed on The Stock
Exchange of the United Kingdom and the Republic of Ireland and
such stock exchange shall so require, in London and, if the
Securities of such series are then listed on the Luxembourg Stock
Exchange and such stock exchange shall so require, in Luxembourg
and, if the Securities of such series are then listed on any
other stock exchange outside the United States and such stock
exchange shall so require, in any other required city outside the
United States or, if not practicable, in Europe, on a Business
Day at least twice, the first such publication to be not earlier
than the earliest date and not later than the latest date
prescribed for the giving of such notice.
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. In any case where notice to Holders of
Registered Securities is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular
Holder of a Registered Security shall affect the sufficiency of such
notice with respect to other Holders of Registered Securities or the
sufficiency of any notice by publication to Holders of Bearer
Securities given as provided above.
In case by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any
other cause it shall be impracticable to publish any notice to Holders
of Bearer Securities of any series as provided above, then such
13
notification to Holders of such Bearer Securities as shall be given
with the approval of the Trustee for such series shall constitute
sufficient notice to such Holders for every purpose hereunder.
Neither failure to give notice by publication to Holders of Bearer
Securities as provided above, nor any defect in any notice so
published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders of Securities
shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance
upon such waiver.
SECTION 107. LANGUAGE OF NOTICES, ETC. Any request,
demand, authorization, direction, notice, consent, election 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 108. CONFLICT WITH TRUST INDENTURE ACT. If any
provision hereof limits, qualifies or conflicts with any duties under
any required provision of the Trust Indenture Act deemed included
herein by Section 318(c) thereof, such required provision shall
control.
SECTION 109. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 110. 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 111. SEPARABILITY CLAUSE. In case any provision
in this Indenture or the Securities or coupons shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 112. BENEFITS OF INDENTURE. Nothing in this
Indenture or the Securities or coupons, express or implied, shall give
to any Person, other than the parties hereto, their successors
hereunder and the Holders of Securities and coupons, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 113. GOVERNING LAW. This Indenture and the
Securities and coupons shall be governed by and construed in
accordance with the internal law of the State of New York, without
giving effect to any contrary conflict of laws or choice of law
14
provisions of the law of the State of New York or any other
jurisdiction.
SECTION 114. LEGAL HOLIDAYS. In any case where any
Interest Payment Date, Redemption Date or Stated Maturity of any
Security shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of the
Securities or coupons) 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; PROVIDED,
that 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.
SECTION 115. APPOINTMENT OF AGENT FOR SERVICE. By the
execution and delivery of this Indenture, the Company hereby appoints
the Trustee as its agent upon which process may be served in any
legal action or proceeding which may be instituted in any Federal or
State court in the Borough of Manhattan, The City of New York, arising
out of or relating to the Securities, the coupons or this Indenture.
Service of process upon such agent at the office of such agent at 450
West 33rd Street, New York, New York 10001, Attention: Capital Markets
Fiduciary Services (or such other address in the Borough of Manhattan,
The City of New York, as may be the Corporate Trust Office of the
Trustee), and written notice of said service to the Company by the
Person serving the same addressed as provided in Section 105, shall be
deemed in every respect effective service of process upon the Company
in any such legal action or proceeding, and the Company hereby submits
to the jurisdiction of any such court in which any such legal action
or proceeding is so instituted. Such appointment shall be irrevocable
so long as the Holders of Securities or coupons shall have any rights
pursuant to the terms thereof or of this Indenture until the
appointment of a successor by the Company with the consent of the
Trustee and such successor's acceptance of such appointment. The
Company further agrees to take any and all action, including the
execution and filing of any and all such documents and instruments, as
may be necessary to continue such designation and appointment of such
agent or successor.
By the execution and delivery of this Indenture, the Trustee
hereby agrees to act as such agent and undertakes promptly to notify
the Company of receipt by it of service of process in accordance with
this Section.
SECTION 116. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan
or debt agreement of the Company or any Affiliate thereof. No such
indenture, loan or debt agreement may be used to interpret this
Indenture.
15
SECTION 117. EXECUTION IN COUNTERPARTS. 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.
SECTION 118. NAME OF THE COMPANY. The Company, NiSource
Inc., an Indiana corporation ("NiSource"), Columbia Energy Group, a
Delaware corporation ("Columbia"), Parent Acquisition Corp., an
Indiana corporation, Company Acquisition Corp., a Delaware
corporation, and NiSource Finance Corp., an Indiana corporation, have
entered into the Agreement and Plan of Merger dated as of February 27,
2000, as amended and restated as of March 31, 2000 (the "Merger
Agreement"), pursuant to which, among other things, NiSource and
Columbia will become wholly owned subsidiaries of the Company and the
former stockholders of NiSource and Columbia will become stockholders
of the Company (the "Merger"). The Merger will become effective
contemporaneously with the execution and delivery of this Indenture by
the Company. Immediately following the Merger, NiSource will merge
with and into the Company, and the Company will immediately thereafter
change its name from New Nisource Inc. to NiSource Inc. Accordingly,
after the Company has so changed its name, all references in this
Indenture and in any Securities issued under this Indenture to the
Company's former name shall be deemed to refer to its new name,
NiSource Inc.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY. The Registered Securities,
if any, of each series and the Bearer Securities, if any, of each
series and related coupons and the Global Securities, if any, issued
pursuant to this Indenture shall be in such form as shall be
established by or pursuant to a Board Resolution of the Company or in
one or more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the
rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities or coupons, as
evidenced by their execution of the Securities or coupons (but which
do not affect the rights or duties of the Trustee). If the forms of
Securities or coupons of any series are established by action taken
pursuant to a Board Resolution of the Company, a copy of an
appropriate record of such action shall be certified by the Corporate
Secretary or an Assistant Corporate Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Order of
the Company contemplated by Section 303 for the authentication and
delivery of such Securities or coupons.
16
The Trustee's certificates of authentication shall be in
substantially the form set forth in this Article or Article Six.
Unless otherwise provided as contemplated by Section 301
with respect to any series of Securities, the Securities of each
series shall be issuable in global and registered form without
coupons. If so provided as contemplated by Section 301, the
Securities of a series also shall be issuable in bearer form, with or
without interest coupons attached.
The definitive Securities and coupons, if any, shall be
printed, lithographed or engraved on steel engraved borders or may be
produced in any other manner permitted by the rules of any applicable
securities exchange, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities or
coupons.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION. Subject to Section 614, the Trustee's certificate of
authentication shall be in substantially the following form:
This is one of the Securities of the series referred to in
the within-mentioned Indenture.
The Chase Manhattan Bank, as Trustee
By:_____________________________________
Authorized Officer
SECTION 203. SECURITIES IN GLOBAL FORM. If Securities of
a series are issuable in global form, any such Security may provide
that it or any number of such Securities shall represent the aggregate
amount of all Outstanding Securities of such series (or such lesser
amount as is permitted by the terms thereof) from time to time
endorsed thereon and may also provide that the aggregate amount of
Outstanding Securities represented thereby may from time to time be
increased or reduced to reflect exchanges. Any endorsement of any
Security in global form to reflect the amount, or any increase or
decrease in the amount, or changes in the rights of Holders, of
Outstanding Securities represented thereby shall be made in such
manner and by such Person or Persons as shall be specified therein or
in the Order of the Company to be delivered pursuant to Sections 303
or 304 with respect thereto. Subject to the provisions of Section 303
and, if applicable, Section 304, the Trustee shall deliver and
redeliver any Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified therein or in
the applicable Order of the Company. If the Order of the Company
pursuant to Sections 303 or 304 has been, or simultaneously is,
delivered, any instructions by the Company with respect to a Security
in global form shall be in writing but need not be accompanied by or
17
contained in an Officers' Certificate and need not be accompanied by
an Opinion of Counsel.
SECTION 204. FORM OF LEGEND FOR GLOBAL SECURITIES. Any
Global Security authenticated and delivered hereunder shall bear a
legend in substantially the following form, or in such other form that
is acceptable to the Depositary and the Trustee:
"Unless and until it is exchanged in whole or in part for
Securities in definitive registered form, this Security may not be
transferred except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such successor
Depositary."
SECTION 205. FORM OF LEGEND FOR BEARER SECURITIES. Any
Bearer Security authenticated and delivered hereunder shall bear a
legend in substantially the following form:
"Any United States person who holds this Security will be
subject to limitations under the United States income tax laws,
including the limitation provided in Sections 165(j) and 1287(a) of
the Internal Revenue Code of 1986, as amended."
