<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 18, 1998
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
------------------------
CENTRAL POWER AND LIGHT COMPANY
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
TEXAS 74-0550600
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification
organization) No.)
</TABLE>
539 NORTH CARANCAHUA STREET
CORPUS CHRISTI, TEXAS 78401-2802
(512) 881-5300
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
------------------------------
WENDY G. HARGUS
TREASURER
CENTRAL AND SOUTH WEST CORPORATION
1616 WOODALL ROGERS FREEWAY
DALLAS, TEXAS 75202
(214) 777-1000
(Names, address, including zip codes, and telephone numbers, including area
codes, of agents for service)
------------------------------
COPIES TO:
ROBERT B. WILLIAMS, ESQ.
JORIS M. HOGAN, ESQ.
Milbank, Tweed, Hadley & McCloy
1 Chase Manhattan Plaza
New York, New York 10005
(212) 530-5000
------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
FROM TIME TO TIME AFTER THE REGISTRATION STATEMENT BECOMES EFFECTIVE.
------------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended, other than securities offered only in connection with dividend
or interest reinvestment plans, please check the following box. /X/
------------------------------
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED PER UNIT OFFERING PRICE* REGISTRATION FEE
<S> <C> <C> <C> <C>
Senior Notes......................... $350,000,000 100% $350,000,000 $97,300
</TABLE>
* Estimated solely for the purpose of calculating the registration fee.
------------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND WE ARE NOT SOLICITING OFFERS TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED NOVEMBER 18, 1998
PROSPECTUS
CENTRAL POWER AND LIGHT COMPANY
$350,000,000
SENIOR NOTES
----------------
Central Power and Light Company intends to offer from time to time in one or
more series up to $350,000,000 of debentures, notes or other types of senior
unsecured debt securities (the "Senior Notes").
When a particular series of Senior Notes is offered, we will prepare and
issue a supplement to this Prospectus setting forth the particular terms of the
offered Senior Notes (each such supplement, a "Prospectus Supplement"). You
should read this Prospectus and any Prospectus Supplement carefully before you
make any decision to invest in the Senior Notes.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS ANY OF THESE
ORGANIZATIONS DETERMINED THAT THIS PROSPECTUS IS ACCURATE OR COMPLETE. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
We may offer the Senior Notes directly or through underwriters, agents or
dealers. Each Prospectus Supplement will provide the terms of the plan of
distribution relating to the respective series of Senior Notes. "Plan of
Distribution" below also provides more information on this topic.
The date of this Prospectus is , 1998.
<PAGE>
------------------------
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the Securities and Exchange Commission (the "Commission")
in Washington, D.C., a Registration Statement on Form S-3 under the Securities
Act of 1933, as amended (the "Securities Act"), with respect to the securities
offered in this Prospectus. We have not included certain portions of the
Registration Statement in this Prospectus as permitted by the Commission's rules
and regulations. For further information, you should refer to the Registration
Statement and its exhibits.
We are subject to the informational requirements of the Securities Act of
l934, as amended (the "Exchange Act"), and therefore we file annual, quarterly
and current reports, proxy statements and other information with the Commission.
You may read and copy the Registration Statement (with exhibits), as well as the
reports and other information filed by the Company with the Commission, at the
Commission's public reference facilities at its principal offices at Judiciary
Plaza, 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549 and its
regional offices at Northwest Atrium Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511 and 7 World Trade Center, Suite 1300, New
York, New York 10048. You may obtain information on the operation of the
Commission's public reference facilities by calling 1-800-SEC-0330. Information
filed by us is also available at the Commission's Internet site at
HTTP://WWW.SEC.GOV. You can also obtain these materials at set rates from the
Public Reference Section of the Commission at its principal office at Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549.
------------------------
YOU SHOULD RELY ONLY ON THE INFORMATION INCORPORATED BY REFERENCE OR
PROVIDED IN THIS PROSPECTUS AND ITS SUPPLEMENT(S). WE HAVE NOT AUTHORIZED ANYONE
TO PROVIDE YOU WITH DIFFERENT INFORMATION. YOU SHOULD NOT ASSUME THAT THE
INFORMATION IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT IS ACCURATE AS OF
ANY DATE OTHER THAN THE DATE ON THE FRONT OF THOSE DOCUMENTS. THIS PROSPECTUS
DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY THE
SECURITIES IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH
OFFER OR SOLICITATION IN SUCH JURISDICTION.
------------------------
DOCUMENTS INCORPORATED BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file with
them, which means that we can disclose important information to you by referring
you to those documents. Information incorporated by reference is considered to
be part of this Prospectus. Later information that we file with the SEC will
automatically update and supersede this information. We incorporate by reference
the documents listed below and any future filings made with the SEC under
Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934 until
we sell all the Senior Notes.
- Annual Report on Form 10-K for the year ended December 31, 1997;
- Quarterly Reports on Form 10-Q for the quarters ended March 31, June 30
and September 30, 1998, and
- Current Report on Form 8-K dated April 30, 1998
2
<PAGE>
We will provide to each person, including any beneficial owner of Senior
Notes, to whom a copy of this Prospectus is delivered, a copy of any or all of
the information that has been incorporated by reference in this Prospectus but
not delivered with this Prospectus. We will deliver this information upon
written or oral request and provide this information at no cost to the
requester. You should direct your requests to:
Ellen Whalen,
Manager of Investment Services,
Central and South West Corporation,
1616 Woodall Rodgers Freeway,
Dallas, Texas 75202
(214) 777-1000
REPORTS TO HOLDERS OF SENIOR NOTES
We are not required to furnish annual and quarterly reports to holders of
Senior Notes. Our annual report on Form 10-K contains audited financial
statements which we will provide to holders of Senior Notes upon request.
FORWARD-LOOKING STATEMENTS
We make statements in this Prospectus and the documents we incorporate by
reference that are considered forward-looking statements within the meaning of
the Securities Act and the Exchange Act. Sometimes these statements will contain
words such as "believes," "expects," "intends," "plans" and other similar words.
These statements are not guarantees of our future performance and are subject to
risks, uncertainties and other important factors that could cause our actual
performance or achievements to be materially different from those we project.
These risks, uncertainties and factors include:
- general economic, business and regulatory conditions;
- the impact of Central and South West Corporation's proposed merger with
American Electric Power, including any regulatory conditions imposed on
the merger;
- energy supply and demand;
- competition;
- federal and state regulatory developments and changes in law;
- availability, terms and use of capital;
- nuclear and environmental issues;
- weather; and
- industry restructuring and cost recovery (including the potential effect
of stranded costs).
Given these uncertainties, you should not place undue reliance on these
forward-looking statements. Please see the documents we incorporate by reference
for more information on these factors. These forward-looking statements
represent our estimates and assumptions only as of the date of this Prospectus.
We undertake no obligation to publicly update or revise any forward-looking
statements, whether as a result of new information, future events or otherwise.
3
<PAGE>
PROSPECTUS SUMMARY
THIS SUMMARY DOES NOT CONTAIN ALL THE INFORMATION THAT MAY BE IMPORTANT TO
YOU. YOU SHOULD READ THE ENTIRE PROSPECTUS, THE PROSPECTUS SUPPLEMENT, AND THE
DOCUMENTS, FINANCIAL STATEMENTS AND OTHER INFORMATION INCORPORATED BY REFERENCE
IN THE PROSPECTUS CAREFULLY BEFORE MAKING AN INVESTMENT DECISION.
THE OFFERING
<TABLE>
<S> <C>
Issuer............................ Central Power and Light Company
Securities Offered................ Senior Notes
Aggregate Principal Amount........ Up to $350,000,000
Interest Payment Dates............ Semiannually on dates to be determined
Maturity Date..................... To be determined
Redemption........................ To be determined
Ranking........................... The Senior Notes are our senior unsecured notes ranking
equally with any of our other unsecured indebtedness
that is not specifically subordinated to the Senior
Notes. The Senior Notes are subordinate to
$1,026,700,000 of our outstanding First Mortgage Bonds,
which are secured by a mortgage on substantially all of
the Company's properties. The Senior Notes rank junior
to the First Mortgage Bonds with respect to rights in
and to such mortgaged property. We may in the future
issue additional series of First Mortgage Bonds.
Use of Proceeds................... We will use the net proceeds from the sale of the Senior
Notes to repay a portion of our long-term debt, all or a
portion of our short-term borrowings, and for other
general corporate purposes.
THE COMPANY
Business.......................... We are a public utility engaged in the production,
purchase, transmission, distribution and sale of
electricity
Service Area...................... Our service area is approximately 44,000 square miles in
south Texas
Population of Service Area
(December 31, 1997)............. Approximately 1,778,000
Customers (December 31, 1997)..... Approximately 627,900
</TABLE>
4
<PAGE>
SELECTED FINANCIAL INFORMATION
We have derived the summary selected financial data set forth below for the
years ended December 31, 1995, 1996 and 1997 and the nine months ended September
30, 1998 from our financial statements. Arthur Andersen LLP, independent public
accountants, have audited the financial statements for the three-year period
ended December 31, 1997 and the reports of Arthur Andersen LLP thereon are
incorporated by reference in this Prospectus. We have derived the summary
selected financial data as of and for the nine-month period ended September 30,
1998 from our unaudited interim financials for the period.
You should read the information presented below in conjunction with the
historical financial statements and notes thereto contained in our 1997 Annual
Report on Form 10-K and our Quarterly Report on Form 10-Q for the period ended
September 30, 1998, which are incorporated by reference in this Prospectus.
(DOLLAR AMOUNTS IN THOUSANDS)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
NINE MONTHS ENDED ----------------------------------------
SEPTEMBER 30, 1998 1997 1996 1995
------------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
(UNAUDITED)
Operating Revenues.................................. $ 1,092,506 $ 1,376,282 $ 1,300,688 $ 1,073,469
Operating Income.................................... 253,299 251,367 285,647 282,184
Net Income.......................................... 162,339 128,471 147,051 206,447
Net Utility Plant................................... 3,276,097 3,324,343 3,419,018 3,469,945
</TABLE>
<TABLE>
<CAPTION>
CAPITALIZATION AT
SEPTEMBER 30, 1998
-----------------------
<S> <C> <C> <C>
(UNAUDITED)
<CAPTION>
ACTUAL %
------------ ---
<S> <C> <C> <C>
Long-Term Debt................................................ $ 1,170,325 41
Company Obligated Mandatorily Redeemable Preferred Securities
of Subsidiary Trust Holding Solely Parent Junior
Subordinated Debentures..................................... 150,000 5
Preferred Stock............................................... 163,204 6
Common Equity................................................. 1,392,580 48
------------ ---
Total....................................................... $ 2,876,209 100
------------ ---
------------ ---
Short-Term Debt............................................... $ 127,781
Long-Term Debt Currently Maturing............................. $ 100,000
</TABLE>
5
<PAGE>
CENTRAL POWER AND LIGHT COMPANY
We are a public utility company engaged in the production, purchase,
transmission, distribution and sale of electricity in South Texas. We serve
approximately 627,900 retail customers in the south Texas area. Central and
South West Corporation ("CSW"), a Dallas-based registered public utility holding
company under the Public Utility Holding Company Act of 1935, as amended (the
"1935 Act"), owns all of our issued and outstanding common stock. Our executive
offices are located at 539 North Carancahua Street, Corpus Christi, Texas
78401-2802, telephone number (512) 881-5300.
RATIOS OF EARNINGS TO FIXED CHARGES
Our ratios of earnings to fixed charges for the twelve months ended
September 30, 1998 and for each of the years ended December 31, 1993 through
1997 are as follows:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------------------------------------
1997 1996 1995 1994 1993
TWELVE MONTHS --------- --------- --------- --------- ---------
ENDED SEPTEMBER
30,
1998
-----------------
(UNAUDITED)
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges(1)............... 3.14 2.48 2.86 2.63 3.24 2.69(2)
</TABLE>
- ------------------------
(1) For purposes of computing the ratios: (i) earnings consist of operating
income plus federal income taxes, deferred income taxes and investment tax
credits, other income and deductions, allowance for funds (both borrowed and
equity) used during construction and mirror construction work in progress
amortization, and (ii) fixed charges consist of interest on long-term debt
and short-term debt, and other interest charges.
(2) The ratio of earnings to fixed charges for 1993 was calculated before
cumulative effect of a change in accounting principles.
USE OF PROCEEDS
The net proceeds from the sale of the Senior Notes will be used to repay a
portion of our long-term debt, all or a portion of our short-term borrowings and
for other general corporate purposes, subject to applicable regulatory
requirements. If we do not use the net proceeds immediately, we may temporarily
invest them in short-term, interest-bearing obligations.
DESCRIPTION OF THE SENIOR NOTES
GENERAL. The following description sets forth certain general terms and
provisions of the Senior Notes to which any Prospectus Supplement may relate.
The description does not purport to be complete and is subject to, and qualified
in its entirety by, all of the provisions of the Senior Note Indenture (as
defined below), which is incorporated herein by reference and the form of which
is an exhibit to the Registration Statement of which this Prospectus is a part.
The particular terms of the Senior Notes offered by any Prospectus Supplement
and the extent, if any, to which such general provisions may apply to the Senior
Notes so offered will be described therein. References to section numbers under
this caption are references to the section numbers of the Senior Note Indenture.
Capitalized terms not defined herein have the meanings given to them in the
Senior Note Indenture.
The Senior Notes will be issued under an indenture (the "Senior Note
Indenture"), the form of which is an exhibit to the Registration Statement,
between the Company and The Bank of New York, a New York banking corporation, as
trustee (the "Senior Note Trustee").
There is no requirement under the Senior Note Indenture that future issues
of debt securities of the Company be issued under the Senior Note Indenture, and
the Company will be free to use other indentures or documentation, containing
provisions different from those included in the Senior Note
6
<PAGE>
Indenture or applicable to one or more issues of Senior Notes, in connection
with future issues of such other debt securities.