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES. The
aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution of the
Company, and set forth in an Officers' Certificate of the Company, 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 Securities of all
other series issued by the Company);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for,
or in lieu of, other Securities of the series pursuant to Section
304, 305, 306, 906 or 1107);
18
(3) the date or dates on which the principal of the Securi-
ties of the series is payable;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or any method by which such rate or
rates shall be determined, the basis upon which interest will be
computed if other than that specified in Section 310, the date or
dates from which such interest shall accrue, the Interest Payment
Dates on which such interest shall be payable and the Regular
Record Date for the interest payable on Registered Securities on
any Interest Payment Date;
(5) the place or places where the principal of (and
premium, if any) and interest, if any, on Securities of the
series shall be payable;
(6) whether Securities of such series may be redeemed, and
if so, the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the option of the
Company;
(7) the obligation, if any, of the Company to redeem or
purchase Securities of the series 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
shall be redeemed or purchased, in whole or in part, pursuant to
such obligation;
(8) whether Bearer Securities of the series are to be
issuable;
(9) if Bearer Securities of the series are to be issuable,
whether interest in respect of any portion of a temporary Bearer
Security in global form (representing all of the Outstanding
Bearer Securities of the series) payable in respect of an
Interest Payment Date prior to the exchange of such temporary
Bearer Security for definitive Securities of the series shall be
paid to any clearing organization with respect to the portion of
such temporary Bearer Security held for its account and, in such
event, the terms and conditions (including any certification
requirements) upon which any such interest payment received by a
clearing organization will be credited to the Persons entitled to
interest payable on such Interest Payment Date;
(10) the date as of which any Bearer Securities of the
series, any temporary Bearer Security in global form and any
Global Securities shall be dated if other than the date of
original issuance of the first Security of the series to be
issued;
19
(11) the denominations in which Registered Securities of the
series, if any, shall be issuable if other than denominations of
$1,000 and any integral multiple thereof, and the denominations
in which Bearer Securities of the series, if any, shall be
issuable if other than the denomination of $5,000;
(12) the currency or currencies, including composite cur-
rencies, in which payment of the principal of (and premium, if
any) and interest, if any, on the Securities of the series shall
be payable (if other than the currency of the United States of
America);
(13) if the amount of payments of principal of (and premium,
if any) or interest on the Securities of the series may be
determined with reference to an index, the manner in which such
amounts shall be determined;
(14) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall
be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502;
(15) any additional Events of Default or additional
covenants of the Company pertaining to the Securities of the
series;
(16) whether and under what circumstances the Company will
pay additional amounts on the Securities of the series held by a
Person who is a United States Alien in respect of taxes or
similar charges withheld or deducted and, if so, whether the
Company will have the option to redeem such Securities rather
than pay such additional amounts;
(17) whether any Securities of the series are to be issuable
in whole or in part in the form of one or more Global Securities
and, if so, (a) the Depositary with respect to such Global
Security or Securities and (b) the circumstances under which
beneficial owners of interests in any such Global Security may
exchange such interest for Securities of the same series and of
like tenor and of any authorized form and denomination, and the
circumstances under which any such exchange may occur, if other
than as set forth in Section 305;
(18) if any of such Securities are to be issued in global
form and are to be issuable in definitive form (whether upon
original issue or upon exchange of a temporary Security) only
upon receipt of certain certificates or other documents or
satisfaction of other conditions, then the form and terms of such
certificates, documents, or conditions; and
(19) any other terms of the series (which terms shall not be
inconsistent with the terms of this Indenture).
20
All Securities of any one series and the coupons appertaining to
Bearer Securities of such series, if any, shall be substantially
identical except, in the case of Registered Securities, as to
denomination and except as may otherwise be provided in or pursuant to
such Board Resolution and set forth in such Officers' Certificate or
in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution of the Company, a copy of an
appropriate record of such action shall be certified by the Corporate
Secretary or an Assistant Corporate Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate of the Company setting forth the terms of the series.
Such Board Resolution may provide general terms or parameters for
Securities of such series and may provide that the specific terms of
particular Securities of such series, and the Persons authorized to
determine such terms or parameters, may be determined in accordance
with or pursuant to the Order of the Company referred to in the third
paragraph of Section 303.
SECTION 302. DENOMINATIONS. Unless otherwise provided as
contemplated by Section 301 with respect to any series of Securities,
the Registered Securities of each series shall be issuable in
denominations of $1,000 or any integral multiple thereof and the
Bearer Securities of each series, if any, shall be issuable in the
denomination of $5,000.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND
DATING. The Securities shall be executed on behalf of the Company by
its Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by
its Corporate Secretary or one of its Assistant Corporate Secretaries.
The signature of any of these officers on the Securities may be manual
or facsimile. Coupons shall bear the facsimile signature of the
Treasurer or any Assistant Treasurer of the Company.
Securities and coupons bearing the manual or facsimile
signatures of individuals who were at any time relevant to the
authorization thereof the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery
of such Securities or did not hold such offices at the date of such
Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any
series executed on behalf of the Company to the Trustee for
authentication by the Trustee together with an Order of the Company
for the authentication and delivery of such Securities, and the
Trustee in accordance with such Order shall authenticate and deliver
such Securities; PROVIDED, that in connection with its original
issuance, a Bearer Security may be delivered only outside the United
21
States and only if the Trustee shall have received from the Person
entitled to receive such Bearer Security a certificate in the form
required by Section 311; and PROVIDED FURTHER, that, with respect to
Securities of a series constituting a medium term note program, the
Trustee shall authenticate and deliver 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 an Order of the Company. The maturity dates, original issue
dates, interest rates and any other terms of the Securities of a
subseries of any medium term note program shall be determined by or
pursuant to such Order of the Company and procedures.
In authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to
Sections 315(a) through 315(d) of the Trust Indenture Act) shall be
fully protected in relying upon:
(a) the Board Resolution of the Company or indenture
supplemental hereto establishing the form of the Securities of
that series pursuant to Section 201 and the terms of the
Securities of that series pursuant to Section 301 (or, in the
case of a Board Resolution, pursuant to which such form and terms
are established);
(b) an Officer's Certificate pursuant to Sections 201 and
301 and complying with Section 102; and
(c) an Opinion of Counsel complying with Section 102
stating,
(i) that the forms of such Securities and coupons, if
any, have been established by or pursuant to a Board
Resolution of the Company or by an indenture supplemental
hereto, as permitted by Section 201 and in conformity with
the provisions of this Indenture;
(ii) that the terms of such Securities have been
established by or pursuant to a Board Resolution of the
Company or by an indenture supplemental hereto, as permitted
by Sections 201 and 301 and in conformity with the
provisions of this Indenture;
(iii) that such Securities, together with the
coupons, if any, appertaining thereto, when authenticated
and delivered by the Trustee and issued by the Company in
the manner and subject to any customary conditions specified
in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company entitled to the
benefits provided by the Indenture, enforceable in
accordance with their respective terms, except to the extent
22
that the enforcement of such obligations may be subject to
bankruptcy laws or insolvency laws or other similar laws,
general principles of equity and such other qualifications
as such counsel shall conclude are customary or do not
materially affect the rights of the Holders of such
Securities;
(iv) that all laws and requirements in respect of the
execution and delivery of the Securities have been complied
with; and
(v) such other matters as the Trustee may reasonably
request.
With respect to Securities of a subseries of a medium term
note program, the Trustee may conclusively rely on the documents and
opinion delivered pursuant to Sections 201 and 301 and this Section
303, as applicable (unless revoked by superseding comparable documents
or opinions), with respect to the establishment of the medium term
note program as to the authorization of the Board of Directors of any
Securities delivered hereunder, the form thereof and the legality,
validity, binding effect and enforceability thereof.
Notwithstanding the provisions of Section 301 and of the
preceding two paragraphs, if not all the Securities of any series are
to be issued at one time, it shall not be necessary to deliver the
Officers' Certificate otherwise required pursuant to Section 301 or
the documents otherwise required pursuant to the preceding clauses
(a), (b) or (c) prior to or at the time of issuance of each Security,
but such documents shall be delivered prior to or at the time of
issuance of the first Security of such series and shall pertain to all
of the Securities of such series. After any such first delivery, any
separate Request by the Company that the Trustee authenticate
Securities of such series for original issue will be deemed to be a
certification by the Company that all conditions precedent provided
for in this Indenture relating to authentication and delivery of such
Securities continue to have been complied with.
If such forms or terms have been so established by or
pursuant to a Board Resolution of the Company or by an indenture
supplemental hereto as permitted by Sections 201 and 301, the Trustee
shall have the right to decline to authenticate and deliver any
Securities of such series:
(i) if the Trustee, being advised by counsel, determines
that such action may not lawfully be taken;
(ii) if the Trustee in good faith by its board of directors,
executive committee or a committee of directors or Responsible
Officers of the Trustee in good faith determines that such action
would expose the Trustee to personal liability to Holders of any
Outstanding series of Securities; or
23
(iii) if the issue of such Securities pursuant to this
Indenture will affect the Trustee's own rights, duties and
immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
If the Company shall establish pursuant to Section 301 that
the Securities of a series are to be issued in whole or in part 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 Order
of the Company with respect to such series, authenticate and deliver
one or more Global Securities in permanent form that (i) shall
represent and shall be denominated in an amount equal to the aggregate
principal amount of the Outstanding Securities of such series to be
represented by such Global Security or Securities, (ii) shall be
registered, if in registered form, in the name of the Depositary for
such Global Security or Securities or the nominee of such Depositary,
(iii) shall be delivered by the Trustee to such Depositary or pursuant
to such Depositary's instruction and (iv) shall bear a legend as
required by Section 204.
Each Registered Security shall be dated the date of its
authentication. Each Global Security, each Bearer Security and any
temporary Bearer Security in global form shall be dated as of the date
specified as contemplated by Section 301.
No Security or related coupon shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose
unless there appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee
by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has
been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. Except as permitted by Section 306 or
307, the Trustee shall not authenticate and deliver any Bearer
Security unless all appurtenant coupons for interest then matured and
paid or payment duly provided for have been detached and canceled.
SECTION 304. TEMPORARY SECURITIES. Pending the
preparation of definitive Securities of any series, the Company may
execute, and upon an Order of the Company the Trustee shall authenti-
cate and deliver, 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, in registered form or, if
authorized, in bearer form with one or more coupons or without
coupons, and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such
Securities may determine, as evidenced by their execution of such
Securities (but which do not affect the rights or duties of the
Trustee). In the case of Bearer Securities of any series, such
temporary Securities may be in global form, representing all of the
outstanding Bearer Securities of such series.
24
Except in the case of temporary Securities in global form,
which shall be exchanged in accordance with the provisions thereof, if
temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreason-
able delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable
for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the
Company in a Place of Payment for that series, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series (accompanied by any unmatured coupons
appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor (at an office or agency
of the Company in the case of Bearer Securities) a like principal
amount of definitive Securities of the same series of authorized
denominations and of like tenor; PROVIDED, that no definitive Bearer
Security shall be delivered in exchange for a temporary Registered
Security; and PROVIDED FURTHER, that no definitive Bearer Security
shall be delivered in exchange for a temporary Bearer Security unless
the Trustee shall have received from the Person entitled to receive
the definitive Bearer Security a certificate in the form required by
Section 311. Until so exchanged, the temporary Securities of any
series, including temporary Securities in global form, shall in all
respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE. The Company shall cause to be kept at one of its offices
or agencies designated pursuant to Section 1002 a register (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 Registered Securities of each series and of transfers
and exchanges of Registered Securities of such series. Said office or
agency is hereby appointed the security registrar (referred to as the
"Security Registrar") for the purpose of registering Registered
Securities of each series and transfers and exchanges of Registered
Securities of such series as herein provided.
Upon surrender for registration of transfer of any
Registered Security of any series at the office or agency in a Place
of Payment maintained for such purpose for such series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new
Registered Securities of the same series, Stated Maturity and original
issue date, of any authorized denominations and of like tenor and
aggregate principal amount.
At the option of the Holder, Registered Securities of any
series (except a Global Security representing all or a portion of such
series) may be exchanged for Registered Securities of the same series,
Stated Maturity and original issue date, of any authorized
denominations and of like tenor and aggregate principal amount, upon
25
surrender of the Securities to be exchanged at any such office or
agency.
At the option of the Holder, Bearer Securities of any series
may be exchanged for Registered Securities of the same series, Stated
Maturity and original issue date, of any authorized denominations and
of like tenor and aggregate principal amount, upon surrender of the
Bearer Securities to be exchanged at any such office or agency, with
all unmatured coupons and all matured coupons in default thereto
appertaining. If the Holder of a Bearer Security is unable to produce
any such unmatured coupon or coupons or matured coupon or coupons in
default, such exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company and the
Trustee in an amount equal to the face amount of such missing coupon
or coupons, or the surrender of such missing coupon or coupons may be
waived by the Company and the Trustee if there be furnished to them
such security or indemnity as they may require to save each of them
and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to any Paying Agent any such missing coupon
in respect of which such a payment shall have been made, such Holder
shall be entitled to receive the amount of such payment; PROVIDED,
that except as otherwise provided in Section 1002, interest
represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside the
United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such office or agency in
exchange for a Registered Security of the same series after the close
of business at such office or agency on (i) any Regular Record Date
and before the opening of business at such office or agency on the
relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related
date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment Date
or proposed date of payment, as the case may be.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver,
the Securities which the Holder making the exchange is entitled to
receive.
All Securities 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 Registered 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.
26
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, to register
the transfer of or to exchange Securities of any series during a
period of 15 Business Days immediately preceding the date notice is
given identifying the serial numbers of the Securities of that series
called for redemption, or (ii) to issue, to register the transfer of
or to exchange any Registered Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being
redeemed in part, or (iii) to exchange any Bearer Security so selected
for redemption except that such a Bearer Security may be exchanged for
a Registered Security of that series, PROVIDED, that such Registered
Security shall be immediately surrendered for redemption with written
instruction for payment consistent with the provisions of this
Indenture.
Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 301, any Global Security shall be
exchangeable pursuant to this Section 305 or Sections 304, 306, 906 or
1107 for Securities registered in the name of, and a transfer of a
Global Security of any series may be registered to, any Person other
than the Depositary for such Global Security or its nominee only if:
(i) such Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for such Global
Security or if at any time such Depositary ceases to be a
clearing agency registered under the Securities Exchange Act of
1934, as amended, and a successor Depositary is not appointed by
the Company within 90 days;
(ii) the Company executes and delivers to the Trustee an
Order of the Company that such Global Security shall be so
exchangeable and the transfer thereof so registrable; or
(iii) there shall have occurred and be continuing an
Event of Default or an event which, with the giving of notice or
lapse of time, would constitute an Event of Default with respect
to the Securities of such series.
Upon the occurrence in respect of any Global Security of any series of
any one or more of the conditions specified in clauses (i), (ii) or
(iii) of the preceding sentence or such other conditions as may be
specified as contemplated by Section 301 for such series, then without
unnecessary delay, but in any event not later than the earliest date
on which such interests may be so exchanged, the Company shall deliver
to the Trustee definitive Securities of that series in aggregate
27
principal amount equal to the principal amount of such Global
Security, executed by the Company.
On or after the earliest date on which such interests may be
so exchanged, such Global Securities shall be surrendered from time to
time by the Depositary and in accordance with instructions given to
the Trustee and the Depositary (which instructions shall be in writing
but need not be contained in or accompanied by an Officers'
Certificate or be accompanied by an Opinion of Counsel), as shall be
specified in the Order of the Company with respect thereto to the
Trustee, as the Company's agent for such purpose, to be exchanged, in
whole or in part, for definitive Securities of the same series without
service charge. The Trustee shall authenticate and make available for
delivery, in exchange for each portion of such surrendered Global
Security, a like aggregate principal amount of definitive Securities
of the same series of authorized denominations and of like tenor as
the portion of such Global Security to be exchanged which (unless the
Securities of the series are not issuable both as Bearer Securities
and as Registered Securities, in which case the definitive Securities
exchanged for the Global Security shall be issuable only in the form
in which the Securities are issuable, as specified as contemplated by
Section 301) shall be in the form of Bearer Securities or Registered
Securities, or any combination thereof, as shall be specified by the
beneficial owner thereof; PROVIDED, that no such exchanges may occur
during a period beginning at the opening of business 15 Business Days
before any selection of Securities of that series to be redeemed and
ending on the relevant Redemption Date; and PROVIDED FURTHER, that
(unless otherwise specified as contemplated by Section 301) no Bearer
Security delivered in exchange for a portion of a Global Security
shall be mailed or otherwise delivered to any location in the United
States.
Promptly following any such exchange in part, such Global
Security shall be returned by the Trustee to the Depositary in
accordance with the instructions of the Company referred to above. If
a Registered Security is issued in exchange for any portion of a
Global Security after the close of business at the office or agency
where such exchange occurs on (i) any Regular Record Date for such
Security and before the opening of business at such office or agency
on the next Interest Payment Date, or (ii) any Special Record Date for
such Security and before the opening of business at such office or
agency on the related proposed date for payment of interest or
Defaulted Interest, as the case may be, interest shall not be payable
on such Interest Payment Date or proposed date for payment, as the
case may be, in respect of such Registered Security, but shall be
payable on such Interest Payment Date or proposed date for payment, as
the case may be, only to the Person to whom interest in respect of
such portion of such Global Security is payable in accordance with the
provisions of this Indenture.
28
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN
SECURITIES. If any mutilated Security or a Security with a mutilated
coupon appertaining to it is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series, Stated Maturity
and original issue date, and of like tenor and principal amount and
bearing a number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to the surrendered
Security.
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 or coupon 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 or coupon has been acquired by a bona fide
purchaser, the Company shall execute and upon its Request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security or in exchange for the Security to which a destroyed,
lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series, Stated
Maturity and original issue date, and of like tenor and principal
amount and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to such
destroyed, lost or stolen Security or to the Security to which such
destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen
Security or coupon 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 or coupon; PROVIDED, that payment of principal of
(and premium, if any) and any interest on Bearer Securities shall,
except as otherwise provided in Section 1002, be payable only at an
office or agency located outside the United States; and PROVIDED
FURTHER, that with respect to any such coupons, interest represented
thereby (but not any additional amounts payable as provided in Section
1004), shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
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 of any series, with its coupons, if any,
issued pursuant to this Section in lieu of any mutilated, destroyed,
lost or stolen Security, or in exchange for a Security to which a
destroyed, lost or stolen coupon appertains, shall constitute an
original additional contractual obligation of the Company, whether or
not the mutilated, destroyed, lost or stolen Security and its coupons,
if any, or the mutilated, destroyed, lost or stolen coupon shall be at
29
any time enforceable by anyone, and any such new Security and coupons,
if any, shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Securities of that
series and their coupons, if any, 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 or coupons.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS
PRESERVED. Unless otherwise provided as contemplated by Section 301
with respect to any series of Securities, interest on any Registered
Security which is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for
such interest. Interest, if any, is paid on Bearer Securities to
Holders of coupons. In case a Bearer Security of any series is
surrendered in exchange for a Registered Security of such series after
the close of business (at an office or agency in a Place of Payment
for such series) on any Regular Record Date and before the opening of
business (at such office or agency) on the next succeeding Interest
Payment Date, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest will not be
payable on such Interest Payment Date in respect of the Registered
Security issued in exchange for such Bearer Security, but will be
payable only to the Holder of such coupon when due in accordance with
the provisions of this Indenture.
Any interest on any Registered Security of any series which
is payable, but is not punctually paid or duly provided for, on any
Interest Payment Date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Holder on the 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 Registered Securities
of such series (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 Registered Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons
30
entitled to such Defaulted Interest as provided in this clause.
Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall 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 Registered Securities of such series
at the address of such Holder as it appears in the Security
Register, not less than 10 days prior to such Special Record
Date. The Trustee may, in its discretion, in the name and at the
expense of the Company, cause a similar notice to be published at
least once in an Authorized Newspaper in each Place of Payment,
but such publication shall not be a condition precedent to the
establishment of 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
Registered Securities of such series (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). In case a Bearer Security
of any series is surrendered at the office or agency in a Place
of Payment for such series in exchange for a Registered Security
of such series after the close of business at such office or
agency on any Special Record Date and before the opening of
business at such office or agency on the related proposed date
for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date of
payment and Defaulted Interest will not be payable on such
proposed date of payment in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable
only to the Holder of such coupon when due in accordance with the
provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest
on the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which such Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, 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.
31
SECTION 308. PERSONS DEEMED OWNERS. Prior to due
presentment of a Registered Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may
deem and treat the Person in whose name such Registered Security is
registered as the absolute owner of such Registered Security for the
purpose of receiving payment of principal of (and premium, if any) and
(subject to Section 307) interest 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 any notice to the contrary.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of
any coupon as the absolute owner of such Security or coupon for the
purpose of receiving payment thereof or on account thereof and for all
other purposes whatsoever, whether or not such Security or coupon 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.
No holder of any beneficial interest in any Global Security
held on its behalf by a Depositary (or its nominee) shall have any
rights under this Indenture with respect to such Global Security or
any Security represented thereby, and such Depositary may be treated
by the Company, the Trustee, and any agent of the Company or the
Trustee as the owner of such Global Security or any Security
represented thereby for all purposes whatsoever. None of the Company,
the Trustee, any Paying Agent or the Security Registrar will have any
responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests of a
Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 309. CANCELLATION. All Securities and coupons
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 canceled by the Trustee. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may
have acquired in any manner whatsoever, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities
shall be authenticated in lieu of or in exchange for any Securities
canceled as provided in this Section, except as expressly permitted by
this Indenture. All canceled Securities and coupons held by the
Trustee shall be destroyed and certification of their destruction
delivered to the Company, unless an Order of the Company shall direct
that canceled Securities be returned to the Company.