The Senior Note Indenture does not limit the aggregate principal amount of
the Senior Notes that may be issued thereunder. The Senior Note Indenture
provides that the Senior Notes will be issued in one or more series as notes or
debentures. The Senior Notes may be issued at various times and may have
differing maturity dates and may bear interest at differing rates. The
Prospectus Supplement applicable to each issue of Senior Notes will specify: (1)
the designation and aggregate principal amount of such Senior Notes; (2) the
date on which such Senior Notes will mature; (3) the interest rate or rates or
method of calculation of such rate or rates, on such Senior Notes, and the date
from which such interest shall accrue; (4) the dates on which such interest will
be payable; (5) the record dates for payments of interest; (6) any redemption
terms; (7) the period or periods within which the price or prices at which and
the terms and conditions upon which such Senior Notes may be repaid, in whole or
in part, at the option of the Holder thereof; (8) the place or places, if any,
in addition to or in the place of the office of the Trustee, where the principal
of (and premium, if any) and interest, if any, on such Senior Notes shall be
payable; and (9) other specific terms applicable to such Senior Notes. Unless
otherwise indicated in the applicable Prospectus Supplement, the Senior Notes
will be denominated in United States currency in minimum denominations of $1,000
and integral multiples thereof.
Unless otherwise indicated in the applicable Prospectus Supplement, there
are no provisions in the Senior Note Indenture or the Senior Notes that require
the Company to redeem, or permit the Holders to cause a redemption of, the
Senior Notes or that otherwise protect the Holders in the event that the Company
incurs substantial additional indebtedness, whether or not in connection with a
change in control of the Company. However, any change in control transaction
that involves the incurrence of additional long-term indebtedness (as notes or
otherwise) by the Company in such a transaction would require approval of state
utility regulatory authorities and, possibly, of federal utility regulatory
authorities. Management believes that such approvals would be unlikely in any
transaction that would result in the Company, or a successor to the Company,
having a highly leveraged capital structure.
REGISTRATION, TRANSFER, EXCHANGE AND FORM. Senior Notes of any series will
be exchangeable for other Senior Notes of the same series of any authorized
denominations and of a like aggregate principal amount and tenor. (Section 305)
Unless otherwise indicated in the applicable Prospectus Supplement, Senior
Notes may be presented for registration of transfer (duly endorsed or
accompanied by a duly executed written instrument of transfer), at the office or
agency maintained for such purpose with respect to any series of Senior Notes
and referred to in the applicable Prospectus Supplement, without service charge
and upon payment of any taxes and other governmental charges as described in the
Senior Note Indenture. (Section 305)
In the event of any redemption of Senior Notes of any series, the Senior
Note Trustee will not be required to exchange or register a transfer of any
Senior Notes of such series selected, called or being called for redemption
except, in the case of any Senior Note to be redeemed in part, the portion
thereof not to be so redeemed. (Section 305)
BOOK-ENTRY ONLY SYSTEM. Each series of Senior Notes may be issued in the
form of one or more global notes (the "Global Notes") representing all or part
of such series of Senior Notes and which will be deposited with or on behalf of
The Depository Trust Company as Depositary under the Senior Note Indenture (the
"Depositary") and registered in the name of the Depositary or nominee of the
Depositary. Certificated Senior Notes will not be exchangeable for Global Notes
and, except under the circumstances described below, the Global Notes will not
be exchangeable for certificated Senior Notes.
The Depositary has advised the Company as follows: The Depositary is a
limited-purpose trust company organized under the New York Banking Law, a
"banking organization" within the meaning of the New York Banking Law, a member
of the Federal Reserve System, a "clearing corporation" within the meaning of
the New York Uniform Commercial Code, and a "clearing agency" registered
pursuant to the
7
<PAGE>
provisions of Section 17A of the Exchange Act. The Depositary holds securities
that its participants ("Participants") deposit with the Depositary. The
Depositary also facilitates the settlement among Participants of securities
transactions, such as transfers and pledges, in deposited securities through
electronic computerized book-entry changes in Participants' accounts, thereby
eliminating the need for physical movement of securities certificates.
Participants include securities brokers and dealers, banks, trust companies,
clearing corporations and certain other organizations. The Depositary is owned
by a number of its Participants and by the New York Stock Exchange, Inc., the
American Stock Exchange Inc. and the National Association of Securities Dealers,
Inc. Access to The Depository Trust Company system is also available to others
such as securities brokers and dealers, banks and trust companies that clear
through or maintain a custodial relationship with a Participant, either directly
or indirectly. The Rules applicable to the Depositary and its Participants are
on file with the Commission.
Upon the issuance of the Global Notes in registered form, the Depositary
will credit, on its book-entry registration and transfer system, the respective
principal amounts of the Senior Notes represented by the Global Notes to the
accounts of Participants. The accounts to be credited shall be designated by the
Underwriters. Ownership of beneficial interests in the Global Notes will be
limited to Participants or persons that may hold interests through Participants.
Ownership of beneficial interests by Participants in the Global Notes will be
shown on, and the transfer of that ownership interest will be effected only
through, records maintained by the Depositary or its nominee. Ownership of
beneficial interests in the Global Notes by persons that hold through
Participants will be shown on, and the transfer of that ownership interest
within such Participant will be effected only through, records maintained by
such Participant. Owners of beneficial interests in the Global Notes will not
receive written confirmation from the Depositary of their purchases, but they
are expected to receive written confirmation providing details of the
transactions, as well as periodic statements of their holdings, from the
Participants through which they purchased beneficial interests in the Global
Notes. The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial interests in
the Global Notes.
So long as the Depositary, or its nominee, is the registered owner of the
Global Notes, the Depositary or its nominee, as the case may be, will be
considered the sole owner or Holder of the Senior Notes represented by the
Global Notes for all purposes under the Senior Note Indenture. Except as set
forth below, owners of beneficial interests in the Global Notes will not be
entitled to have Senior Notes registered in their names, will not receive or be
entitled to receive physical delivery of the Senior Notes in definitive form and
will not be considered the owner or Holders thereof under the Senior Note
Indenture.
Payment of principal of, premium, if any, and any interest on the Senior
Notes will be made to the Depositary or its nominee, as the case may be, as the
registered owner or the Holder of the Global Notes representing the Senior
Notes. None of the Company, the Senior Note Trustee, any paying agent or the
registrar for the Senior Notes will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests in the Global Notes or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
The Company has been advised by the Depositary that, upon receipt of any
payment of principal, premium or interest in respect of the Global Notes, the
Depositary will credit immediately Participants' accounts with payments in
amounts proportionate to their respective beneficial interests in the principal
amount of the Global Notes as shown on the records of the Depositary. The
Company also expects that payments by Participants to owners of beneficial
interests in the Global Notes held through such Participants will be governed by
standing instructions and customary practices, as is now the case with
securities held for the accounts of customers in bearer form or registered in
"street name" and will be the responsibility of such Participants.
The Global Notes 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 of the Depositary or a nominee of such successor. If
8
<PAGE>
the Depositary is at any time unwilling or unable to continue as Depositary and
a successor Depositary is not appointed by the Company within ninety days, the
Company will issue certificated notes in definitive registered form in exchange
for the Global Notes representing the Senior Notes. In addition, the Company may
at any time and in its sole discretion determine not to have any Senior Notes in
registered form represented by one or more global notes and, in such event, will
issue certificated notes in definitive form in exchange for the Global Notes
representing the Senior Notes. In any such instance, an owner of a beneficial
interest in the Global Notes will be entitled to physical delivery in definitive
form of certificated Senior Notes represented by the Global Notes equal in
principal amount to such beneficial interest and to have such certificated notes
registered in its name.
Management of the Depositary is aware that some computer applications,
systems, and the like for processing data ("Systems") that are dependent upon
calendar dates, including dates before, on, and after January 1, 2000, may
encounter "Year 2000 problems." The Depositary has informed its Participants and
other members of the financial community (the "Industry") that it has developed
and is implementing a program so that its Systems, as the same relate to the
timely payment of distributions (including principal and interest payments) to
securityholders, book-entry deliveries, and settlement of trades within the
Depositary (the "Depositary Services"), continue to function appropriately. This
program includes a technical assessment and a remediation plan, each of which is
complete. Additionally, the Depositary's plan includes a testing phase, which is
expected to be completed within appropriate time frames.
However, the Depositary's ability to perform properly its services is also
dependent upon other parties, including but not limited to issuers and their
agents, as well as third party vendors from whom the Depositary licenses
software and hardware, and third party vendors on whom the Depositary relies for
information or the provision of services, including telecommunication and
electrical utility service providers, among others. The Depositary has informed
the Industry that it is contacting (and will continue to contact) third party
vendors from whom the Depositary acquires services to: (i) impress upon them the
importance of such services being Year 2000 compliant; and (ii) determine the
extent of their efforts for Year 2000 remediation (and, as appropriate, testing)
of their services. In addition, the Depositary is in the process of developing
such contingency plans as it deems appropriate.
According to the Depositary, the foregoing information with respect to the
Depositary has been provided to the Industry for informational purposes only and
is not intended to serve as a representation, warranty, or contract modification
of any kind.
PAYING AGENTS. The Company will maintain an office or agency where Senior
Notes may be presented or surrendered for payment. The Company will give prompt
written notice to the Senior Note 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 or shall fail to furnish the Senior
Note Trustee with the address thereof, such presentations and surrenders may be
made or served at the corporate trust office of the Senior Note Trustee, and, in
such event, the Senior Note Trustee shall act as the Company's agent to receive
all such presentations and surrenders. (Section 1002)
All monies paid by the Company to a paying agent for the payment of
principal of, interest or premium, if any, on any Senior Note which remain
unclaimed at the end of two years after such principal, interest or premium
shall have become due and payable will be repaid to the Company and the Holder
of such Senior Note will thereafter look only to the Company for payment
thereof. (Section 1003)
CONSOLIDATION, MERGER, CONVEYANCE, SALE OR TRANSFER. Nothing contained in
the Senior Note Indenture prevents the Company from consolidating with or
merging into another corporation or conveying, selling or otherwise transferring
its properties and assets substantially as an entirety to any Person, provided
that the corporation formed by such consolidation or into which the Company is
merged or the Person which acquires by conveyance, sale or transfer the
properties and assets of the Company substantially as an entirety is a
corporation organized and existing under the laws of the United States of
America, any State thereof or the District of Columbia and expressly assumes by
an indenture supplemental thereto, executed
9
<PAGE>
and delivered to the Senior Note Trustee, in form satisfactory to the Senior
Note Trustee, the due and punctual payment of the principal of (and premium, if
any) and interest, if any, on all the Senior Notes and the performance of every
covenant of the Senior Note Indenture on the part of the Company to be performed
or observed. (Section 801)
LIMITATION ON LIENS. Nothing contained in the Senior Note Indenture or in
the Senior Notes in any way restricts or prevents the Company or any subsidiary
from incurring any indebtedness; provided that if this covenant is made
applicable to the Senior Notes of any particular series, the Company will not,
and will not permit any subsidiary to, issue, assume or guarantee any notes,
bonds, debentures or other similar evidences of indebtedness for money borrowed
("Debt") secured by a mortgage, lien, pledge, security interest or other
encumbrance ("Mortgage") upon any property without effectively providing that
the outstanding Senior Notes (together with, if the Company so determines, any
other indebtedness or obligation then existing or thereafter created ranking
equally with the Senior Notes) shall be secured equally and ratably with (or
prior to) such Debt so long as such Debt shall be so secured. This restriction
will not, however, apply to (a) Mortgages in existence on the date of the
original issue of the Senior Notes to which this restriction is made applicable;
(b) Mortgages created solely for the purpose of securing Debt incurred to
finance, refinance or refund the purchase price or cost (including the cost of
construction) of property acquired after the date hereof (by purchase,
construction or otherwise), or Mortgages in favor of guarantors of obligations
or Debt representing, or incurred to finance, refinance or refund, such purchase
price or cost, provided that no such Mortgage shall extend to or cover any
property other than the property so acquired and improvements thereon; (c)
Mortgages which secure only indebtedness owing by a subsidiary to the Company,
to one or more subsidiaries, or to the Company and one or more subsidiaries; (d)
Mortgages on any property or assets acquired from a corporation which is merged
with or into the Company or any subsidiary, or any Mortgages on the property or
assets of any corporation or other entity existing at the time such corporation
or other entity becomes a subsidiary and, in either such case, is not created as
a result of or in connection with or in anticipation of any such transaction
(unless such Mortgage was created to secure or provide for the payment of any
part of the purchase price of such corporation); (e) any Mortgage on any
property or assets existing at the time of acquisition thereof and which is not
created as a result of or in connection with or in anticipation of such
acquisition (unless such Mortgage was created to secure or provide for the
payment of any part of the purchase price of such property or assets); or (f)
any extension, renewal or replacement of any Mortgage referred to in the
foregoing clauses (a) through (e), provided that the principal amount of Debt so
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 Mortgage shall be limited to all or part of substantially the
same property which secured the Mortgage extended, renewed or replaced (plus
improvements on such property). Notwithstanding the foregoing, the Company and
one or more subsidiaries may issue, assume or guarantee Debt secured by
Mortgages which would otherwise be subject to the foregoing restrictions in an
aggregate principal amount which, together with the aggregate outstanding
principal amount of all other Debt of the Company which would otherwise be
subject to the foregoing restrictions (not including Debt permitted to be
secured under clauses (a) through (f) above) does not at the time of issuance,
assumption or guarantee thereof exceed twenty percent of the Net Tangible
Assets, which is defined as the total of all assets (including revaluations
thereof as a result of commercial appraisals, price level restatement or
otherwise) appearing on a balance sheet of the Company and its subsidiaries, net
of applicable reserves and deductions, but excluding goodwill, trade names,
trademarks, patents, unamortized debt discount and all other like intangible
assets (which term shall not be construed to include such revaluations), less
the aggregate of the current liabilities of the Company and its subsidiaries
appearing on such balance sheet. The following types of transactions, among
others, shall not be deemed to create Debt secured by Mortgages: Mortgages
required by any contract or statute in order to permit the Company or a
subsidiary to perform any contract or subcontract made by it with or at the
request of a governmental entity or any department, agency or instrumentality
thereof, or to secure partial, progress, advance or any other
10
<PAGE>
payments to the Company or any subsidiary by such governmental unit pursuant to
the provisions of any contract or statute. (Section 1007)
MODIFICATION OF THE SENIOR NOTE INDENTURE. The Senior Note Indenture
contains provisions permitting the Company and the Senior Note Trustee, with the
consent of the Holders of a majority in principal amount of the outstanding
Senior Notes, of all series affected by the modification (voting as one class),
to modify the Senior Note Indenture or any supplemental indenture or the rights
of the Holders of the Senior Notes of such series; provided that no such
modification shall without the consent of the Holders of each outstanding Senior
Note affected thereby (a) change the fixed date upon which the principal of or
the interest on any Senior Note is due and payable, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or reduce the amount of the principal of an Original Issue
Discount Security that would be payable upon a declaration of acceleration of
the maturity thereof, or change any place of payment where, or the currency in
which, any Senior Note or any premium or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any payment on or
after the date such payment is due (or, in the case of redemption, on or after
the date fixed for such redemption (the "Redemption Date")), (b) reduce the
aforesaid percentage of Senior Notes, the consent of the Holders of which is
required for any modification of the applicable Senior Note Indenture or for
waiver by the Holders of certain of their rights or (c) modify certain
provisions of the Senior Note Indenture. (Section 902) An Original Issue
Discount Security means any security authenticated and delivered under the
Senior Note Indenture which provides for an amount less than the principal
amount thereof to be due and payable upon the declaration of acceleration of the
maturity thereof.
The Senior Note Indenture also contains provisions permitting the Company
and the Senior Note Trustee to amend the Senior Note Indenture in certain
circumstances without the consent of the Holders of any Senior Notes to evidence
the merger of the Company, the replacement of the Senior Note Trustee and for
certain other purposes.
EVENTS OF DEFAULT. An Event of Default with respect to the Senior Notes is
defined in the Senior Note Indenture as being: default for 30 days in payment of
any interest of the Senior Notes; default for three days in payment of
principal, including the payment of principal (or premium, if any) when due
pursuant to any redemption provision of the Senior Notes; default in the payment
of any sinking fund installment, if any, pursuant to the terms of the Senior
Notes, and continuance of such default for a period of three days; default in
the performance, or breach, of any covenant or warranty of the Company in the
Senior Note Indenture (other than certain covenants or warranties a default in
whose performance or whose breach is specifically dealt with elsewhere in the
Senior Note Indenture) and continuance of such default or breach for a period of
90 days after written notice is given to the Company by the Senior Note Trustee
or to the Company and the Senior Note Trustee by the Holders of 33% or more in
aggregate principal amount of the Senior Notes; and certain events of
bankruptcy, insolvency, reorganization, receivership or liquidation involving
the Company. (Section 501) The Company will be required to file with the Senior
Note Trustee annually an officers' certificate as to the absence of default in
performance of certain covenants in the Senior Note Indenture. (Section 1008)
The Senior Note Indenture provides that the Senior Note Trustee may withhold
notice to the Holders of the Senior Notes of any default (except in payment of
principal of (or premium, if any), or interest on, the Senior Notes or in the
payment of any sinking fund installment with respect to the Senior Notes) if the
Senior Note Trustee in good faith determines that it is in the interest of the
Holders of the Senior Notes to do so. (Section 602) The Senior Note Indenture
provides that, if an Event of Default with respect to the Senior Notes specified
therein shall have happened and be continuing, either the Senior Note Trustee or
the Holders of 33% or more in aggregate principal amount of the Senior Notes may
declare the principal amount of all the Senior Notes to be due and payable
immediately, but if the Company shall cure all defaults and certain other
conditions are met, such declaration may be annulled and past defaults may be
waived by the Holders of a majority in aggregate principal amount of the Senior
Notes. (Section 502)
11
<PAGE>
Subject to the provisions of the Senior Note Indenture relating to the
duties of the Senior Note Trustee, the Senior Note Trustee will be under no
obligation to exercise any of its rights or powers under the Senior Note
Indenture at the request or direction of any of the Holders of the Senior Notes,
unless such Holders shall have offered to the Senior Note Trustee reasonable
indemnity. (Section 603)
Subject to such provision for indemnification, the Holders of a majority in
principal amount of the Senior Notes will have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Senior Note Trustee, or exercising any trust or power conferred on the Senior
Note Trustee with respect to the Senior Notes, provided that the Senior Note
Trustee shall have the right to decline to follow any such direction if the
Senior Note Trustee shall determine that the action so directed conflicts with
any law or the provisions of the Senior Note Indenture or if the Senior Note
Trustee shall determine that such action would be prejudicial to Holders not
taking part in such direction. (Section 512)
DEFEASANCE. The Company, at its option, (a) will be Discharged from any and
all obligations in respect of the Senior Notes (except in each case for certain
obligations to register the transfer or exchange of Senior Notes, replace
stolen, lost or mutilated Senior Notes, maintain paying agencies and hold moneys
for payment in trust) or (b) need not comply with certain covenants of the
Senior Note Indenture described under "--Consolidation, Merger, Conveyance, Sale
or Transfer" and "--Limitation of Liens" or to certain covenants relating to
corporate existence and maintenance of properties and insurance, in each case,
if (1) the Company irrevocably deposits with the Senior Note Trustee, in trust,
(i) money or (ii) in certain cases, (A) U.S. Government Obligations which
through the payment of interest and principal in respect thereof in accordance
with their terms will provide money in an amount, or (B) a combination thereof,
in each case sufficient to pay and discharge (x) the principal of (and premium,
if any) and each installment of principal (and premium, if any) and interest, if
any, on the outstanding Senior Notes on the dates such payments are due, in
accordance with the terms of the Senior Notes, or to and including the
Redemption Date irrevocably designated by the Company pursuant to the final
sentence of this section and (y) any mandatory sinking fund payments applicable
to the Senior Notes on the day on which payments are due and payable in
accordance with the terms of the Senior Note Indenture and of the Senior Notes;
(2) no Event of Default or event which with notice or lapse of time would become
an Event of Default (including by reason of such deposit) with respect to the
Senior Notes shall have occurred and be continuing on the date of such deposit;
(3) the Company delivers to the Senior Note Trustee an opinion of counsel to the
effect (i) that the Holders will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit and defeasance of certain
obligations; (ii) that such provision would not cause any outstanding Senior
Notes then listed on any national securities exchange to be delisted as a result
thereof; and (iii) that the defeasance trust is not, or is registered as, an
investment company under the Investment Company Act of 1940; and (4) the Company
has delivered to the Senior Note Trustee an officers' certificate and an opinion
of counsel, each stating that all conditions precedent provided for in the
Senior Note Indenture relating to the satisfaction and discharge of the Senior
Notes have been complied with. (Sections 403, 1011) Discharged means, with
respect to the Senior Notes of any series, the discharge of the entire
indebtedness represented by, and obligations of the Company under, the Senior
Notes of such series and in the satisfaction of all the obligations of the
Company under the Senior Note Indenture relating to the Senior Notes of such
series, except (A) the rights of Holders of the Senior Notes of such series to
receive, from the trust fund established pursuant to the Senior Note Indenture,
payment of the principal of and interest and premium, if any, on the Senior
Notes of such series when such payments are due, (B) the Company's obligations
with respect to the Senior Notes of such series with respect to registration,
transfer, exchange and maintenance of a place of payment and (C) the rights,
powers, trusts, duties, protections and immunities of the Senior Note Trustee
under the Senior Note Indenture. (Section 101) If the Company has deposited or
caused to be deposited money or U.S. Government Obligations to pay or discharge
the principal of (and premium, if any) and interest, if any, on the outstanding
Senior Notes to and including a Redemption Date on which all of the outstanding
Senior Notes are to be redeemed, such Redemption Date shall be irrevocably
designated by a Board of Directors resolution delivered to the Senior Note
Trustee on or prior to the date of deposit of such money or U.S. Government
12
<PAGE>
Obligations, and such Board of Directors resolution shall be accompanied by an
irrevocable Company Request that the Senior Note Trustee give notice of such
redemption in the name and at the expense of the Company not less than 30 nor
more than 60 days prior to such Redemption Date in accordance with the Senior
Note Indenture. (Sections 403) U.S. Government Obligations means direct
obligations of the United States for the payment of which its full faith and
credit is pledged, or obligations of a person controlled or supervised by and
acting as an agency or instrumentality of the United States and the payment of
which is unconditionally guaranteed by the United States, and shall also include
a depositary receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation or a specific payment of interest on or
principal of any such U.S. Government Obligation held by such custodian for the
account of a holder of a depositary receipt; provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligation evidenced by such
depositary receipt. (Section 101)
RESIGNATION OR REMOVAL OF SENIOR NOTE TRUSTEE. The Senior Note Trustee may
resign at any time upon written notice to the Company specifying the day upon
which the resignation is to take effect and such resignation will take effect
immediately upon the later of the appointment of a successor Senior Note Trustee
and such specified day. (Section 610)
The Senior Note Trustee may be removed at any time by an instrument or
concurrent instruments in writing delivered to the Senior Note Trustee and the
Company and signed by the Holders, or their attorneys-in-fact, of at least a
majority in principal amount of the then outstanding Senior Notes. In addition,
under certain circumstances, the Company may remove the Senior Note Trustee upon
notice to the Holder of each Senior Note outstanding and the Senior Note
Trustee, and appointment of a successor Senior Note Trustee. (Section 610)
NO RECOURSE AGAINST OTHERS. The Senior Note Indenture provides that no
recourse for the payment of the principal of or any premium or interest on any
Security, or for any claim based thereon or otherwise in respect thereof, and no
recourse under or upon any obligation, covenant or agreement of the Company,
contained in the Senior Note Indenture or in any supplemental indenture, or in
any Senior Note, or because of the creation of any indebtedness represented
thereby, will be had against any incorporator, stockholder, officer or director,
as such, past, present or future of the Company or any successor corporation,
either directly or through the Company or any successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that all such
liability is expressly waived and released as a condition of, and in
consideration for, the execution of the Senior Note Indenture and the issuance
of the Senior Notes. (Section 114) Such waiver may not be effective to waive
liabilities under the Federal securities laws and it is the view of the
Commission that such a waiver is against public policy.
CONCERNING THE SENIOR NOTE TRUSTEE. The Trustee under the Senior Note
Indenture, and affiliates of the Trustee, are also trustees under other
indentures and trust agreements of the Company.
LEGAL OPINIONS
Legal opinions relating to the validity of the Senior Notes will be given by
Milbank, Tweed, Hadley & McCloy, 1 Chase Manhattan Plaza, New York, New York
10005, counsel for the Company, and Sidley & Austin, One First National Plaza,
Chicago, Illinois 60603, counsel for any underwriters, agents or dealers. Sidley
& Austin and Milbank, Tweed, Hadley & McCloy have represented Central and South
West Corporation and affiliates of Central and South West Corporation (including
the Company) from time to time in connection with certain legal matters. All
matters of Texas law will be passed upon by Vinson & Elkins L.L.P., Dallas,
Texas.
13
<PAGE>
EXPERTS
The audited financial statements and schedules incorporated by reference in
this Prospectus and elsewhere in the Registration Statement have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
report dated February 16, 1998, with respect thereto, and are incorporated
herein by reference in reliance upon the authority of said firm as experts in
accounting and auditing in giving said reports.
PLAN OF DISTRIBUTION
We may sell the Senior Notes offered hereby (i) through negotiation with one
or more underwriters; (ii) through one or more agents or dealers designated from
time to time; (iii) directly to purchasers; or (iv) through any combination of
the above. The distribution of the Senior Notes may be effected from time to
time in one or more transactions at a fixed price or prices which may be
changed, at market prices prevailing at the time of sale, at prices related to
such prevailing market prices or at negotiated prices. A Prospectus Supplement
or a supplement thereto will describe the method of distribution of the Senior
Notes of any series.
If we use any underwriters in the sale of Senior Notes, we will enter into
an underwriting agreement, distribution agreement or similar agreement with such
underwriters prior to the time of sale, and the names of the underwriters used
in the transaction will be set forth in the Prospectus Supplement or a
supplement thereto relating to such sale. If an underwriting agreement is
executed, the Senior Notes will be acquired by the underwriters for their own
account and may be resold from time to time in one or more transactions,
including negotiated transactions, at a fixed public offering price or at
varying prices determined at the time of the sale. Unless otherwise indicated in
the Prospectus Supplement, the underwriting or purchase agreement will provide
that the underwriter or underwriters are obligated to purchase all of the Senior
Notes offered in the Prospectus Supplement if any are purchased.
If any of the Senior Notes are sold through agents designated by us from
time to time, the Prospectus Supplement or a supplement thereto will name any
such agent, set forth any commissions payable by us to any such agent and the
obligations of such agent with respect to the Senior Notes. Unless otherwise
indicated in the Prospectus Supplement or a supplement thereto, any such agent
will be acting on a best efforts basis for the period of its appointment.
Certain persons participating in an offering of the Senior Notes may engage
in transactions that stabilize, maintain or otherwise affect the price of the
Senior Notes. Specifically, the underwriters, if any, may overallot in
connection with the offering, and may bid for, and purchase, the Senior Notes in
the open market.
The Senior Notes of any series, when first issued, will have no established
trading market. Any underwriters or agents to or through whom Senior Notes are
sold by us for public offering and sale may make a market in such Senior Notes,
but underwriters and agents will not be obligated to do so and may discontinue
any market making at any time without notice. No assurance can be given as to
the liquidity of the trading market for any Senior Notes.
In connection with the sale of the Senior Notes, any purchasers,
underwriters or agents may receive compensation from us or from purchasers in
the form of concessions or commissions. The underwriters will be, and any agents
and any dealers participating in the distribution of the Senior Notes may be,
deemed to be underwriters within the meaning of the Securities Act. The
agreement between us and any purchasers, underwriters or agents will contain
reciprocal covenants of indemnity, and will provide for contribution by us in
respect of our indemnity obligations, between us and the purchasers,
underwriters, or agents against certain liabilities, including liabilities under
the Securities Act.
Certain of the underwriters or agent and their associates may engage in
transactions with, or perform services for, us and our affiliates in the
ordinary course of business.
14
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses in connection with the issuance and distribution of
the securities being registered, other than underwriting compensation, are:
<TABLE>
<CAPTION>
<S> <C>
Filing fee for Registration Statement................................................................. $ 97,300*
Printing costs........................................................................................ 10,000
Fees and expenses of Senior Note Trustee.............................................................. 35,000
Fees of rating agencies............................................................................... 45,000
Fees of accountants................................................................................... 15,000
Reimbursement of underwriters' expenses and counsel fees in connection with qualification or
registration of the Senior Notes under state securities or "blue sky" laws.......................... 5,000
Expenses of Central and South West Services, Inc...................................................... 5,000
Counsel Fees:
Milbank, Tweed, Hadley & McCloy
New York, New York................................................................................ 100,000
Vinson & Elkins L.L.P.