The repayment of any principal amount of Securities pursuant
to such option of the Holder to require repayment of Securities before
their Stated Maturity, for purposes of this Section 309, shall not
operate as a payment, redemption or satisfaction of the indebtedness
32
represented by such Securities unless and until the Company, at its
option, shall deliver or surrender the same to the Trustee with an
Order that such Securities be canceled.
SECTION 310. COMPUTATION OF INTEREST. Except as otherwise
specified as contemplated by Section 301(4) for Securities of any
series, interest on the Securities of each series shall be computed on
the basis of a 360-day year consisting of twelve 30-day months.
SECTION 311. FORM OF CERTIFICATION BY A PERSON ENTITLED TO
RECEIVE A BEARER SECURITY. Whenever any provision of this Indenture
or the form of Security contemplates that certification be given by a
Person entitled to receive a Bearer Security, such certification shall
be provided substantially in the form of the following certificate,
with only such changes as shall be approved by the Company and of
which the Company shall have given written notice to the Trustee:
[Form of Certificate to Be Given By
Person Entitled to Receive Bearer Security]
Certificate
[Name of Security]
This is to certify that the above-captioned Security is not
being acquired by or on behalf of a United States person, or for offer
to resell or for resale to a United States person, or, if a beneficial
interest in the Security is being acquired by a United States person,
that such person is a financial institution or is acquiring through a
financial institution and that the Security is held by a financial
institution that has agreed in writing to comply with the requirements
of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder and that such person
or financial institution is not purchasing for offer to resell or for
resale within the United States. If this certificate is being
provided by a clearing organization, it is based on statements
provided to it by its member organizations. As used herein, "United
States" means the United States of America (including the States and
the District of Columbia), its territories and possessions and other
areas subject to its jurisdiction, and "United States person" means
any citizen or resident of the United States, any corporation,
partnership or other entity created or organized in or under the laws
of the United States or any political subdivision thereof and any
estate or trust the income of which is subject to United States
Federal income taxation regardless of its source. If the undersigned
is a dealer, the undersigned agrees to obtain a similar certificate
from each person entitled to delivery of any of the above-captioned
Securities in bearer form purchased from it; PROVIDED, that if the
undersigned has actual knowledge that the information contained in
such a certificate is false, the undersigned will not deliver a
Security in temporary or definitive bearer form to the person who
33
signed such certificate notwithstanding the delivery of such
certificate to the undersigned.
We undertake to advise you by telecopy if the above
statement as to beneficial ownership is not correct on the date of
delivery of the above-captioned Securities in bearer form as to all of
such Securities.
We understand that this certificate is required in
connection with certain tax legislation in the United States. If
administrative or legal proceedings are commenced or threatened in
connection with which this certificate is or would be relevant, we
irrevocably authorize you to produce this certificate or a copy
thereof to any interested party in such proceedings.
Dated: __________, 20__ ______________________________
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon a Request of the Company cease to be of
further effect (except as to any surviving rights of registration of
transfer or exchange of Securities herein expressly provided for, and
any right to receive additional amounts, as provided in Section 1004),
and the Trustee, 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
and all coupons appertaining thereto (other than (i) coupons
appertaining to Bearer Securities surrendered for exchange for
Registered Securities and maturing after such exchange, whose
surrender is not required or has been waived as provided in
Section 305, (ii) Securities and coupons which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306, (iii) coupons appertaining to Securities
called for redemption and maturing after the relevant Redemption
Date, whose surrender has been waived as provided in Section
1106, and (iv) Securities and coupons for whose payment money 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 1003) have
been delivered to the Trustee for cancellation; or
34
(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 (B)(i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust dedicated solely for such purpose an amount
sufficient, without reinvestment, to pay and discharge the entire
indebtedness on such Securities and coupons not theretofore
delivered to the Trustee for cancellation, for principal (and
premium, if any) and interest to the date of such deposit (in the
case of Securities which have become due and payable) or to 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
(3) the Company has delivered to the Trustee an Officers'
Certificate of the Company and an Opinion of Counsel, each
stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture have
been complied with.
In the event there are Securities of two or more series
hereunder, the Trustee shall be required to execute an instrument
acknowledging satisfaction and discharge of this Indenture only if
requested to do so with respect to Securities of all series as to
which it is Trustee and if the other conditions thereto are met. In
the event there are two or more Trustees hereunder, then the
effectiveness of any such instrument shall be conditioned upon receipt
of such instruments from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section
607, the obligations of the Trustee to any Authenticating Agent under
Section 614 and, if money shall have been deposited with the Trustee
pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Sections 305, 306, 402, 1002 and 1003
shall survive.
SECTION 402. APPLICATION OF TRUST MONEY. Subject to the
provision of the last paragraph of Section 1003, all money deposited
with the Trustee pursuant to Section 401 shall be held in trust and
35
applied by it, in accordance with the provisions of the Securities,
the coupons 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 for whose
payment such money has been deposited with the Trustee, but such money
need not be segregated from other funds, except to the extent required
by law.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT. "Event of Default,"
wherever used herein with respect to Securities of any series, means
any one of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) the Company defaults in the payment of any interest
(including any additional amounts due under Section 1004 as
specified therein) upon any Security of that series when it
becomes due and payable and continuance of such default for a
period of 30 days; or
(2) the Company defaults in the payment of the principal
(including any additional amounts due under Section 1004 as
specified therein) of (or premium, if any, on) any Security of
that series at its Maturity and continuance of such default for a
period of three Business Days thereafter; or
(3) the Company defaults in the deposit of any sinking fund
payment when and as due by the terms of a Security of that series
and continuance of such default for a period of three Business
Days thereafter; or
(4) the Company defaults in the performance or breach of
any covenant or warranty of the Company in this Indenture (other
than a covenant 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 or pursuant to this
Indenture solely for the benefit of one or more series of
Securities other than that series), and continuance of such
default or breach for a period of 60 days after there has been
given, by registered or certified mail, to the Company by the
Trustee, or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Securities of
that series, a written notice specifying such default or breach
36
and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(5) a default under any bond, debenture, note or other
evidence of indebtedness for money borrowed by the Company
(including a default with respect to Securities of any series
other than that series) or under any mortgage, indenture or
instrument under which there may be issued or by which there may
be secured or evidenced any indebtedness for money borrowed by
the Company (including this Indenture), whether such indebtedness
now exists or shall hereafter be created, which default shall
constitute a failure to pay in excess of $5,000,000 of the
principal or interest of such indebtedness when due and payable
after the expiration of any applicable grace period with respect
thereto or shall have resulted in such indebtedness in an amount
in excess of $5,000,000 becoming or being declared due and
payable prior to the date on which it would otherwise have become
due and payable, without such indebtedness having been
discharged, or such acceleration having been rescinded or
annulled within a period of 60 days after there shall have been
given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Securities of
that series a written notice specifying such default and
requiring the Company to cause such indebtedness to be discharged
or cause such acceleration to be rescinded or annulled and
stating that such notice is a "Notice of Default" hereunder;
PROVIDED, that subject to the provisions of Sections 601 and 602,
the Trustee shall not be deemed to have knowledge of such default
unless either (A) a Responsible Officer of the Trustee assigned
to Capital Markets Fiduciary Services (or any successor division
or department of the Trustee) shall have actual knowledge of such
default or (B) the Trustee shall have received written notice
thereof from the Company, from any Holder, from the holder of any
such indebtedness or from the trustee under any such mortgage,
Indenture or other instrument; or
(6) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or (B) a decree or order adjudging the Company a
bankrupt or insolvent, or approving as properly filed a petition
by one or more Persons other than the Company or any of its
Affiliates seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any applicable
Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar
official for the Company or for any substantial part of the
property of the Company, or ordering the liquidation or winding
up of the affairs of the Company, and the continuance of any such
37
decree or order for relief or any such other decree or order
unstayed and in effect for a period of 90 consecutive days; or
(7) the commencement by the Company of a case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in
respect of it in a case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by it of
a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by it
to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official in respect of it or any
substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or its admission in
writing of its inability to pay its debts generally as they
become due, or its taking of corporate action in furtherance of
any such action; or
(8) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT. If an Event of Default with respect to Securities of any
series at the time Outstanding occurs and is continuing, then in every
such case the Trustee or the Holders of not less than 33% in principal
amount of the Outstanding Securities of that series may declare the
principal amount (or, if the Securities of that series are Original
Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of that series) of all of the Securities of
that series to be due and payable immediately, by a notice in writing
to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall
become immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a
judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a
majority in principal amount of the Outstanding Securities of that
series, by written notice to the Company and the Trustee, may rescind
and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay:
(A) all overdue interest on all Securities of that
series;
38
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise
than by such declaration of acceleration and interest
thereon at the rate or rates prescribed therefor in such
Securities;
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities; and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any
other amounts due to the Trustee under Section 607;
and
(2) all Events of Default with respect to Securities of
that series, other than the non-payment of the principal of
Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as
provided in Section 513.
No such rescission and annulment shall affect any subsequent
default or impair any right consequent thereon.
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 and
such default continues for a period of three Business Days,
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities and coupons, the whole
amount then due and payable on such Securities and coupons for
principal (and premium, if any) and interest, with interest on any
overdue principal (and premium, if any) and on any overdue interest,
to the extent that payment of such interest shall be legally
enforceable, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due to the
Trustee under Section 607.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express
39
trust, may institute a judicial proceeding for the collection of the
sums so due and unpaid, may prosecute such proceeding to judgment or
final decree, and may enforce the same against the Company or any
other obligor upon such Securities and collect the moneys adjudged or
decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon such Securities,
wherever situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion
proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series and any related coupons by such
appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture,
or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 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 or any other obligor 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 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 agents and counsel, and any other amounts due to the
Trustee under Section 607) and of the Holders of Securities and
coupons allowed in such judicial proceeding; 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 of Securities and coupons 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 of
Securities and coupons, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of
40
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 of a Security or coupon any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or
coupons or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder of a Security or
coupon in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION
OF SECURITIES OR COUPONS. All rights of action and claims under this
Indenture or the Securities or coupons may be prosecuted and enforced
by the Trustee without the possession of any of the Securities or
coupons or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, be for the ratable benefit of the Holders of the
Securities and coupons 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 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, upon presentation of the Securities or
coupons, or both, as the case may be, 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; and
SECOND: To the payment of the amounts then due and unpaid
for principal of (and premium, if any) and interest on the
Securities and coupons 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 and coupons for principal (and premium, if
any) and interest, respectively; and
THIRD: To the Company.
SECTION 507. LIMITATION ON SUITS. No Holder of any
Security of any series or any related coupons 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:
41
(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 that 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 that
series;
it being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other of such Holders or to obtain or to
seek to obtain priority or preference over any other of such Holders
or to enforce any right under this Indenture except in the manner
herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST. Notwithstanding any other provision
in this Indenture, the Holder of any Security or coupon 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 on such Security or payment of such coupon on the Stated
Maturity or Maturities expressed in such Security or coupon (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 of a Security or coupon 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 of Securities and
coupons shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the
42
Trustee and the Holders shall continue as though no such proceeding
had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE. Except as
otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities or coupons in the last
paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Securities or coupons 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 of any Security or coupon 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 of
Securities or coupons may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders of
Securities or coupons, as the case may be.
SECTION 512. CONTROL BY HOLDERS OF SECURITIES. The
Holders of a majority in principal amount of the Outstanding
Securities of any 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, expose the Trustee to personal
liability or be unduly prejudicial to Holders not joined therein;
and
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS. The Holders of not
less than a majority in principal amount of the Outstanding Securities
of any series may on behalf of the Holders of all the Securities of
such series and any related coupons waive any past default hereunder
with respect to such series and its consequences, except a default:
(1) in the payment of the principal of (or premium, if any)
or interest on any Security of such series; or
43
(2) in respect of a covenant or 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 shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other default or impair any right
consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS. All parties to this
Indenture agree, and each Holder of any Security or coupon 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 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 of any series, or to any suit instituted by
any Holder of any Security or coupon for the enforcement of the
payment of the principal of (or premium, if any) or interest on any
Security or the payment of any coupon on or after the Stated Maturity
or Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS. The
Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force
which may affect the covenants or the performance of this Indenture;
and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been
enacted.
44
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default
with respect to Securities of any series:
(1) the Trustee undertakes to perform, with respect to
Securities of such series, such duties and only such duties
as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may, with respect to Securities of such series,
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the
case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default with respect to Securities
of any series has occurred and is continuing, the Trustee shall
exercise, with respect to Securities of such series, such of the
rights and powers vested in it by this Indenture, and use the
same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of
his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own wilful misconduct,
except that:
(1) this subsection shall not be construed to limit
the effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders of a
majority in principal amount of the Outstanding Securities
45
of any series relating to the time, method and place of
conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture with respect to the Securities
of such series; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 602. NOTICE OF DEFAULTS. Within 90 days after the
occurrence of any default hereunder with respect to the Securities of
any series, the Trustee shall transmit, in the manner and to the
extent provided in Section 313(c) of the Trust Indenture Act, notice
of all such defaults hereunder known to the Trustee, unless such
default shall have been cured or waived; PROVIDED, that except in the
case of a default in the payment of the principal of (or premium, if
any) or interest on any Security of such series or in the payment of
any sinking fund installment with respect to Securities of such
series, the Trustee shall be protected in withholding such notice if
and so long as the board of directors, the executive committee or a
committee of 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 Securities of such series; and PROVIDED FURTHER,
that in the case of any default of the character specified in Section
501(4) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to Securities of such series.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE. Subject to
Sections 315(a) through 315(d) of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, coupon, 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 Request or Order and any
46
resolution of the Board of Directors of the Company shall 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 Officers'
Certificate;
(d) the Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, 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 of Securities of any series
pursuant to this Indenture, unless such Holders shall have offered to
the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investi-
gation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon, other
evidence of indebtedness or other paper or document, but the Trustee,
in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company
personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(h) except as otherwise provided in Section 501(5), the
Trustee shall not be charged with knowledge of any Event of Default
with respect to the Securities of any series for which it is acting as
Trustee unless either (1) a Responsible Officer of the Trustee
assigned to Capital Markets Fiduciary Services (or any successor
division or department of the Trustee) shall have actual knowledge of
the Event of Default or (2) written notice of such Event of Default
shall have been given to the Trustee by the Company, any other obligor
on such Securities or by any Holder of such Securities.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES. The recitals contained herein and in the Securities
47
(except the Trustee's certificates of authentication) and in any
coupons 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 or
coupons, except that the Trustee represents that it is duly authorized
to execute and deliver this Indenture, authenticate the Securities and
perform its obligations hereunder and that the statements made by it
in a Statement of Eligibility and Qualification on Form T-1 supplied
to the Company are true and accurate, subject to the qualifications
set forth therein. The Trustee or any Authenticating Agent shall not
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 coupons and, subject
to Sections 310(b) and 311 of the Trust Indenture Act, may otherwise
deal with the Company and its Affiliates 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 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 with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT. The Company
agrees:
(1) to pay to the Trustee and each Authenticating Agent
from time to time reasonable compensation for all services rendered by
it hereunder (which compensation shall not be limited by any provision
of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to reim-
burse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reason-
able compensation and the expenses and disbursements of its agents and
counsel and any Authenticating Agent), except any such expense,
disbursement or advance as may be attributable to its negligence,
willful misconduct or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence,
willful misconduct 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
48
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the payment of
principal of, premium, if any, or interest, if any, on particular
Securities.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS. If
at any time the Trustee shall fail to comply with the obligations
imposed upon it by the provisions of Section 310(b) of the Trust
Indenture Act with respect to Securities of any series after written
request therefor by the Company or by any Holder of a Security of such
series who has been a bona fide Holder of a Security of such series
for at least six months then, (i) the Company, by or pursuant to a
Board Resolution, may remove the Trustee with respect to all
Securities or the Securities of such series, or (ii) subject to
Section 315(e) of the Trust Indenture Act, 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 removal of the Trustee
with respect to all Securities of such series and the appointment of a
successor Trustee or Trustees. The Trustee shall comply with the
terms of Section 310(b) of the Trust Indenture Act.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder that is a Person
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 exercise corporate trust powers, or any other
Person permitted by the Trust Indenture Act to act as trustee under an
indenture qualified under the Trust Indenture Act and that has a
combined capital and surplus (computed in accordance with
Section 310(a)(2) of the Trust Indenture Act) of at least $50,000,000,
is subject to supervision or examination by Federal, State or District
of Columbia authority and is not otherwise ineligible under Section
310(a)(5) of the Trust Indenture Act. If such Person 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
Person shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any
time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
49
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 the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608
after written request therefor by the Company or by any
Holder of a Security 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; 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 Holder of a Security
who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all other similarly situated Holders,
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
50
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. If no successor Trustee with
respect to the Securities of any series shall have been so appointed
by the Company or the Holders of Securities and accepted appointment
in the manner required by Section 611, any Holder of a Security 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 Registered
Securities, if any, of such series as their names and addresses appear
in the Security Register and, if Securities of such series are
issuable as Bearer Securities, by publishing notice of such event once
in an Authorized Newspaper in each Place of Payment located outside
the United States. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and
the address of its Corporate Trust Office.
SECTION 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.
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 on the request of 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,
51
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; PROVIDED, that such property
and money shall continue to be subject to any lien in favor of the
retiring Trustee provided for in Section 607.
(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 on the request of 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, subject nevertheless to its lien provided for in
Section 607, 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 this Article.
52
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR
SUCCESSION TO BUSINESS. Any Person into which the Trustee may be
merged or converted or with which it may be consolidated, or any
Person resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any Person succeeding to all or
substantially all the corporate trust business of the Trustee, shall
be the successor of the Trustee hereunder, if such Person shall be
otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any
of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY. If and when the Trustee shall be or become a creditor of
the Company (or any other obligor upon the Securities), the Trustee
shall be subject to the provisions of Section 311 and any other
provision of the Trust Indenture Act regarding the collection of
claims against the Company (or any such other obligor).
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 which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series 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 (computed in accordance with
Section 310(a)(2) of the Trust Indenture Act) of not less than
$50,000,000 and subject to supervision or examination by Federal,
State or District of Columbia 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. If at any time an Authenticating Agent shall cease to be
53
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, if
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
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 (i) mail written
notice of such appointment by first-class mail, postage prepaid, to
all Holders of Registered Securities, if any, of the series with
respect to which such Authenticating Agent will serve, as their names
and addresses appear in the Security Register, and (ii) if Securities
of the series are issuable as Bearer Securities, publish notice of
such appointment at least once in an Authorized Newspaper in the place
where such successor Authenticating Agent has its principal office if
such office is located outside the United States. 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 provisions of Sections 308, 604 and 605 shall be
applicable to each Authenticating Agent.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the
following form:
54
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
The Chase Manhattan Bank,
as Trustee
By_______________________________
As Authenticating Agent
By_______________________________
Authorized Signatory
55
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES
OF HOLDERS. In accordance with Section 312(a) of the Trust Indenture
Act, the Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than June 1 and December 1, in
each year, a list, in such form as the Trustee may reasonably
require, containing all the information in the possession or
control of the Company, or any of its Paying Agents other than
the Trustee, as to the names and addresses of the Holders of
Securities as of the preceding May 15 or November 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, that no such list need be furnished if the Trustee shall be
the Security Registrar.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO
HOLDERS.
(a) The Trustee shall comply with the obligations imposed
upon it pursuant to Section 312 of the Trust Indenture Act.
(b) Every Holder of Securities or coupons, 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 of Securities in
accordance with Section 312 of the Trust Indenture Act, 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 312 of the Trust
Indenture Act.