Dallas, Texas..................................................................................... 10,000
Miscellaneous and incidental expenses, including travel, telephone, copying, postage.................. 5,000
----------
Total................................................................................................. $ 327,300
----------
----------
</TABLE>
- ------------------------
* Actual Amount
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 2.02 of the Texas Business Corporation Act provides broadly for
indemnification of directors and officers against claims and liabilities against
them in their capacities as such. The Company's bylaws also provide for the
indemnification of officers and directors by the Company. In addition, the
Company has purchased Directors' and Officers' Liability and Company
Reimbursement Liability Insurance which, in certain circumstances, provide for
payments to the directors and officers of the Company, in the event of such
liabilities.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
<C> <S> <C>
1 Form of Underwriting Agreement for the Senior Notes.
3(a) Articles of Incorporation (incorporated herein by reference to Exhibit 3.1 to the Incorporated
Company's Form 10-Q for the Quarter ended March 31, 1997). by reference
3(b) By-Laws (incorporated herein by reference to Exhibit 3.1 to the Company's Form 10-Q Incorporated
for the Quarter ended September 30, 1996). by reference
4 Form of Senior Note Indenture.
5 Opinion of Milbank, Tweed, Hadley & McCloy, counsel for the Company, as to the
legality of the Senior Notes.
12(a) Statement re: computation of Ratio of Earnings to Fixed Charges for the five years Incorporated
ended December 31, 1997 (incorporated herein by reference to Exhibit 12 to the by reference
Company's 1997 Annual Report on Form 10-K).
</TABLE>
II-1
<PAGE>
<TABLE>
<C> <S> <C>
12(b) Statement re: computation of Ratio of Earnings to Fixed Charges for the nine months Incorporated
ended September 30, 1998, (incorporated herein by reference to Exhibit 12.1 to the by reference
Company's Form 10-Q for the Quarter ended September 30, 1998).
23(a) Consent of Arthur Andersen LLP.
23(b) Consent of Milbank, Tweed, Hadley & McCloy (contained in Exhibit 5 above).
24 Power of Attorney (included on signature page of the Registration Statement).
25 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of Bank of New
York, as Senior Note Trustee, under the Senior Note Indenture.
27 Financial Data Schedule (incorporated herein by reference to Exhibit 27.2 to the Incorporated
Company's Form 10-Q for the Quarter ended September 30, 1998). by reference
</TABLE>
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
this registration statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b); if, in the aggregate, the changes in
volume and price represent no more than 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in this registration statement;
provided, however, that the undertakings set forth in paragraphs (i) and (ii)
above do not apply if the information required to be included in a
post-effective amendment by these paragraphs is contained in periodic reports
filed by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange
II-2
<PAGE>
Act of 1934 that is incorporated by reference in this registration statement
shall be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Corpus Christi, State of Texas, on November 18, 1998.
<TABLE>
<S> <C> <C>
CENTRAL POWER AND LIGHT COMPANY
By /s/ WENDY G. HARGUS
-----------------------------------------
Wendy G. Hargus
TREASURER
</TABLE>
POWER OF ATTORNEY
Each person whose signature appears below hereby authorizes and appoints
Wendy G. Hargus and Stephen D. Wise or either of them, as his or her
attorney-in-fact, with full power of substitution and resubstitution to sign and
file on his or her behalf individually and in each such capacity stated below
any and all amendments and post-effective amendments to this Registration
Statement, including any amendment filed after the date hereof pursuant to Rule
462(b) under the Securities Act of 1933, as amended, as fully as such person
could do in person, hereby verifying and confirming all that said
attorney-in-fact, or either of them, or their or his substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on November 18, 1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------ --------------------------
<C> <S>
/s/ J. GONZALO SANDOVAL General Manager/President
- ------------------------------ (principal executive
J. Gonzalo Sandoval officer); Director
/s/ R. RUSSELL DAVIS Controller (principal
- ------------------------------ accounting and
R. Russell Davis financial officer)
/s/ E. R. BROOKS
- ------------------------------ Director
E. R. Brooks
- ------------------------------ Director
Ruben M. Garcia
/s/ ROBERT A. MCALLEN
- ------------------------------ Director
Robert A. McAllen
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------ --------------------------
<C> <S>
- ------------------------------ Director
Pete Morales, Jr.
/s/ JOHN F. BRIMBERRY
- ------------------------------ Director
John F. Brimberry
/s/ GLENN FILES
- ------------------------------ Director
Glenn Files
/s/ H. LEE RICHARDS
- ------------------------------ Director
H. Lee Richards
/s/ ALPHONSO R. JACKSON
- ------------------------------ Director
Alphonso R. Jackson
/s/ GERALD E. VAUGHN
- ------------------------------ Director
Gerald E. Vaughn
</TABLE>
II-5
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. EXHIBIT
- ----------- --------------------------------------------------------------------------------------
<C> <S> <C>
1 Form of Underwriting Agreement for the Senior Notes.
3(a) Articles of Incorporation (incorporated herein by reference to Exhibit 3.1 to the Incorporated
Company's Form 10-Q for the Quarter ended March 31, 1997). by reference
3(b) By-Laws (incorporated herein by reference to Exhibit 3.1 to the Company's Form 10-Q Incorporated
for the Quarter ended September 30, 1996). by reference
4 Form of Senior Note Indenture.
5 Opinion of Milbank, Tweed, Hadley & McCloy, counsel for the Company, as to the
legality of the Senior Notes.
12(a) Statement re: computation of Ratio of Earnings to Fixed Charges for the five years Incorporated
ended December 31, 1997 (incorporated herein by reference to Exhibit 12 to the by reference
Company's 1997 Annual Report on Form 10-K).
12(b) Statement re: computation of Ratio of Earnings to Fixed Charges for the nine months Incorporated
ended September 30, 1998, (incorporated herein by reference to Exhibit 12.1 to the by reference
Company's Form 10-Q for the Quarter ended September 30, 1998).
23(a) Consent of Arthur Andersen LLP.
23(b) Consent of Milbank, Tweed, Hadley & McCloy (contained in Exhibit 5 above).
24 Power of Attorney (included on signature page of the Registration Statement).
25 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of Bank of New
York, as Senior Note Trustee, under the Senior Note Indenture.
27 Financial Data Schedule (incorporated herein by reference to Exhibit 27.2 to the Incorporated
Company's Form 10-Q for the Quarter ended September 30, 1998). by reference
</TABLE>
<PAGE>
EXHIBIT 1
CENTRAL POWER AND LIGHT COMPANY
SENIOR NOTES
UNDERWRITING AGREEMENT
, 199
----------------- --
Central Power and Light Company
539 North Caracahua Street
Corpus Christi, Texas 78401-2802
Dear Sirs:
We (the "Managers") understand that Central Power and Light
Company, a Texas corporation (the "Company"), proposes to issue and sell
$ _________ aggregate principal amount of its ________% Senior Notes due
___________ (the "Offered Securities"). Subject to the terms and conditions set
forth herein or incorporated by reference herein, the Company hereby agrees to
sell and the underwriter or underwriters named in Schedule I hereto (such
underwriter or underwriters being herein called the "Underwriters") agree to
purchase, severally and not jointly, the principal amounts of such Offered
Securities set forth opposite their names in Schedule I hereto at ________% of
their principal amount plus accrued interest, if any, from _______________,
199__ to the date of payment and delivery.
The Underwriters will pay for such Offered Securities at the
offices of Milbank, Tweed, Hadley & McCloy, 1 Chase Manhattan Plaza, New York,
New York 10005 at 10:00 a.m., New York Time, on ____________, 199__, or at such
other place and time, not later than ____________, 199__, as shall be mutually
agreed. The Offered Securities shall be concurrently delivered to the
Underwriters at the offices of ________________________________.
The Offered Securities shall have the following terms:
Maturity: ,
---------------------- -------
Interest Rate: %
-------------
Mandatory and Optional
Sinking-Fund Provisions: As described in the Prospectus
and applicable Prospectus
Supplement for the Offered
Securities
Optional Redemption Provisions: As described in the Prospectus
and applicable Prospectus
Supplement for the Offered
Securities
Interest Payment Dates: and
-----------------
, commencing
-----------------
, 199
------------------ ---
<PAGE>
Address for Notices
to Managers under
Underwriting Agreement:
Payment Method:
All the provisions contained in the document entitled Central
Power and Light Company Underwriting Agreement Standard Provisions (Senior
Notes-Shelf) dated ____________, 199__, a copy of which you and we have
previously received, are herein incorporated by reference in their entirety and
shall be deemed to be a part of this Underwriting Agreement to the same extent
as if such provisions had been set forth in full herein. References herein and
therein to numbered sections of the Underwriting Agreement shall mean the
numbered sections of such Standard Provisions.
Please confirm your agreement by having an authorized officer sign
a copy of this Underwriting Agreement in the space set forth below and returning
the signed copy to us. This Underwriting Agreement may be signed in any number
of counterparts with the same effect as if the signature thereto and hereto were
upon the same instrument. It is understood that our acceptance of this agreement
on behalf of each of the Underwriters is or will be pursuant to the authority
set forth in a form of Agreement Among Underwriters, the form of which shall be
submitted to the Company for examination, upon request.
Very truly yours,
By:
--------------------------------
Title:
-----------------------------
(Acting severally on behalf of themselves
and the several Underwriters named in
Schedule I hereto)
Accepted:
CENTRAL POWER AND LIGHT COMPANY
By:
-----------------------------
Name:
Title:
2
<PAGE>
<TABLE>
<CAPTION>
Schedule I
-----------
Principal
Amount of
Offered
Underwriters Securities
------------- ------------
<S> <C>
$
Total $
</TABLE>
<PAGE>
CENTRAL POWER AND LIGHT COMPANY
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (SENIOR NOTES-SHELF)
Dated ______________, 199__
From time to time Central Power and Light Company, a Texas
corporation (the "Company"), may enter into one or more underwriting agreements
that provide for the sale of designated securities to the several underwriters
named therein. The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement and any such underwriting
agreement, including the provisions incorporated therein by reference, is herein
referred to as the "Underwriting Agreement".
The Company proposes to issue the series of Senior Notes specified
in the attached Underwriting Agreement (the "Offered Securities") pursuant to
the provisions of its Indenture dated _____________, 1998, as the same may from
time to time be amended or supplemented (the "Indenture"), to The Bank of New
York, a New York banking association, as Trustee (the "Trustee"). The Offered
Securities will have the terms and rights, including the maturity, rate and
times of payment of interest, selling price and redemption terms, and other
terms, as set forth in the Underwriting Agreement and Prospectus (as hereinafter
defined). The Underwriting Agreement shall be in the form of an executed writing
(which may be in counterparts) and may be evidenced by facsimile or any other
electronic transmission designed to produce a written record of communications
transmitted.
1. Representations and Warranties of the Company.
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (File No.
333-_______), including a prospectus, relating to the Offered Securities, and
the offering thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "Securities Act"), and such registration
statement has become effective. The Company has prepared or will promptly
prepare for filing with, or transmission for filing to, the Commission, pursuant
to Rule 424 under the Securities Act, a Prospectus Supplement (the "Supplement")
for the purpose of supplying information in respect of the public offering of
the Offered Securities, the names of the underwriter or group of underwriters
and other matters. The registration statement, as amended at the time it became
effective, including the information contained in the final prospectus filed
with the Commission pursuant to Rule 424(b) of the Securities Act, and the
prospectus, as supplemented by the Supplement, relating to the Offered
Securities in final form as filed with the Commission pursuant to Rule 424 under
the Securities Act, are hereinafter called the "Registration Statement" and the
"Prospectus", respectively. The term "Basic Prospectus" means the prospectus
included in the Registration Statement.
The term "preliminary prospectus" means a preliminary prospectus
supplement, if any, relating to the Offered Securities together with the Basic
Prospectus. Whenever the word "Registration Statement", "registration
statement", "Prospectus", "preliminary prospectus" or "prospectus" is used
herein it shall be deemed to include all documents incorporated therein by
reference pursuant to the requirements of Form S-3 under the Securities Act (the
"Incorporated Documents").
(b) The Commission has entered an order dated
December 30, 1997, under the Public Utility Holding Company Act of 1935, as
amended (the "Holding Company Act"), permitting to become effective the Form U-1
Application-Declaration filed by the Company with respect to the issue and sale
of the Offered Securities. A copy of such order heretofore entered by the
Commission has been or will be delivered to the Underwriters.
<PAGE>
(c) Except as otherwise contemplated herein, no approval,
authorization, consent, certificate or order of any State commission or
regulatory authority is necessary with respect to the issuance or the sale of
the Offered Securities by the Company.
(d) The Basic Prospectus relating to the Offered Securities
as originally filed, or as a part of any amendment thereto, any preliminary
prospectus at the time of its issuance, and the Registration Statement and the
Prospectus and any amendment or supplement to the Registration Statement or the
Prospectus as of their effective or issue dates, and as of the Closing Date (as
hereinafter defined), complied or will comply, in each case in all material
respects, with the provisions of the Securities Act and the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"), and the rules and regulations
of the Commission under said Acts, and neither the Registration Statement nor
any amendment thereto contains or will contain an untrue statement of a material
fact or omits or will omit to state a material fact required to be stated
therein or necessary in order to make the statements therein not misleading and
the Basic Prospectus, any preliminary prospectus, the Prospectus or any
amendment or supplement thereto does not include and will not include an untrue
statement of a material fact and does not omit and will not omit to state a
material fact required to be stated therein or necessary to make the statements
therein in light of the circumstances under which they were made not misleading;
provided that the foregoing representations and warranties in this subsection
(d) shall not apply to omissions from the Registration Statement or Prospectus
resulting from the failure of any of the Underwriters to furnish the Company
with the information pertaining to such Underwriters and the underwriting of the
Offered Securities required to complete the Registration Statement or the
Prospectus, to statements in the Form T-1 filed by the Trustee as exhibit to the
Registration Statement or to statements in or omissions from the Prospectus made
in reliance upon and in conformity with information furnished in writing to the
Company by any of the Underwriters for use in connection with the preparation of
the Prospectus. The Incorporated Documents that were filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), complied at their
respective times of filing, and any documents deemed to be incorporated in the
Registration Statement and Prospectus at all times during which a prospectus is
required to be delivered under the Securities Act will comply at their
respective times of filing, with the provisions of the Exchange Act and the
rules and regulations of the Commission thereunder.
(e) Except as the Company may have furnished supplemental
information to each prospective Underwriter or to the Managers prior to the
receipt of proposals to purchase the Offered Securities as to matters to be
reflected in the Prospectus, since the respective dates as of which information
is given in the Registration Statement and in the Prospectus, there has been no
(A) material adverse change in the condition, financial or otherwise, or in the
earnings of the Company, or (B) adverse development concerning the Company's
business or assets which would result in a material adverse change in its
prospective financial condition or results of operations, except such changes as
are set forth or contemplated in such Registration Statement (including the
financial statements and notes thereto included or incorporated by reference in
the Registration Statement) or the Prospectus.
(f) At or prior to the acceptance by the Company of a
proposal for the purchase of the Offered Securities, the Company will have taken
all corporate action necessary to be taken by it to authorize the acceptance of
such proposal and, at or before the Closing Date, will have taken all corporate
action necessary to be taken by it to authorize the performance by it of all
obligations on its part to be performed under the Underwriting Agreement; and
the consummation of the transactions contemplated in, and the fulfillment of the
terms of, the Underwriting Agreement will not result in a breach of any of the
terms and provisions of, or constitute a default under, any indenture, mortgage,
deed of trust or other agreement or instrument to which the Company is a party
at the Closing Date, or the Restated Articles of Incorporation of the Company,
as amended, or any order, rule or regulation applicable to the Company of any
court or of any state or Federal regulatory body or administrative agency having
jurisdiction over the Company or over its property.
(g) Arthur Andersen L.L.P. are independent accountants with
respect to the Company as required by the Securities Act and the applicable
rules and regulations thereunder.
2
<PAGE>
2. Purchase, Sale and Delivery of Offered Securities.
The Company is advised by the Managers that the Underwriters
propose to make a public offering of their respective portions of the Offered
Securities as soon after the Underwriting Agreement is entered into as in the
Managers' judgment is advisable. The terms of the public offering of the Offered
Securities are or will be set forth in the Prospectus.
Payment for the Offered Securities shall be made by certified or
official bank check or checks payable to the Company or its order in immediately
available Federal funds (unless the Underwriting Agreement shall otherwise
specify) at the time and place set forth in the Underwriting Agreement upon
delivery to the Managers for the respective accounts of the several Underwriters
of the Offered Securities registered in such names and in such denominations as
the Managers shall request in writing not less than two full business days prior
to the date of delivery. The Company agrees to have the Offered Securities
available for inspection, checking and packaging by the Managers at the location
indicated in the Underwriting Agreement not later than 1:00 P.M. on the business
day next prior to the Closing Date. The time and date of such payment and
delivery with respect to the Offered Securities are herein referred to as the
"Closing Date".
3. Covenants of the Company.
The Company covenants and agrees with each of the Underwriters
that:
(a) As soon as practicable after the acceptance of a
proposal to purchase the Offered Securities, the Company will file the
Supplement with the Commission pursuant to Rule 424(b) of the Securities Act.
The Company will not file at any time prior to the Closing Date any other
amendment to the Registration Statement or any supplement to the Prospectus, or
any other amended prospectus or any document that upon the filing thereof would
become an Incorporated Document of which Sidley & Austin ("Underwriters'
Counsel") shall not previously have been advised and furnished with a copy or to
which the Managers shall reasonably object in writing.
(b) The Company will advise the Managers immediately, and
confirm such advice promptly in writing, of the effectiveness of any amendment
to the Registration Statement.
(c) The Company will notify promptly each of the
Underwriters in the event of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or in the event of
the institution or notice of intended institution by the Commission of any
action or proceeding for that purpose. In the event the Commission shall enter a
stop order suspending the effectiveness of the Registration Statement, whether
before or after the Offered Securities have been delivered to the Managers or
the Underwriters and paid for as provided in the Underwriting Agreement, the
Company will make every reasonable effort to obtain, as promptly as possible,
the entry by the Commission of an order setting aside any such stop order or
otherwise reinstating the effectiveness of the Registration Statement.
(d) The Company will deliver to the Managers, on or before
the Closing Date, one signed copy of the registration statement as originally
filed and of each amendment thereto (in each case including all exhibits
thereto, other than exhibits incorporated by reference), and will also deliver
to the Managers, for distribution to the Underwriters, a sufficient number of
conformed copies of each of the foregoing (but without exhibits) so that one
copy of each may be distributed to each of the Underwriters. The Company will
also send to the Managers or to the Underwriters, without expense to them, as
soon as practicable after the date hereof, and thereafter from time to time
during a period of nine months after such date, as many copies of any
preliminary prospectus and the Prospectus as the Managers may reasonably request
for the purposes contemplated by the Securities Act.
(e) The Company will use its best efforts, when and as
requested by the Managers, to furnish information and otherwise cooperate in
qualifying or registering the Offered Securities for offer
3
<PAGE>
and sale under the securities or "blue sky" laws of such jurisdictions as the
Managers may designate, but the Company shall not thereby be obligated to
qualify as a foreign corporation or subject itself to taxation in, or to execute
or file any general consent to service of process under the laws of, any
jurisdiction. The Company will pay the Underwriters' Counsel all reasonable fees
(including counsel fees) and expenses incurred by them in connection with such
qualification or registration of the Offered Securities for offer or sale, not
exceeding, however, $5,000 in the aggregate.
(f) If the Underwriting Agreement shall be terminated
pursuant to the provisions of Section 4, the Company will pay the reasonable
fees and disbursements of Underwriters' Counsel in connection with the
contemplated issue and sale of the Offered Securities, unless such termination
is caused by any default by the Managers or any of the Underwriters in the
performance of their respective obligations hereunder. Except as provided in
this subsection (f), the Underwriters shall pay the fees of Underwriters'
Counsel and reimburse such counsel for their reasonable expenses paid or
incurred in connection with the issue and sale of the Offered Securities. The
Company shall not in any event be liable to any of the Underwriters for damages
on account of loss of anticipated profits.
(g) The Company will, so long as any of the Offered
Securities shall be outstanding, deliver to the Managers upon their request, and
to each other Underwriter who may so request, copies of all public reports and
all reports and financial statements furnished by the Company to the Commission
pursuant to the Exchange Act or any rule or regulation of the Commission
thereunder.
(h) During a period of nine months after the date of the
Prospectus, if any event relating to or affecting the Company or its
subsidiaries, if any, or of which the Company shall be advised in writing by the
Managers, shall occur as a result of which it is necessary, in the opinion of
counsel for the Company, to supplement or amend the Prospectus in order to make
the Prospectus not misleading in the light of the circumstances existing at the
time it is delivered to a purchaser of Offered Securities from any of the
Underwriters, the Company will forthwith at its expense prepare and furnish to
the Managers or to the Underwriters a reasonable number of copies of a
supplement or supplements or an amendment or amendments to the Prospectus (in
form satisfactory to Underwriters' Counsel) which will supplement or amend the
Prospectus so that, as so supplemented or amended, it will not include any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in
the light of the circumstances existing at the time the Prospectus is delivered
to such a purchaser, not misleading. In case any of the Underwriters is required
to deliver a prospectus descriptive of the Offered Securities after the
expiration of nine months after the date of the Prospectus, the Company, upon
the request of the Managers, will furnish to the Managers, at the expense of
such Underwriter, a reasonable quantity of amendments or supplements to the
Prospectus complying with Section 10 of the Securities Act. For the purpose of
this subsection (h), the Company will furnish such information with respect to
itself and its subsidiaries, if any, as the Managers may from time to time
reasonably request, and during said nine-month period, the Company will prepare
and continue to file with the Commission all documents required to be filed
under the Exchange Act.
(i) The Company will make generally available to its
security holders, as soon as practicable, an earnings statement (which need not
be audited) covering a period of at least twelve months beginning not earlier
than the date of the Prospectus, which earnings statement shall satisfy the
requirements of Section 11(a) of the Securities Act.
4. Conditions of Underwriters' Obligations.
The obligations of the Underwriters to purchase and pay for the
Offered Securities shall be subject to the performance by the Company of its
obligations to be performed under the Underwriting Agreement at or prior to the
Closing Date, to the continued accuracy in all material respects of the
representations and warranties of the Company contained in the Underwriting
Agreement, and to the following conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing and in accordance with Section 1(a) of
4
<PAGE>
this Agreement; no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the Securities Act, or proceedings
therefor instituted or threatened by the Commission, on or prior to the Closing
Date.
(b) At or prior to the Closing Date, the Underwriters shall
have received from Underwriters' Counsel an opinion (subject to the reservation
that they have relied upon the opinion of Vinson & Elkins L.L.P., Dallas, Texas,
counsel for the Company, as to all matters governed by Texas law), to the effect
that:
(i) the Company has been duly incorporated and is
a validly existing corporation under the laws of the State of
Texas;
(ii) the Indenture has been duly and validly
authorized by the necessary corporate action by the Company, has
been duly and validly executed and delivered by the Company, and
is a valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, moratorium
or other similar laws relating to or affecting the enforcement of
creditors' rights generally, and to the effects of general
principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law);
(iii) the issue and sale of the Offered Securities
by the Company in accordance with the terms of the Underwriting
Agreement have been duly and validly authorized by the Company.
The Offered Securities, when duly executed, authenticated and
delivered to and paid for by the Managers or the Underwriters in
accordance with the terms of the Underwriting Agreement, will be
valid and binding obligations of the Company, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, moratorium
or other similar laws relating to or affecting the enforcement of
creditors' rights generally, and to the effects of general
principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law);
(iv) the Offered Securities and the Indenture
conform as to legal matters, in all material respects, with the
statements concerning them made in the Prospectus under the
caption "Description of the Senior Notes" and in the Prospectus
Supplement under the caption "Supplemental Description of the
Senior Notes" and such statements accurately set forth, in all
material respects, the matters respecting the Offered Securities
and the Indenture which are required to be set forth in the
Prospectus, as supplemented by the Prospectus Supplement, by the
Securities Act and the Trust Indenture Act and the rules and
regulations under said Acts (other than the accounting provisions
thereof, with respect to the requirements of which such counsel
need express no opinion or belief); and the Indenture has been
qualified under the Trust Indenture Act;
(v) the order of the Commission referred to in
subsection (b) of Section 1 of the Underwriting Agreement has been
duly entered and, to the knowledge of said counsel, is in full
force and effect. Except for the order of the Commission entered
with respect to the Registration Statement as contemplated in
paragraph (vii) below, no further approval, authorization,
consent, certificate or order of any Federal commission or
regulatory authority is necessary with respect to the execution
and delivery of the Indenture or the issue and sale of the Offered
Securities by the Company as contemplated in the Underwriting
Agreement;
(vi) the Registration Statement on Form S-3 has
become effective under the Securities Act, and, to the best of the
knowledge of said counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for such purpose have been instituted or are pending
or threatened under the Securities Act;
5
<PAGE>
(vii) the Registration Statement, the Prospectus
and the Prospectus Supplement, in each case excluding the
Incorporated Documents (other than financial statements, financial
data, statistical data and supporting schedules included or
incorporated by reference therein, as to which said counsel need
express no opinion or belief) as of their respective effective or
issue dates complied as to form, in all material respects, with
the requirements of the Securities Act (or, where appropriate, the
Exchange Act) and the rules and regulations of the Commission
thereunder; and
(viii) the Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
Such counsel shall also state that while, except as otherwise
required or stated in said opinion, said counsel have not independently checked
the accuracy or completeness of, or otherwise verified, and accordingly, are not
passing upon, and do not assume any responsibility for and have not
independently verified the accuracy, completeness or fairness of the statements
contained in the Registration Statement, the Prospectus or the Prospectus
Supplement, and relying as to materiality, to a large extent, upon the judgment
of officers and representatives of the Company, nothing has come to the
attention of said counsel which would lead said counsel to believe that the
Registration Statement relating to the Offered Securities or any amendment
thereto (other than financial statements, financial data and supporting
schedules included or incorporated by reference therein, as to which said
counsel need express no opinion or belief), at the time it became effective
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that (with the foregoing exception) the Prospectus, as
supplemented by the Prospectus Supplement, as of the date of such opinion
includes any untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading.
(c) At or prior to the Closing Date, the Underwriters shall
have received from Milbank, Tweed, Hadley & McCloy, counsel for the Company, an
opinion (subject to the same reservation as that expressed in subsection (b) of
this Section 4), in form and substance satisfactory to Underwriters' Counsel, to
the same effect, in general, with respect to all matters enumerated in
subsection (b) of this Section 4.