SECTION 703. REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year commencing
with the first May 15 following the first issuance of Securities
pursuant to Section 301, if required by Section 313(a) of the Trust
Indenture Act, the Trustee shall transmit, pursuant to Section 313(c)
of the Trust Indenture Act, a brief report dated as of such May 15
with respect to any of the events specified in said Section 313(a)
which may have occurred since the later of the immediately preceding
May 15 and the date of this Indenture.
56
(b) The Trustee shall transmit the reports required by
Section 313(b) of the Trust Indenture Act at the times specified
therein.
(c) Reports pursuant to this Section shall be transmitted
in the manner and to the Persons required by Sections 313(c) and
313(d) of the Trust Indenture Act.
SECTION 704. REPORTS BY COMPANY. The Company, pursuant to
Section 314(a) of the Trust Indenture Act, shall:
(1) file with the Trustee, within 15 days after the Company
is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended; 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
Securities Exchange Act of 1934, as amended, 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; and
(3) transmit, within 30 days after the filing thereof with
the Trustee, to the Holders of Securities, in the manner and to
the extent provided in Section 313(c) of the Trust Indenture Act,
such summaries of any 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.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS. The Company shall not consolidate with or merge into any
57
other Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, unless:
(1) the Person formed by any such consolidation or into
which it is merged or the Person which acquires by conveyance or
transfer, or which leases, its properties and assets
substantially as an entirety shall be organized and existing
under the laws of the United States of America, any State thereof
or the District of Columbia and shall expressly assume the due
and punctual payment of the principal of (and premium, if any)
and interest on all the Securities and the performance of every
covenant of this Indenture to be performed or observed on the
part of the Company;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of
time or both, would become an Event of Default, shall have
happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease complies
with this Section 801 and that all conditions precedent herein
provided for relating to such transaction have been complied
with.
The Company covenants and agrees that if, upon any
consolidation or merger of the Company with or into any other Person,
or upon any consolidation or merger of any other Person with or into
the Company, or upon any sale or conveyance of all or substantially
all of the property and assets of the Company to any other Person, any
property of the Company or any Subsidiary or any indebtedness issued
by any Subsidiary owned by the Company or by any Subsidiary
immediately prior thereto would thereupon become subject to any
mortgage, security interest, pledge, lien or other encumbrance not
permitted by Section 1008 hereof, the Company, prior to or
concurrently with such consolidation, merger, sale or conveyance, will
by indenture supplemental hereto, executed and delivered to the
Trustee, effectively secure the Securities then Outstanding (equally
and ratably with (or prior to) any other indebtedness of or guaranteed
by the Company or such Subsidiary then entitled thereto) by a direct
lien on such property of the Company or any Subsidiary or such
indebtedness issued by a Subsidiary, prior to all liens other than any
theretofore existing thereon.
SECTION 802. SUCCESSOR CORPORATION SUBSTITUTED. Upon any
consolidation by the Company with or merger by the Company into any
other Person or any conveyance, transfer or lease of the Company's
properties and assets substantially as an entirety in accordance with
Section 801, the successor formed by such consolidation or into which
it is merged or to which such conveyance, transfer or lease is made
shall succeed to, and be substituted for, and may exercise every right
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and power of, the Company under this Indenture with the same effect as
if such successor had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor shall be
relieved of all obligations and covenants under this Indenture and the
Securities.
SECTION 803. ASSUMPTION BY SUBSIDIARY. A Subsidiary may
directly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of (premium, if any) and
interest on all the Securities and any coupons appertaining thereto
and the performance of every covenant of this Indenture on the part of
the Company to be performed or observed. Upon any such assumption,
such Subsidiary 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 Subsidiary had been named as the
Company herein and the Company shall be released from its liability as
obligor on the Securities. No such assumption shall be permitted
unless such Subsidiary has delivered to the Trustee an Officers'
Certificate of such Subsidiary and an Opinion of Counsel for such
Subsidiary, each stating that such assumption and supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied
with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
HOLDERS. Without the consent of any Holders of Securities or
coupons, 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 one or more of the following purposes only:
(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 and
coupons; or
(2) to add to the covenants of the Company for the benefit
of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being
included solely for the benefit of such series) or to surrender
any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default; or
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(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as
to principal, to change or eliminate any restrictions on the
payment of principal (or premium, if any) on Registered
Securities or of principal (or premium, if any) or any interest
on Bearer Securities, to permit Registered Securities to be
exchanged for Bearer Securities or to permit the issuance of
Securities in uncertificated form; PROVIDED, that any such action
shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material
respect; 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 and any related coupons 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, to contain such provisions as
shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with
respect to the Securities of any series as to which the
predecessor Trustee is not retiring shall continue to be vested
in the predecessor Trustee, 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, to correct or supplement any
provision herein which may be defective or inconsistent with any
other provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture;
PROVIDED, that such change shall not be inconsistent with the
provisions of this Indenture and shall not adversely affect the
interests of the Holders of Securities of any series or any
related coupons in any material respect; or
(10) to effect assumption by a Subsidiary pursuant to
Section 803; or
(11) to conform this Indenture to any amendments to the
Trust Indenture Act.
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SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF
HOLDERS. With the consent of the Holders of not less than a majority
in principal amount of the Outstanding Securities of each series
affected by such supplemental indenture, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized
by Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or modifying in any manner the rights of
the Holders of Securities of such series and any related coupons under
this Indenture; PROVIDED, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security or
coupon affected thereby:
(1) change the Stated Maturity of the principal of, or of
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
change the method of calculating the rate of interest thereon, or
change any obligation of the Company to pay additional amounts
pursuant to Section 1004 (except as contemplated by Section
801(1) and permitted by Section 901(1)), 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 in the United States where, or the coin or currency in
which, any Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the
Redemption Date); or
(2) reduce the percentage in principal amount of the Out-
standing 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 certain defaults
hereunder and their consequences) provided for in this Indenture,
or reduce the requirements of Section 1304 for quorum or voting;
or
(3) change any obligation of the Company to maintain an
office or agency in each Place of Payment, or any obligation of
the Company to maintain an office or agency outside the United
States pursuant to Section 1002; or
(4) modify any of the provisions of this Section, Section
513 or Section 1010, 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, that this clause
shall not be deemed to require the consent of any Holder of a
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Security or coupon with respect to changes in the references to
"the Trustee" and concomitant changes in this Section and Section
1009, 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 provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities,
or which modifies the rights of the Holders of Securities of such
series with respect to such covenant or other provision, shall be
deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series.
It shall not be necessary for any Act of Holders of
Securities 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.
The Company shall have the right to set a record date for
the solicitation of any consents under this Article Nine, which record
date shall be set in accordance with Section 104.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES. In
executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 315 of the Trust
Indenture Act) shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall
not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties, immunities or liabilities
under this Indenture or otherwise.
SECTION 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 and of any coupons appertaining
thereto 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.
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
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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. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and
premium, if any) and interest on the Securities of that series in
accordance with the terms of the Securities, any coupons appertaining
thereto and this Indenture. Any interest due on Bearer Securities on
or before Maturity, other than additional amounts, if any, payable as
provided in Section 1004 in respect of principal of (or premium, if
any, on) such a Security, shall be payable only upon presentation and
surrender of the several coupons for such interest installments as are
evidenced thereby as they severally mature.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY. The
Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series (but,
except as otherwise provided below, unless such Place of Payment is
located outside the United States, not Bearer Securities) may be
presented or surrendered for payment, where Securities of that series
may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The
Company initially hereby appoints the Trustee, its office or agency
for each of said purposes. If Securities of a series are issuable as
Bearer Securities, the Company will maintain, subject to any laws or
regulations applicable thereto, an office or agency in a Place of
Payment for such series which is located outside the United States
where Securities of such series and the related coupons may be
presented and surrendered for payment (including payment of any
additional amounts payable on Securities of such series pursuant to
Section 1004); PROVIDED,, that if the Securities of such series are
listed on The Stock Exchange of the United Kingdom and the Republic of
Ireland or the Luxembourg Stock Exchange or any other stock exchange
located outside the United States and such stock exchange shall so
require, the Company will maintain a Paying Agent in London or
Luxembourg or any other required city located outside the United
States, as the case may be, so long as the Securities of such series
are listed on such exchange. The Company will give prompt written
notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency in respect of any series
of Securities or shall fail to furnish the Trustee with the address
thereof, such presentations and surrenders of Securities of that
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series may be made and notices and demands may be made or served at
the Corporate Trust Office of the Trustee, except that Bearer
Securities of that series and the related coupons may be presented and
surrendered for payment (including payment of any additional amounts
payable on Bearer Securities of that series pursuant to Section 1004)
at the place specified for the purpose pursuant to Section 301 or, if
no such place is specified, at the main office of the Trustee in
London, and the Company hereby appoints the Trustee as its agent to
receive such respective presentations, surrenders, notices and
demands.
No payment of principal, premium or interest on Bearer
Securities shall be made at any office or agency of the Company in the
United States or by check mailed to any address in the United States
or by transfer to an account maintained with a bank located in the
United States; PROVIDED, that payment of principal of and any premium
and interest in U.S. dollars (including additional amounts payable in
respect thereof) on any Bearer Security may be made at the Corporate
Trust Office of the Trustee in the Borough of Manhattan, The City of
New York if (but only if) payment of the full amount of such
principal, premium, interest or additional amounts at all offices
outside the United States maintained for the purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by
exchange controls or other similar restrictions.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series
may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; PROVIDED, that no such
designation or rescission shall in any manner relieve the Company of
its obligation to maintain an office or agency in each Place of
Payment in accordance with the requirements set forth above for
Securities of any series for such purposes. 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.
SECTION 1003. 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, it will, on or before each
due date of the principal of (and premium, if any) or interest on any
of the Securities of that series, 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 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.
Whenever the Company shall have one or more Paying Agents
for any series of Securities, it will, on or prior to each due date of
the principal of (and premium, if any) or interest on any Securities
of that series, deposit with a Paying Agent a sum sufficient to pay
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the principal (and premium, if any) or interest so becoming due, such
sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities 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 on Securities of
that series 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) in the
making of any payment of principal of (and premium, if any) or
interest on the Securities of that series; 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 Order of the Company direct any Paying Agent to
pay, to the Trustee all sums held in trust by the Company or such
Paying Agent, such sums to be held by the Trustee upon the same terms
as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect
to such sums.