(d) At or prior to the Closing Date, the Underwriters shall
have received from Vinson & Elkins L.L.P., special Texas counsel for the
Company, an opinion, in form and substance satisfactory to Underwriters'
Counsel, to the effect that:
(i) the Company is a corporation, duly
incorporated and validly existing under the laws of the State of
Texas;
(ii) the Company is a public utility (as defined
in the Public Utility Regulatory Act ("PURA") of the State of
Texas), duly authorized by its Restated Articles of Incorporation,
as amended, and filed with the Secretary of State of the State of
Texas, through the date of such opinion, to conduct the business
of generating and supplying gas, electric light and motor power to
the public; the Company is authorized under the laws of the State
of Texas to operate as an electric utility (as defined in PURA) in
the areas of the State of Texas in which it currently does so,
except where the failure to be so authorized could not reasonably
be expected to result in a material adverse change in the
financial condition, results of operations or business of the
Company (a "Material Adverse Effect");
(iii) the Company has valid and subsisting municipal
franchises, licenses or permits authorizing it to operate as an
electric utility in all of the municipalities listed on an exhibit
to such opinion (which municipalities the Company has certified to
such counsel are all the municipalities served by it in which the
Company derives a material amount of electric operating revenues)
wherein such a franchise, license or permit is required;
6
<PAGE>
(iv) except as set forth in the Prospectus, there
is no litigation or other legal proceedings pending to which the
Company is a party or to which property of the Company is subject
that could reasonably be expected to result in a Material Adverse
Effect and, to the best of such counsel's knowledge, no such
litigation or proceedings have been threatened;
(v) the Underwriting Agreement has been duly
authorized, executed and delivered by the Company;
(vi) the Indenture has been duly authorized,
executed and delivered by the Company, and constitutes a valid and
binding obligation of the Company enforceable against the Company
in accordance with its terms;
(vii) the issuance and sale of the Offered
Securities by the Company in accordance with the terms of the
Underwriting Agreement have been duly authorized by the Company;
the Offered Securities, when duly executed, authenticated and
delivered to the Underwriters in the manner set forth in the
Underwriting Agreement, against payment to the Company of the
agreed consideration therefor, will be valid and binding
obligations of the Company, entitled to the benefits of the
Indenture;
(viii) no approval, authorization, consent,
certificate or order of any commission or regulatory authority of
the State of Texas (other than in connection with the "blue sky"
or securities laws of regulations of the State of Texas, about
which such counsel need express no opinion) is necessary with
respect to the execution and delivery of the Indenture or the
issuance and sale of the Offered Securities by the Company to the
Underwriters as contemplated by the Underwriting Agreement;
Such counsel shall also state that, in their role as special Texas
counsel to the Company in connection with the offering of the Offered Securities
such counsel reviewed the Registration Statements and the Prospectus, (however,
such counsel did not participate in their preparation) and although such counsel
has not independently verified, and does not warrant or pass upon the accuracy
or completeness of the statements contained in the Registration Statements or
the Prospectus (relying, with respect to materiality, to the extent such counsel
deems such reliance proper, upon the opinions of officers and other
representatives of the Company) no facts have come to such counsel's attention
as a result of the foregoing review which lead such counsel to believe that
either (i) the Registration Statements at the respective times they became
effective contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or (ii) the Prospectus as of its date or as of the
Closing Date contained any untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
Notwithstanding the foregoing, such counsel need express no belief as to (a) the
financial statements and schedules and other financial data included in the
Registration Statements or the Prospectus or any amendment or supplement
thereto, (b) the Statement of Eligibility of the Trustee under the Trust
Indenture Act, on Form T-1 or (c) regulatory and other legal matters not
governed by the laws of the State of Texas.
(e) At or prior to the Closing Date, the Underwriters shall
have received from Arthur Andersen L.L.P. a letter confirming that they are
independent public accountants with respect to the Company within the meaning of
the Securities Act and the applicable published rules and regulations thereunder
and that the answer to Item 10 of the Registration Statement is correct insofar
as it relates to them and stating in effect (1) that in their opinion the
financial statements and schedules of the Company incorporated by reference in
the Registration Statement and Prospectus and which are stated therein to have
been certified or audited by them, comply as to form, in all material respects,
with the applicable accounting requirements of the Securities Act and the
published rules and regulations thereunder; (2) that nothing has come to their
attention which causes them to believe (A) that any unaudited dollar amounts or
ratios which may appear in the Registration Statement and the Prospectus under
the caption "The Company" were not determined on a basis substantially
consistent with that of the corresponding
7
<PAGE>
amounts in the audited financial statements incorporated by reference in the
Registration Statement and the Prospectus; (B) that any unaudited condensed
financial statements of the Company included in any of the Company's Form 10-Q
Quarterly Reports, which may be incorporated by reference in the Registration
Statement and the Prospectus, do not comply as to form in all material respects
with the applicable accounting requirements of the Exchange Act and the
applicable published rules and regulations thereunder, or that material
modifications should be made to such unaudited financial statements for them to
be in conformity with generally accepted accounting principles; or (C) that,
except in all instances as set forth or contemplated in the Registration
Statement or the Prospectus, (i) at the date of the latest available unaudited
financial statements of the Company read by them and at a subsequent date, not
more than five business days before the Closing Date, there has been any change
in the capital stock or long-term debt of the Company, as compared with amounts
shown in the latest balance sheet of the Company included or incorporated by
reference in the Registration Statement and the Prospectus, except for normally
scheduled reductions in the Company's long-term debt, and (ii) for the period
from the date of the latest financial statements included or incorporated by
reference in the Prospectus to the date of the latest available interim
financial statements read by them and to the aforementioned date not more than
five business days prior to the Closing Date there was any decrease, as compared
with the corresponding period in the preceding twelve month period, in the
Company's operating revenues, operating income or net income or (iii) there was
any decrease in the ratio of earnings to fixed charges for the twelve months
ended the date of such latest available interim financial statements as compared
to such ratio for the twelve months ended the date of the latest financial
statements included or incorporated by reference in the Prospectus, except as
set forth in such letter, in which latter case the letter shall be accompanied
by an explanation by the Company as to the significance thereof unless such
explanation is not deemed necessary by the Managers; and (3) that they have
compared certain dollar amounts designated by the Company and disclosed in the
Registration Statement and Prospectus with such dollar amounts contained in the
general accounting records of the Company or derived directly from such records
by analysis or computation, and have found such dollar amounts to be in
agreement therewith, except as otherwise specified in such letter in which
latter case the letter shall be accompanied by an explanation by the Company as
to the significance thereof unless such explanation is not deemed necessary by
the Managers.
The form of letter shall reflect the inclusion of any subsequently
dated financial information, the incorporation by reference of any subsequently
filed Annual Report on Form 10-K or Quarterly Report on Form 10-Q and/or the
inclusion in the Prospectus of any financial information.
Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, there shall not have
been any change or decrease specified in the letter required by this subsection
(e) which is, in the judgment of the Managers, so material and adverse as to
make it impractical or inadvisable to proceed with the offering or the delivery
of the Offered Securities as contemplated by the Registration Statement and the
Prospectus.
(f) At the Closing Date the Managers shall have received a
certificate, dated as of the Closing Date, signed by the President or a Vice
President and the Treasurer or the Secretary of the Company, to the effect that
(A) to the best of the knowledge of the signers, no stop order suspending the
effectiveness of the Registration Statement has been issued under the Securities
Act and no proceedings therefor have been instituted or threatened by the
Commission, (B) the order of the Commission referred to in subsection (b) of
Section 1 of the Underwriting Agreement is, to the best of the knowledge of the
signers, in full force and effect, and (C) since the respective dates as of
which information is given in the Registration Statement or Prospectus, there
has been no (x) material adverse change in the condition, financial or
otherwise, or in the earnings of the Company or (y) adverse development
concerning the Company's business or assets which would result in a material
adverse change in its prospective financial condition or results of operations,
except such changes as are set forth or contemplated in the Registration
Statement or the Prospectus (including financial statements and notes thereto
contained in the Incorporated Documents).
8
<PAGE>
(g) All proceedings to be taken in connection with the
issuance and sale of the Offered Securities by the Company as contemplated in
the Underwriting Agreement shall be satisfactory in form and substance to
Underwriters' Counsel.
In case any of the conditions specified in this Section 4 shall
not have been fulfilled, the Underwriting Agreement may be terminated by the
Managers with the consent of Underwriters who have agreed to purchase in the
aggregate more than fifty percent of the total principal amount of the Offered
Securities upon delivering written notice thereof to the Company. Any such
termination shall be without liability of any party to any other party except as
otherwise provided in subsection (f) of Section 3 of the Underwriting Agreement.
5. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
of the Underwriters and each person, if any, who controls any of the
Underwriters within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act, from and against any and all losses, claims, damages or
liabilities, joint or several, to which such Underwriter or such controlling
person may become subject under the Securities Act, the Exchange Act or the
common law or otherwise, and to reimburse each such Underwriter or such
controlling person for any reasonable legal or other expenses (including, to the
extent hereinafter provided, reasonable counsel fees) incurred by it or them in
connection with defending against any such losses, claims, damages or
liabilities, arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in (1) the Registration Statement or any
amendment to the Registration Statement or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, or (2) the Prospectus or the Prospectus
as amended or supplemented, if such losses, claims, damages or liabilities arise
out of or are based upon the use of the Prospectus or the Prospectus as amended
or supplemented after the Company shall have amended or supplemented the
Prospectus, or any omission or alleged omission to state therein a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the indemnity agreement contained in this subsection (a) shall not apply to
any such losses, claims, damages or liabilities arising out of or based upon (i)
any such untrue statement or alleged untrue statement, or any such omission or
alleged omission, if such statement or omission was made in reliance upon and in
conformity with information furnished in writing to the Company by any of the
Underwriters for use in the Registration Statement or the Prospectus or any
amendment or supplement to either thereof, (ii) any statement made in the Form
T-1 filed by the Trustee as an exhibit to the Registration Statement or (iii)
the failure of any Underwriter to deliver (either directly or through the
Managers) a copy of the Prospectus (excluding the Incorporated Documents), or of
the Prospectus as amended or supplemented after it shall have been amended or
supplemented by the Company (excluding the Incorporated Documents), to any
person to whom a copy of any preliminary prospectus shall have been delivered by
or on behalf of such Underwriter to whom any Offered Securities shall have been
sold by such Underwriter, as such delivery may be required by the Securities Act
and the rules and regulations of the Commission thereunder.
(b) Each of the Underwriters agrees to indemnify and hold
harmless the Company, each of its officers who signs the Registration Statement,
each of its directors, each person who controls the Company within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act, each
other Underwriter and each person, if any, who so controls any such other
Underwriter, from and against any and all losses, claims, damages or
liabilities, joint or several, to which any one or more of them may become
subject under the Securities Act, the Exchange Act or the common law or
otherwise, and to reimburse each of them for any reasonable legal or other
expenses (including, to the extent hereinafter provided, reasonable counsel
fees) incurred by them in connection with defending against any such losses,
claims, damages or liabilities of the character above specified arising out of
or based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or the Prospectus or any amendment
to the Registration Statement or amendment or supplement to the Prospectus or
upon any omission or alleged omission to state in any thereof a material fact
required to be stated therein or necessary to make the statements therein not
misleading if such statement or omission was made in reliance upon and in
conformity with information furnished in writing
9
<PAGE>
to the Company by such Underwriter for use in the Registration Statement or the
Prospectus or any amendment or supplement to either thereof, or (ii) the failure
of such Underwriter to deliver (either directly or through the Managers) a copy
of the Prospectus (excluding the Incorporated Documents), or of the Prospectus
as amended or supplemented after it shall have been amended or supplemented by
the Company (excluding the Incorporated Documents), to any person to whom a copy
of any preliminary prospectus shall have been delivered by or on behalf of such
Underwriter and to whom any Offered Securities shall have been sold by such
Underwriter, as such delivery may be required by the Securities Act and the
rules and regulations of the Commission thereunder.
(c) Promptly after receipt by a party indemnified under this
Section 5 (an "indemnified party") of notice of the commencement of any action,
such indemnified party will, if a claim in respect thereof is to be made against
a party granting an indemnity under this Section 5 (the "indemnifying party"),
notify the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section 5. In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof (thereby conceding that the action in question is subject to
indemnification by the indemnifying party hereunder), with counsel satisfactory
to such indemnified party; provided, however, that if the defendants in any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert and
conduct such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of its election so to
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party
under this Section 5 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel, approved by the
Managers in the case of subsection (a), representing the indemnified parties
under subsection (a) who are parties to such action), (ii) the indemnifying
party shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is applicable, such
liability shall be only in respect of the counsel referred to in such clause (i)
or (iii).
(d) If the indemnification provided for in this Section 5
shall be unenforceable under applicable law by an indemnified party, the
indemnifying party agrees to contribute to such indemnified party with respect
to any and all losses, claims, damages and liabilities for which such
indemnification provided for in this Section 5 shall be unenforceable, in such
proportion as shall be appropriate to reflect the relative fault of the
indemnifying party on the one hand and the indemnified party on the other in
connection with the statements or omissions which have resulted in such losses,
claims, damages and liabilities, as well as any other relevant equitable
considerations; provided, however, that no indemnified party guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from the indemnifying party if
the indemnifying party is not guilty of such fraudulent misrepresentation.
Relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
indemnifying party or the indemnified party and each such party's relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Company and each of the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
subparagraph were to be determined solely by pro rata
10
<PAGE>
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above.
(e) The indemnity and contribution agreements contained in
this Section 5 and the representations and warranties of the Company in the
Underwriting Agreement shall remain operative and in full force regardless of
(i) any termination of the Underwriting Agreement, (ii) any investigation made
by or on behalf of any Underwriter or any person controlling any Underwriter or
by or on behalf of the Company, its directors or officers or any person
controlling the Company and (iii) delivery of and payment for any of the Offered
Securities.
6. Termination.
(a) If the Offered Securities are being purchased for the
purpose of resale, the Underwriting Agreement may be terminated, at any time
prior to the Closing Date, by the Managers with the consent of Underwriters who
have agreed to purchase in the aggregate more than fifty percent of the total
principal amount of the Offered Securities, if (a) there shall have occurred any
general suspension or material limitation on trading in securities on the New
York Stock Exchange or by the Commission or by any federal or state agency or by
the decision of any court, any limitation on prices for such trading or any
restrictions on the distribution of securities, (b) trading in any securities of
the Company shall have been suspended by the Commission or a national securities
exchange, (c) a general banking moratorium on commercial banking activities in
New York shall have been declared either by federal or New York State
authorities, (d) the rating assigned by any nationally recognized securities
rating agency to any securities of the Company as of the date of the
Underwriting Agreement shall have been lowered since that date, or (e) there
shall have occurred any outbreak or material escalation of hostilities or other
calamity or crisis, the effect of which on the financial markets of the United
States is such as to make it, in the judgment of the Managers, impracticable to
market the Offered Securities.
(b) Any termination of the Underwriting Agreement pursuant
to this Section 6 shall be without liability of any party to any other party
except as otherwise provided in subsection (f) of Section 3.