Any sums 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 on any Security of any series and
remaining unclaimed for two years after such principal (and premium,
if any) or interest has become due and payable shall be paid to the
Company on Request of the Company, or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security
or any coupon appertaining thereto 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, that the Trustee or such Paying
Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once in an Authorized
Newspaper in each Place of Payment or mailed to each such Holder, or
65
both, 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 or mailing, any unclaimed balance of such money
then remaining will be repaid to the Company.
SECTION 1004. ADDITIONAL AMOUNTS. If the Securities of a
series provide for the payment of additional amounts, the Company will
pay to the Holder of any Security of any series or any coupon
appertaining thereto additional amounts as provided therein. Whenever
in this Indenture there is mentioned, in any context, the payment of
principal of (or premium, if any) or interest on, or in respect of,
any Security of any series or any related coupon or the net proceeds
received on the sale or exchange of any Security of any series, such
mention shall be deemed to include mention of the payment of
additional amounts provided for in this Section to the extent that, in
such context, additional amounts are, were or would be payable in
respect thereof pursuant to the provisions of this Section and express
mention of the payment of additional amounts (if applicable) in any
provisions hereof shall not be construed as excluding additional
amounts in those provisions hereof where such express mention is not
made.
If the Securities of a series provide for the payment of
additional amounts, at least 10 days prior to the first Interest
Payment Date with respect to that series of Securities (or if the
Securities of that series will not bear interest prior to Maturity,
the first day on which a payment of principal (and premium, if any) is
made), and at least 10 days prior to each date of payment of principal
(and premium, if any) or interest if there has been any change with
respect to the matters set forth in the below-mentioned Officers'
Certificate, the Company will furnish the Trustee and the Company's
principal Paying Agent or Paying Agents, if other than the Trustee,
with an Officers' Certificate instructing the Trustee and such Paying
Agent or Paying Agents whether such payment of principal of (and
premium, if any) or interest on the Securities of that series shall be
made to Holders of Securities of that series or the related coupons
who are United States Aliens without withholding for or on account of
any tax, assessment or other governmental charge described in the
Securities of that series. If any such withholding shall be required,
then such Officers' Certificate shall specify by country the amount,
if any, required to be withheld on such payments to such Holders of
Securities or coupons and the Company will pay to the Trustee or such
Paying Agent the additional amounts required by this Section. The
Company covenants to indemnify the Trustee and any Paying Agent for,
and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any
of them in reliance on any Officers' Certificate furnished pursuant to
this Section.
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SECTION 1005. CORPORATE EXISTENCE. Subject to Article
Eight, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and
its rights (charter and statutory) and franchises.
SECTION 1006. MAINTENANCE OF PROPERTIES. The Company will
cause all properties used or useful in the conduct of its business, or
used or useful in the business of the Subsidiaries, to be maintained
and kept in good condition, repair and working order and supplied with
all necessary equipment and will cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof,
all as may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times;
PROVIDED, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties
or disposing of them if such discontinuance or disposal is, in the
judgment of the Company, desirable in the conduct of its business or
the business of the Subsidiaries and not disadvantageous in any
material respect to the Holders of Securities.
SECTION 1007. PAYMENT OF TAXES AND OTHER CLAIMS. The
Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments
and governmental charges levied or imposed upon it or any of the
Subsidiaries, or upon the income, profits or property of the Company
or any of the Subsidiaries, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien
upon the property of the Company or any of the Subsidiaries; PROVIDED,
that none of the Company or any of the Subsidiaries shall be required
to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings.
SECTION 1008. RESTRICTIONS ON LIENS.
(a) So long as any Securities remain outstanding, the
Company will not, nor will the Company permit any Subsidiary other
than a Utility to, issue, assume or guarantee any debt for money
borrowed (hereinafter in this Section 1008 referred to as "Debt"),
secured by any mortgage, security interest, pledge, lien or other
encumbrance (hereinafter in this Section 1008 called "mortgage" or
"mortgages") upon any property of the Company or any such Subsidiary
(other than a Utility), except indebtedness issued by any such
Subsidiary and owned by the Company or any other such Subsidiary
(whether such property or indebtedness is now owned or hereafter
acquired), without in any such case effectively securing, prior to or
concurrently with the issuance, assumption or guarantee of any such
Debt, the Securities (together with, if the Company shall so
determine, any other indebtedness of or guaranteed by the Company or
such Subsidiary ranking equally with the Securities and then existing
or thereafter created) equally and ratably with (or prior to) such
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Debt; PROVIDED, that the foregoing restrictions shall not apply to nor
prevent the creation or existence of:
(i) mortgages on any property, acquired, constructed or
improved by the Company or any of the Subsidiaries other than the
Utilities after the date of this Indenture, and any improvements
thereon, accessions thereto or other property acquired or
constructed for use in connection therewith or related thereto,
which are created or assumed prior to or contemporaneously with,
or within 180 days after, such acquisition or completion of such
construction or improvement, or within one year thereafter
pursuant to a firm commitment for financing arranged with a
lender or investor within such 180-day period, to secure or
provide for the payment of all or any part of the purchase price
of such property or the cost of such construction or improvement
incurred after the date of this Indenture, or, in addition to
mortgages contemplated by clauses (ii) and (iii) below, mortgages
on any property existing at the time of acquisition thereof;
PROVIDED, that the mortgages shall not apply to any property
theretofore owned by the Company or any such Subsidiary other
than, in the case of any such construction or improvement, (1)
unimproved real property on which the property so constructed or
the improvement is located, (2) other property (or improvements
thereon) which is an improvement to or is acquired or constructed
for use in connection therewith or related thereto, (3) any right
and interest under any agreement or other documents relating to
the property being so constructed or improved or such other
property and (4) the stock of any Subsidiary created or
maintained for the primary purpose of owning the property so
constructed or improved;
(ii) existing mortgages on any property or indebtedness of
a Person which is merged with or into or consolidated with the
Company or a Subsidiary;
(iii) mortgages on property or indebtedness of a Person
existing at the time such Person becomes a Subsidiary;
(iv) mortgages to secure Debt of a Subsidiary to the
Company or to another Subsidiary other than a Utility;
(v) mortgages in favor of the United States of America, any
State, any foreign country or any department, agency or
instrumentality or political subdivision of any such
jurisdiction, to secure partial, progress, advance or other
payments pursuant to any contract or statute or to secure any
indebtedness incurred for the purpose of financing all or any
part of the purchase price of the cost of constructing or
improving the property subject to such mortgages, including,
without limitation, mortgages to secure Debt of the pollution
control or industrial revenue bond type;
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(vi) mortgages to secure Debt of the Company or any
Subsidiary maturing within 12 months from the creation thereof
and incurred in the ordinary course of business;
(vii) mortgages on any property (including any natural gas,
oil or other mineral property) to secure all or part of the cost
of exploration, drilling or development thereof or to secure Debt
incurred to provide funds for any such purpose;
(viii) mortgages existing on the date of this Indenture;
and
(ix) mortgages for the purposes of extending, renewing or
replacing in whole or in part Debt secured by any mortgage
referred to in the foregoing clauses (i) to (viii), inclusive, or
this clause (ix); PROVIDED, that the principal amount of Debt
secured thereby shall not exceed the principal amount of Debt so
secured at the time of such extension, renewal or replacement,
and that such extension, renewal or replacement shall be limited
to all or a part of the property or indebtedness which secured
the mortgage so extended, renewed or replaced (plus improvements
on such property).
(b) The provisions of subsection (a) of this Section 1008
shall not apply to the issuance, assumption or guarantee by the
Company or any Subsidiary of Debt secured by a mortgage which would
otherwise be subject to the foregoing restrictions up to an aggregate
amount which, together with all other Debt of the Company and the
Subsidiaries other than the Utilities secured by mortgages (other than
mortgages permitted by subsection (a) of this Section 1008 which would
otherwise be subject to the foregoing restrictions), does not at the
time exceed 5% of Consolidated Net Tangible Assets.
(c) If at any time the Company or any Subsidiary other than
the Utilities shall issue, assume or guarantee any Debt secured by any
mortgage and if subsection (a) of this Section 1008 requires that the
Securities be secured equally and ratably with such Debt, the Company
will promptly deliver to the Trustee an Officers' Certificate stating
that, and Opinion of Counsel to the effect that, the covenant of the
Company contained in subsection (a) of this Section has been complied
with.
SECTION 1009. STATEMENT AS TO DEFAULT.
(a) The Company will deliver to the Trustee, within 120
days after the end of each fiscal year of the Company ending after the
date hereof, a certificate, signed by the principal executive officer,
principal financial officer or principal accounting officer of the
Company, stating whether or not to the best knowledge of the signer
thereof the Company is in default in the performance and observance of
any of the terms, provisions and conditions of this Indenture (without
regard to any period of grace or requirement of notice provided
69
hereunder) and, if the Company shall be in default, specifying all
such defaults and the nature and status thereof of which they may have
knowledge.
(b) The Company will deliver to the Trustee, within five
days after the occurrence thereof, written notice of any event which
after notice or lapse of time would become an Event of Default
pursuant to clause (4) of Section 501.
SECTION 1010. WAIVER OF CERTAIN COVENANTS. The Company
may omit in any particular instance to comply with any term, provision
or condition set forth in Sections 1006 and 1007 with respect to the
Securities of any series if before the time for such compliance the
Holders of at least a majority in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive
such compliance in such instance or generally waive compliance with
such term, provision or condition, but no such waiver shall extend to
or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of
any such term, provision or condition shall remain in full force and
effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE. Securities of any
series 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)
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 all of the Securities of any series, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee in writing of such Redemption Date. In case of any
redemption at the election of the Company of less than all the
Securities of any series, the Company shall, at least 60 days prior to
the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee in writing
of such Redemption Date and of the principal amount of Securities of
such series to be redeemed. In the case of any redemption of
Securities (i) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in
this Indenture, or (ii) pursuant to an election of the Company which
is subject to a condition specified in the terms of such Securities,
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the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction or condition.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE
REDEEMED. If less than all the Securities of any series are to be
redeemed, the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee from
the Outstanding Securities of such series (other than Securities of
such series held by the Company), not previously called for
redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities
of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the
minimum authorized denomination for Securities of that series. Unless
otherwise provided in the Securities of a series, partial redemptions
must be in an amount not less than $1,000,000 principal amount of
Securities.
The Trustee shall promptly notify the Company in writing of
the Securities selected for 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
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 in the manner provided in Section 106 to the Holders of
Securities to be redeemed not less than 30 nor more than 60 days prior
to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any
series 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
become due and payable upon each such Security to be redeemed
and, if applicable, that interest thereon will cease to accrue on
and after said date,
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(5) the place or places where such Securities, together in
the case of Bearer Securities with all coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price, which shall be
the office or agency maintained by the Company in each Place of
Payment pursuant to Section 1002, and
(6) that the redemption is for a sinking fund, if such is
the case.
A notice of redemption published as contemplated by Section 106 need
not identify particular Registered Securities to be redeemed.
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.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE. On or prior to
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 1003) 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
conditions, if any, set forth in such notice having been satisfied,
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 (unless the Company shall default in the payment
of the Redemption Price and accrued interest) such Securities shall
cease to bear interest and the coupons for such interest appertaining
to any Bearer Securities so to be redeemed, except to the extent
provided below, shall be void. Upon surrender of any such Security
for redemption in accordance with said notice, together with all
coupons, if any, appertaining thereto maturing after the Redemption
Date, such Security shall be paid by the Company at the Redemption
Price, together with accrued interest, if any, to the Redemption Date;
PROVIDED, that installments of interest on Bearer Securities whose
Stated Maturity is on or prior to the Redemption Date shall be payable
only upon presentation and surrender of coupons for such interest (at
an office or agency located outside the United States except as
otherwise provided in Section 1002); and PROVIDED FURTHER, that
installments of interest on Registered Securities 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 Record
Dates according to their terms and the provisions of Section 307.
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If any Bearer Security surrendered for redemption shall not
be accompanied by all appurtenant coupons maturing after the
Redemption Date, such Security may be paid after deducting from the
Redemption Price an amount equal to the face amount of all such
missing coupons, or the surrender of such missing coupon or coupons
may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent any such
missing coupon in respect of which a deduction shall have been made
from the Redemption Price, such Holder shall be entitled to receive
the amount so deducted; PROVIDED, that interest represented by coupons
shall be payable only upon presentation and surrender of those coupons
at an office or agency located outside of the United States except as
otherwise provided in Section 1002.
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 prescribed therefor in the Security.
SECTION 1107. SECURITIES REDEEMED IN PART. Any Security
which is to be redeemed only in part shall be surrendered at a Place
of Payment therefor (with, if the Company or the Trustee so requires
with respect to any Registered Security, 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,
Stated Maturity and 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.
Except as otherwise specified as contemplated by Section
301, if a Global Security is so surrendered, the Company shall
execute, and the Trustee shall authenticate and deliver to the
Depositary in global form, without service charge, a new Global
Security or Securities of the same series, Stated Maturity and of any
authorized denomination as requested by the Depositary, in an
aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Global 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
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retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for
by the terms of Securities of any series is herein referred to as a
"mandatory sinking fund payment," and any payment in excess of such
minimum amount provided for by the terms of Securities of any series
is herein referred to as an "optional sinking fund payment." If
provided for by the terms of Securities of any series, 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 as provided for by the terms of
Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES. The Company (1) may deliver Outstanding Securities of a
series (other than any previously called for redemption), together in
the case of any Bearer Securities of such series with all unmatured
coupons appertaining thereto, and (2) may apply as a credit Securities
of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to
the terms of such Securities, in each case in satisfaction of all or
any part of any sinking fund payment with respect to the Securities of
such series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series; PROVIDED, that
such Securities have not been previously so credited. Such Securities
shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing
sinking fund payment for that series pursuant to the terms of that
series, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and stating the basis for such credit and
that such Securities have not previously been so credited 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.
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ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
If Securities of a series are issuable as Bearer Securities, a meeting
of Holders of Securities of such series may be called at any time and
from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be made, given or taken by
Holders of Securities of such series.
SECTION 1302. CALL NOTICE AND PLACE OF MEETING.
(a) The Trustee may at any time call a meeting of Holders
of Securities of any series for any purpose specified in Section 1301,
to be held at such time and at such place in the Borough of Manhattan,
The City of New York, or in London as the Trustee shall determine.
Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given,
in the manner provided in Section 106, not less than 21 nor more than
180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee
to call a meeting of the Holders of Securities of such series for any
purpose specified in Section 1301, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have made the first publication of the notice of
such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series in the
amount above specified, as the case may be, may determine the time and
the place in the Borough of Manhattan, The City of New York, or in
London for such meeting and may call such meeting for such purposes by
giving notice thereof as provided in subsection (a) of this Section.
SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS. To be
entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding
Securities of such series, or (2) a Person appointed by an instrument
in writing as proxy for a Holder or Holders of one or more Outstanding
Securities of such series by such Holder or Holders. The only Persons
who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series shall be the Persons entitled to
vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its
counsel.
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SECTION 1304. QUORUM; ACTION. The Persons entitled to
vote a majority in principal amount of the Outstanding Securities of a
series shall constitute a quorum for a meeting of Holders of
Securities of such series. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of Securities of such series, be
dissolved. In any other case the meeting may be adjourned for a
period of not less than 10 days as determined by the chairman of the
meeting prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may be
further adjourned for a period of not less than 10 days as determined
by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Except as provided by Section 1305(d), notice of
the reconvening of any adjourned meeting shall be given as provided in
Section 1302(a), except that such notice need be given only once not
less than five days prior to the date on which the meeting is
scheduled to be reconvened. Notice of the reconvening of an adjourned
meeting shall state expressly the percentage, as provided above, of
the principal amount of the Outstanding Securities of such series
which shall constitute a quorum.
Except as limited by the proviso to Section 902, any
resolution presented to a meeting or adjourned meeting duly reconvened
at which a quorum is present as aforesaid may be adopted only by the
affirmative vote of the Holders of a majority in principal amount of
the Outstanding Securities of that series; PROVIDED, that, except as
limited by the proviso to Section 902, any resolution with respect to
any request, demand, authorization, direction, notice, consent, waiver
or other action which this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage, which is less
than a majority, in principal amount of the Outstanding Securities of
a series may be adopted at a meeting or an adjourned meeting duly
reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in
principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this
Section shall be binding on all the Holders of Securities of such
series and the related coupons, whether or not present or represented
at the meeting.
SECTION 1305. DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS.
(a) Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities of such series in
regard to proof of the holding of Securities of such series and of the
appointment of proxies and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other
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matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner
specified in Section 104 and the appointment of any proxy shall be
proved in the manner specified in Section 104. Such regulations may
provide that written instruments appointing proxies, regular on their
face, may be presumed valid and genuine without the proof specified in
Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint
a temporary chairman of the meeting, unless the meeting shall have
been called by the Company or by Holders of Securities as provided in
Section 1302(b), in which case the Company or the Holders of
Securities of the series calling the meeting, as the case may be,
shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series
or proxy shall be entitled to one vote for each $1,000 principal
amount of Securities of such series held or represented by him;
PROVIDED, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote, except as a Holder of a Security
of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1302 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series
represented at the meeting; and the meeting may be held as so
adjourned without further notice.
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF
MEETINGS. The vote upon any resolution submitted to any meeting of
Holders of Securities of any series shall be by written ballots on
which shall be subscribed the signatures of the Holders of Securities
of such series or of their representatives by proxy and the principal
amounts and serial numbers of the Outstanding Securities of such
series held or represented by them. The permanent chairman of the
meeting shall appoint two inspectors of votes who shall count all
votes cast at the meeting for or against any resolution and who shall
make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at
least in triplicate, of the proceedings of each meeting of Holders of
Securities of any series shall be prepared by the secretary of the
meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more persons having knowledge of the facts
setting forth a copy of the notice of the meeting and showing that
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said notice was given as provided in Section 1302 and, if applicable,
Section 1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and
one such copy shall be delivered to the Company, and another to the
Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and
verified shall be conclusive evidence of the matters therein stated.
SECTION 1307. ACTION WITHOUT MEETING. In lieu of a vote
of Holders at a meeting as hereinbefore contemplated in this Article,
any request, demand, authorization, direction, notice, consent, waiver
or other action may be made, given or taken by Holders by written
instruments as provided in Section 104.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS,
DIRECTORS AND EMPLOYEES
SECTION 1401. LIABILITY SOLELY CORPORATE. No recourse
shall be had for the payment of the principal of or premium, if any,
or interest, if any, on any Securities, or any part thereof, or for
any claim based thereon or otherwise in respect thereof, or of the
indebtedness represented thereby, or upon any obligation, covenant or
agreement under this Indenture, against any incorporator, stockholder,
officer, director or employee, as such, past, present or future of the
Company or of any predecessor or successor Corporation (either
directly or through the Company or a predecessor or successor
Corporation of the Company), whether by virtue of any constitutional
provision, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly agreed and
understood that this Indenture and all the Securities are solely
corporate obligations, and that no personal liability whatsoever shall
attach to, or be incurred by, any incorporator, stockholder, officer,
director or employee, past, present or future, of the Company or of
any predecessor or successor Corporation, either directly or
indirectly through the Company or any predecessor or successor
Corporation, because of the indebtedness hereby authorized or under or
by reason of any of the obligations, covenants or agreements contained
in this Indenture or in any of the Securities or to be implied
herefrom or therefrom, and that any such personal liability is hereby
expressly waived and released as a condition of, and as part of the
consideration for, the execution of this Indenture and the issuance of
the Securities.
____________________
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed and attested, all as of the day and year
first above written.
NEW NISOURCE INC.
By:_____________________________________
Name:
Title:
Attest:
___________________________
THE CHASE MANHATTAN BANK, AS TRUSTEE
By: ____________________________________
Name:
Title:
Attest:
By:________________________
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