7. Default by an Underwriter.
If any one or more Underwriters shall fail to purchase and pay for
any of the Offered Securities agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall constitute a default
in the performance of its or their obligations under the Underwriting Agreement,
the remaining Underwriters shall be obligated severally to take up and pay for
(in the respective proportions which the amount of Offered Securities set forth
opposite their names in Schedule I to the Underwriting Agreement bears to the
aggregate amount of Offered Securities set opposite the names of all the
remaining Underwriters) the Offered Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase; provided, however, that in the
event that the aggregate amount of Offered Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase (less such aggregate
amount of Offered Securities as are purchased by substituted underwriters
selected by the Managers with the approval of the Company or selected by the
Company with the approval of the Managers) shall exceed 10% of the aggregate
amount of Offered Securities set forth in such Schedule I, the remaining
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Offered Securities, and if such nondefaulting
Underwriters do not purchase all the Offered Securities, the Underwriting
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company (except as otherwise provided in subsection (f) of Section 3). In
the event of a default by an Underwriter as set forth in this Section 7, the
Closing Date shall be postponed for such period, not exceeding seven calendar
days, as the Company and the Managers shall determine in order that the required
changes in the Registration Statement and the Prospectus or in any other
documents or arrangements may be effected. Nothing contained in the Underwriting
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default thereunder.
11
<PAGE>
8. Notice.
All communications under the Underwriting Agreement will be
effective only on receipt, and, if sent to the Managers, will be mailed,
delivered or telegraphed and confirmed to them, at the address, or telephoned to
them at the number, specified in the Underwriting Agreement and to Sidley &
Austin, One First National Plaza, Chicago, Illinois 60603, attention: Wilbur C.
Delp, Jr.; or, if sent to the Company, will be mailed, delivered or telegraphed
and confirmed to it in care of Central and South West Corporation, 1616 Woodall
Rodgers Freeway, P.O. Box 660164, Dallas, Texas 75202, attention of Stephen D.
Wise, in each case with written confirmation of such communication sent to
Milbank, Tweed, Hadley & McCloy, 1 Chase Manhattan Plaza, New York, New York
10005, attention: Robert B. Williams, Esq.
9. Successors.
The Underwriting Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 5 of the
Underwriting Agreement, and no other person will have any right or obligation
hereunder and no other person (including a purchaser, as a purchaser, from any
Underwriter of any of the Offered Securities) shall acquire or have any rights
under or by virtue of the Underwriting Agreement.
10. Governing Law.
The Underwriting Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
12
<PAGE>
EXHIBIT 4
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
CENTRAL POWER AND LIGHT COMPANY
and
THE BANK OF NEW YORK,
AS TRUSTEE
-------------------
INDENTURE
Dated as of [____________], 1998
-------------------
Senior Notes
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
Reconciliation and tie between the Trust Indenture Act of 1939 and
Indenture, dated as of [__________], 1998
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
----------- -----------------
<S> <C>
Section 310(a)(1).........................................................................609
(a)(2)...............................................................................609
(a)(3)...............................................................................Not Applicable
(a)(4)...............................................................................Not Applicable
(a)(5)...............................................................................609
(b)..................................................................................608, 610
(c) .................................................................................Not Applicable
Section 311(a)............................................................................613(a)
(b)..................................................................................613(b)
(b)(2)...............................................................................703(a)(3), 703(b)
(c)..................................................................................Not Applicable
Section 312(a)............................................................................701, 702(a)
(b)..................................................................................702(b)
(c)..................................................................................702(c)
Section 313(a)............................................................................703(a)
(b)..................................................................................703(b)
(c)..................................................................................703(a), 703(b)
(d)..................................................................................703(c)
Section 314(a)............................................................................704
(a)(4)...............................................................................1008
(b)..................................................................................Not Applicable
(c)(1)...............................................................................102
(c)(2)...............................................................................102
(c)(3)...............................................................................Not Applicable
(d)..................................................................................101
(e)..................................................................................102
(f)..................................................................................Not Applicable
Section 315(a)............................................................................601(a)
(b)..................................................................................602, 703(a)(8)
(c)..................................................................................601(b)
(d)..................................................................................601(c)
(d)(1)...............................................................................601(a)(1)
(d)(2)...............................................................................601(c)(2)
(d)(3)...............................................................................601(c)(3)
(e) .................................................................................514
Section 316(a)(1)(A)......................................................................512
(a)(1)(B)............................................................................502, 513
(a)(2)...............................................................................Not Applicable
(b)..................................................................................508
(c)..................................................................................104(e)
Section 317(a)(1).........................................................................503
(a)(2)...............................................................................504
(b)..................................................................................1003
Section 318(a)............................................................................107
</TABLE>
- ----------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
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<TABLE>
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RECITALS OF THE COMPANY..........................................................1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.............1
SECTION 101. Definitions.........................................................1
Act 1
Affiliate...............................................................2
Authenticating Agent....................................................2
Board of Directors......................................................2
Board Resolution........................................................2
Business Day............................................................2
Commission..............................................................2
Company.................................................................2
Company Order or Company Request........................................2
Corporate Trust Office..................................................2
corporation.............................................................2
default.................................................................2
Defaulted Interest......................................................2
Depositary..............................................................2
Discharged..............................................................3
Event of Default........................................................3
Exchange Act............................................................3
Global Security.........................................................3
Holder..................................................................3
Indebtedness............................................................3
Indenture...............................................................3
interest................................................................3
Interest Payment Date...................................................3
Lien....................................................................4
Maturity................................................................4
Net Tangible Assets.....................................................4
Officers' Certificate...................................................4
Opinion of Counsel......................................................4
Original Issue Discount Security........................................4
Outstanding.............................................................4
Paying Agent............................................................5
Periodic Offering.......................................................5
Person..................................................................5
Place of Payment........................................................5
Predecessor Security....................................................5
Redemption Date.........................................................5
Redemption Price........................................................5
Regular Record Date.....................................................5
Repayment Price.........................................................5
Responsible Officer.....................................................5
Security................................................................5
Security Register and Security Registrar................................6
Special Record Date.....................................................6
</TABLE>
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Stated Maturity.........................................................6
Subsidiary..............................................................6
Trustee.................................................................6
Trust Indenture Act.....................................................6
U.S. Government Obligations.............................................6
Vice President..........................................................6
SECTION 102. Compliance Certificates and Opinions................................6
SECTION 103. Form of Documents Delivered to Trustee..............................7
SECTION 104. Acts of Holders.....................................................7
SECTION 105. Notices, Etc., to Trustee and Company...............................9
SECTION 106. Notice to Holders; Waiver...........................................9
SECTION 107. Conflict with Trust Indenture Act...................................9
SECTION 108. Effect of Headings, Table of Contents, Etc.........................10
SECTION 109. Successors and Assigns.............................................10
SECTION 110. Separability Clause................................................10
SECTION 111. Benefits of Indenture..............................................10
SECTION 112. Governing Law......................................................10
SECTION 113. Legal Holidays.....................................................10
SECTION 114. No Recourse Against Others.........................................10
ARTICLE TWO SECURITY FORMS.....................................................11
SECTION 201. Forms Generally....................................................11
SECTION 202. Form of Face of Security...........................................11
SECTION 203. Form of Reverse of Security........................................13
SECTION 204. Form of Trustee's Certificate of Authentication....................16
ARTICLE THREE THE SECURITIES...................................................16
SECTION 301. Amount Unlimited; Issuable in Series...............................16
SECTION 302. Denominations......................................................18
SECTION 303. Execution, Authentication, Delivery and Dating.....................18
SECTION 304. Temporary Securities...............................................20
</TABLE>
ii
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SECTION 305. Registration, Registration of Transfer and Exchange................20
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities...................21
SECTION 307. Payment of Interest; Interest Rights Preserved.....................22
SECTION 308. Persons Deemed Owners..............................................23
SECTION 309. Cancellation.......................................................23
SECTION 310. Computation of Interest............................................23
SECTION 311. Global Securities..................................................23
SECTION 312. Periodic Offering of Securities....................................24
ARTICLE FOUR SATISFACTION AND DISCHARGE........................................25
SECTION 401. Satisfaction and Discharge of Indenture............................25
SECTION 402. Application of Trust Money.........................................26
SECTION 403. Satisfaction, Discharge and Defeasance of Securities of any
Series............................................................26
ARTICLE FIVE REMEDIES..........................................................28
SECTION 501. Events of Default..................................................28
SECTION 502. Acceleration of Maturity; Rescission and Annulment.................29
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee........................................................30
SECTION 504. Trustee May File Proofs of Claim...................................30
SECTION 505. Trustee May Enforce Claims Without Possession of Securities........31
SECTION 506. Application of Money Collected.....................................31
SECTION 507. Limitation on Suits................................................31
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest......................................................32
SECTION 509. Restoration of Rights and Remedies.................................32
SECTION 510. Rights and Remedies Cumulative.....................................32
SECTION 511. Delay or Omission Not Waiver.......................................32
SECTION 512. Control by Holders.................................................33
SECTION 513. Waiver of Past Defaults............................................33
</TABLE>
iii
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SECTION 514. Undertaking for Costs..............................................33
ARTICLE SIX THE TRUSTEE........................................................33
SECTION 601. Certain Duties and Responsibilities................................33
SECTION 602. Notice of Defaults.................................................34
SECTION 603. Certain Rights of Trustee..........................................35
SECTION 604. Not Responsible for Recitals or Issuance of Securities.............35
SECTION 605. May Hold Securities................................................36
SECTION 606. Money Held in Trust................................................36
SECTION 607. Compensation and Reimbursement.....................................36
SECTION 608. Conflicting Interests..............................................36
SECTION 609. Corporate Trustee Required; Eligibility............................36
SECTION 610. Resignation and Removal; Appointment of Successor Trustee..........37
SECTION 611. Acceptance of Appointment by Successor.............................38
SECTION 612. Merger, Conversion, Consolidation or Succession to Business........39
SECTION 613. Preferential Collection of Claims Against Company..................39
SECTION 614. Authenticating Agents..............................................42
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY.................43
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders..........43
SECTION 702. Preservation of Information; Communications to Holders.............43
SECTION 703. Reports by Trustee.................................................44
SECTION 704. Reports by Company.................................................45
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, SALE OR TRANSFER...............46
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms...............46
SECTION 802. Successor Corporation to be Substituted............................46
ARTICLE NINE SUPPLEMENTAL INDENTURES............................................46
SECTION 901. Supplemental Indentures without Consent of Holders.................46
</TABLE>
iv
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SECTION 902. Supplemental Indentures with Consent of Holders....................47
SECTION 903. Execution of Supplemental Indentures...............................48
SECTION 904. Effect of Supplemental Indentures..................................48
SECTION 905. Conformity with Trust Indenture Act................................48
SECTION 906. Reference in Securities to Supplemental Indentures.................48
ARTICLE TEN COVENANTS..........................................................49
SECTION 1001. Payment of Principal, Premium and Interest........................49
SECTION 1002. Maintenance of Office or Agency...................................49
SECTION 1003. Money for Securities Payments to Be Held in Trust.................49
SECTION 1004. Corporate Existence...............................................50
SECTION 1005. Maintenance of Properties.........................................50
SECTION 1006. Maintenance of Insurance..........................................51
SECTION 1007. Limitation on Liens...............................................51
SECTION 1008. Statement by Officers as to Default...............................53
SECTION 1009. Defeasance of Certain Obligations.................................53
SECTION 1010. Waiver of Certain Covenants.......................................54
SECTION 1011. Further Assurances................................................54
ARTICLE ELEVEN REDEMPTION OF SECURITIES.........................................55
SECTION 1101. Applicability of Article..........................................55
SECTION 1102. Election to Redeem; Notice to Trustee.............................55
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.................55
SECTION 1104. Notice of Redemption..............................................55
SECTION 1105. Deposit of Redemption Price.......................................56
SECTION 1106. Securities Payable on Redemption Date.............................56
SECTION 1107. Securities Redeemed in Part.......................................56
ARTICLE TWELVE SINKING FUNDS....................................................57
</TABLE>
v
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<S> <C>
SECTION 1201. Applicability of Article..........................................57
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.............57
SECTION 1203. Redemption of Securities for Sinking Fund.........................57
ARTICLE THIRTEEN MISCELLANEOUS..................................................58
SECTION 1301. Counterparts......................................................58
TESTIMONIUM.....................................................................59
SIGNATURE AND SEALS.............................................................59
ACKNOWLEDGEMENTS................................................................60
</TABLE>
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INDENTURE, dated as of [___________], 1998, between CENTRAL POWER
AND LIGHT COMPANY, a corporation duly organized and existing under the laws of
the State of Texas (the "Company"), having its principal office at 539
N. Carancahua Street, Corpus Christi, Texas 78401-25802 and THE BANK OF
NEW YORK, a New York banking corporation organized and existing under the laws
of the State of New York, as Trustee (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 certain of its
debentures, notes or other evidences of indebtedness (the "Securities"), 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.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as defined herein) thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of the
Securities or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(i) the terms defined in this Section have the meanings ascribed
to them in this Section and include the plural as well as the singular;
(ii) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings ascribed to them therein;
(iii) all accounting terms not otherwise defined herein have the
meanings ascribed to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the date of
such computation;
(iv) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision; and
(v) certain terms used in Section 613 have the meanings ascribed
to them in such Section.
The following terms have the following meanings:
"Act", when used with respect to any Holder, has the meaning
specified in Section 104 hereof.
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"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 authorized to
authenticate and deliver Securities on behalf of the Trustee pursuant to Section
614 hereof.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that Board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment,
means each day which is not a Saturday, a Sunday or a day on which banking
institutions in that Place of Payment are authorized or obligated by law to
remain closed.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the 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 corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Order" or "Company Request" means, respectively, a
written order or request signed in the name of the Company by its Chief
Executive Officer, President, Vice President or a General Manager, and by its
Treasurer, an Assistant Treasurer, Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee
in New York, New York, at which at any particular time its corporate trust
business is administered, which at the date hereof is 101 Barclay Street, New
York, NY 10286, Attention: Corporate Trust Trustee.
"corporation" means a corporation, association, company,
joint-stock company, limited liability company or business trust.
"default" for purposes of Section 601 of this Indenture means an
"Event of Default" as specified in Section 501 hereof, and for purposes of
Section 310(b) of the Trust Indenture Act, "default" means an "Event of Default"
as specified in Section 501 hereof but exclusive of any period of grace or
requirement of notice.
"Defaulted Interest" has the meaning specified in Section 307
hereof.
"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, the Person designated as Depositary by the Company pursuant to
Section 301 hereof, which must be a clearing agency registered under the
Exchange Act, and, if so provided pursuant to Section 301 hereof with respect to
the Securities of a series, any successor to such Person. If at any time there
is more than one such Person, "Depositary" shall mean, with respect to any
series of Securities, the qualifying entity which has been appointed with
respect to the Securities of that series.
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"Discharged" means, with respect to the Securities of any series,
the discharge of the entire Indebtedness represented by, and obligations of the
Company under, the Securities of such series and in the satisfaction of all the
obligations of the Company under this Indenture relating to the Securities of
such series, except (A) the rights of Holders of the Securities of such series
to receive, from the trust fund described in Section 403 hereof, payment of the
principal of and interest and premium, if any, on the Securities of such series
when such payments are due, (B) the Company's obligations with respect to the
Securities of such series with respect to registration, transfer, exchange and
maintenance of a Place of Payment and (C) the rights, powers, trusts, duties,
protections and immunities of the Trustee under this Indenture.
"Event of Default" has the meaning specified in Section 501
hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Global Security" means a Security 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" means a Person in whose name a Security is registered in
the Security Register.
"Indebtedness" means, with respect to any Person (without
duplication), (a) any liability of such Person (1) for borrowed money or under
any reimbursement obligation relating to a letter of credit, financial bond or
similar instrument or agreement, (2) evidenced by a bond, note, debenture or
similar instrument or agreement (including a purchase money obligation) given in
connection with the acquisition of any business, properties or assets of any
kind (other than a trade payable or a current liability arising in the ordinary
course of business or a performance bond or similar obligation), (3) for the
payment of money relating to any obligations under any capital lease of real or
personal property or (4) for purposes of Section 1007, under any agreement or
instrument in respect of an interest rate or currency swap, exchange or hedging
transaction or other financial derivatives transaction; (b) any liability of
others described in the preceding clause (a) that the Person has guaranteed or
that is otherwise its legal liability; and (c) any amendment, supplement,
modification, deferral, renewal, extension or refunding of any liability of the
types referred to in clauses (a) and (b) above. For the purpose of determining
any particular amount of Indebtedness under this definition, guarantees of (or
obligations with respect to letters of credit or financial bonds supporting)
Indebtedness otherwise included in the determination of such amount shall not be
included.
"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 hereof
and includes the terms of particular series of Securities established as
contemplated by Section 301 hereof; provided, however, that if at any time more
than one Person is acting as Trustee under this instrument due to the
appointment of one or more separate Trustees for any one or more separate series
of Securities pursuant to Section 610, "Indenture" shall mean, with respect to
such series of Securities for which any such Person is Trustee, 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 hereof and shall include the terms of particular series of
Securities for which such Person is Trustee established as contemplated by
Section 301, exclusive, however, of any provisions or terms which relate solely
to other series of Securities for which such Person is not Trustee, regardless
of when such provisions or terms were adopted, and exclusive of any provisions
or terms adopted by means of one or more indentures supplemental hereto executed
and delivered after such Person had become such Trustee but to which such
Person, as such Trustee, was not a party.
"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.
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<PAGE>
"Lien" means, with respect to any property or assets, any mortgage
or deed of trust, pledge, hypothecation, assignment, security interest, lien,
encumbrance, or other security arrangement of any kind or nature whatsoever on
or with respect to such property or assets (including any conditional sale or
other title retention agreement having substantially the same economic effect as
any of the foregoing).
"Maturity", when used with respect to any Security, means the date
on which the principal or an installment of principal of such Security becomes
due and payable as therein or herein provided, whether at the Stated Maturity or
by declaration of acceleration, call for redemption or otherwise.
"Net Tangible Assets" means the total of all assets (including
revaluations thereof as a result of commercial appraisals, price level
restatement or otherwise) appearing on a balance sheet of the Company and its
Subsidiaries, net of applicable reserves and deductions, but excluding goodwill,
trade names, trademarks, patents, unamortized debt discount and all other like
intangible assets (which term shall not be construed to include such
revaluations), less the aggregate of the current liabilities of the Company and
its Subsidiaries appearing on such balance sheet.
"Officers' Certificate" means a certificate signed by the
Company's Chief Executive Officer, President, Vice President, or General Manager
and by its Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
be an employee of or regular counsel for the Company, or may be other counsel
reasonably acceptable to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502 hereof.
"Outstanding", when used with respect to Securities of any series,
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, or portions thereof, for whose payment or
redemption money or U.S. Governmental Obligations 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 acts as its own Paying Agent) for
the Holders of such Securities; provided that, if such Securities are
to be redeemed, notice of such redemption 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
hereof 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;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (a) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the Maturity thereof pursuant to Section 502 hereof, (b) if,
as of such date, the principal amount payable at the Stated Maturity of a
Security is not determinable, the principal amount of such Security which shall
be deemed to be Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (c) the
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principal amount of a Security denominated in one or more foreign currencies or
currency units which shall be deemed to be Outstanding shall be the U.S. dollar
equivalent, determined as of such date in the manner provided as contemplated by
Section 301, of the principal amount of such Security (or, in the case of a
Security described in clause (a) or (b) above, of the amount determined as
provided in such clause), and (d) 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, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned as described in (d) above which have been pledged in good
faith may be regarded as Outstanding if the pledgee certifies to 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.
"Periodic Offering" means an offering of Securities of a series
from time to time the specific terms of which Securities, including without
limitation the rate or rates of interest (or formula for determining the rate or
rates of interest), if any, thereon, the Stated Maturity or Maturities thereof
and the redemption provisions, if any, with respect thereto, are to be
determined by the Company or its agents upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"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, if any, on the Securities of that series are payable as
specified in or as contemplated by Section 301 hereof.
"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 hereof 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.
"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, exclusive of accrued and unpaid interest.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 301 hereof.
"Repayment Price", when used with respect to any Security to be
repaid at the option of the Holder, means the price specified in such Security
or pursuant to this Indenture at which it is to be repaid pursuant to such
Security.
"Responsible Officer", when used with respect to the Trustee,
means any Vice President or any trust officer of the Trustee, which in each case
is assigned to its Corporate Trust Department, and also means, with respect to a
particular corporate trust matter, any other trust officer to whom such matter
is referred because of his knowledge of and familiarity with the particular
subject.
"Security" has the meaning stated in the first recital of this
Indenture and more particularly means any Security authenticated and delivered
under this Indenture; provided, however, that
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if at any time there is more than one Person acting as Trustee under this
Indenture, "Security" with respect to the Indenture as to which such Person is
Trustee shall have the meaning stated in the first recital of this Indenture and
shall more particularly mean any Security 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 hereof.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307 hereof.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal or installment of
principal of such Security 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, "voting stock" means stock of
the class or classes having general voting power under ordinary circumstances to
elect at least a majority of the board of directors of a corporation
(irrespective of whether or not at the time stock of any other class or classes
shall have or might have voting power by reason of the happening of any
contingency).
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as provided
in Section 905 hereof.
"U.S. Government Obligations" means direct obligations of the
United States for the payment of which its full faith and credit is pledged, or
obligations of a person controlled or supervised by and acting as an agency or
instrumentality of the United States and the payment of which is unconditionally
guaranteed by the United States, and shall also include a depository receipt
issued by a bank or trust company as custodian with respect to any such U.S.
Government Obligation or a specific payment of interest on or principal of any
such U.S. Government Obligation held by such custodian for the account of a
holder of a depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of interest on
or principal of the U.S. Government Obligation evidenced by such depository
receipt.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president or assistant vice president, whether or not
designated by a number or a word or words added before or after the title "vice
president' or "assistant vice president".
SECTION 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee (a) 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 (b) 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.
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Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(ii) 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;
(iii) 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
(iv) 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 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.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601 hereof) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section 104.
Without limiting the generality of the foregoing, unless otherwise
established in or pursuant to a Board Resolution or set forth or determined in
an Officers' Certificate, or established in one or more indentures supplemental
hereto, pursuant to Section 301 hereof, a Holder, including a Depositary that is
a Holder of a Global Security, may make, give or take, by a proxy, or proxies,
duly appointed in
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writing, any request, demand, authorization, direction, notice, consent, waiver
or other action provided in this Indenture to be made, given or taken by
Holders, and a Depositary that is a Holder of a Global Security may provide its
proxy or proxies to the beneficial owners of interests in any such Global
Security through such Depositary's standing instructions and customary
practices.
(b) The fact and date of the execution by any Person of any such
instrument, writing or proxy may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument, writing or proxy acknowledged to him the execution thereof.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument, writing or proxy, or the authority of the Person executing the
same, may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(e) The Company may set any day as the record date for the purpose
of determining the Holders of Outstanding Securities of any series entitled to
make any request or demand, or give any authorization, direction, notice,
consent or waiver, or take any other action, provided or permitted by this
Indenture to be made, given or taken by Holders of Securities of such series.
With regard to any record date set pursuant to this paragraph, the
Holders of Outstanding Securities of the relevant series on such record date (or
their duly appointed agents), and only such Persons, shall be entitled to take
relevant action, whether or not such Holders remain Holders after such record
date. With regard to any action that may be taken hereunder only by Holders of a
requisite principal amount of Outstanding Securities of any series (or their
duly appointed agents) and for which a record date is set pursuant to this
paragraph, the Company may, at its option, set an expiration date after which no
such action purported to be taken by any Holder shall be effective hereunder
unless taken on or prior to such expiration date by Holders of the requisite
principal amount of Outstanding Securities of such series on such record date
(or their duly appointed agents). On or prior to any expiration date set
pursuant to this paragraph, the Company may, on one or more occasions at its
option, extend such expiration date to any later date. Nothing in this paragraph
shall prevent any Holder (or any duly appointed agent thereof) from taking, at
any time, any action contrary to or different from, any action previously taken,
or purported to have been taken, hereunder by such Holder, in which event the
Company may set a record date in respect thereof pursuant to this paragraph.
Notwithstanding the foregoing or the Trust Indenture Act, the Company shall not
set a record date for, and the provisions of this paragraph shall not apply with
respect to, any action to be taken by Holders pursuant to Section 501, 502 or
512 hereof.
Upon receipt by the Trustee of notice of any default described in
Section 501 hereof, any declaration of acceleration, or any rescission and
annulment of any such declaration, pursuant to Section 502 hereof or of any
direction in accordance with Section 512 hereof, a record date shall
automatically and without any other action by any Person be set for the purpose
of determining the Holders of Outstanding Securities of the series entitled to
join in such notice, declaration, or rescission and annulment, or direction, as
the case may be, which record date shall be the close of business on the day the
Trustee receives such notice, declaration, rescission and annulment or
direction, as the case may be. The Holders of Outstanding Securities of such
series on such record date (or their duly appointed agent), and only such
Persons, shall be entitled to join in such notice, declaration, rescission and
annulment, or direction, as the case may be, whether or not such Holders remain
Holders after such record date; provided that, unless such notice, declaration,
rescission and annulment, or direction, as the case may be, shall have become
effective by virtue of Holders of the requisite principal amount of Outstanding
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Securities of such series on such record date (or their duly appointed agents)
having joined therein on or prior to the 90th day after such record date, such
notice of default, declaration, or rescission and annulment or direction given
or made by the Holders, as the case may be, shall automatically and without any
action by any Person be canceled and of no further effect. Nothing in this
paragraph shall prevent a Holder (or a duly appointed agent thereof) from
giving, before or after the expiration of such 90-day period, a notice of
default, a declaration of acceleration, a rescission and annulment of a
declaration of acceleration or a direction in accordance with Section 512
hereof, contrary to or different from, or, after the expiration of such period,
identical to, a previously given notice, declaration, rescission and annulment,
or direction, as the case may be, that has been canceled pursuant to the proviso
to the preceding sentence, in which event a new record date in respect thereof
shall be set pursuant to this paragraph.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any
other address previously furnished in writing to the Trustee by the
Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at his address as it appears in the Security Register,
not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. 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 shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made at the direction of the Company in a
manner reasonably calculated, to the extent practicable under the circumstances,
to provide prompt notice and shall constitute a sufficient notification for
every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any
provision of the Trust Indenture Act or another provision which is required or
deemed to be included in this Indenture by any of the provisions of the Trust
Indenture Act, the provision or requirement of the Trust Indenture Act shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, such provision
of the Trust Indenture Act shall be deemed to apply to this Indenture as so
modified or excluded, as the case may be.
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<PAGE>
SECTION 108. Effect of Headings, Table of Contents, Etc.
The Article and Section headings herein, the Table of Contents and
the Reconciliation and tie between the Trust Indenture Act of 1939 and this
Indenture are for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
Stated Maturity or date of repayment at the option of a Holder 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) payment of interest, if
any, or principal (and premium, if any) need not be made on such date at such
Place of Payment, 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, Redemption Date, at the Stated Maturity or on the date of
repayment, provided that no interest shall accrue for the period from and after
such Interest Payment Date, Redemption Date, Stated Maturity or date of
repayment, as the case may be.
SECTION 114. No Recourse Against Others.
No recourse for the payment of the principal of or any premium or
interest on any Security or for any claim based thereon or otherwise in respect
thereof, and no recourse under or upon any obligation, covenant or agreement of
the Company, contained in this Indenture or in any supplemental indenture, or in
any Security, or because of the creation of any Indebtedness represented
thereby, shall be had against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or any successor
corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issuance of the Securities.
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<PAGE>
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the form
set forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution 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
officer or officers executing such Securities, as evidenced by the officer's or
officers' execution of the Securities. If the form of Securities of any series
is established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by an authorized officer of
the Company, and delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 303 hereof for the authentication and
delivery of such Securities.
The Trustee's certificates of authentication shall be in
substantially the form set forth in this Article.
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officer or officers executing such Securities, as evidenced
by the officer's or officers' execution of such Securities.
SECTION 202. Form of Face of Security.
[If the Security is to be a Global Security, insert - This
Security is a Global Security within the meaning of the Indenture hereinafter
referred to and is registered in the name of a Depositary or a nominee of a
Depositary. This Security is exchangeable for Securities registered in the name
of a Person other than the Depositary or its nominee only in the limited
circumstances described in the Indenture, and no transfer of this Security
(other than a transfer of this Security 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) may be registered except in limited
circumstances.
Unless this Global Security is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to the issuer or its agent for registration of transfer, exchange or payment,
and any definitive Security is issued in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much as the registered owner
hereof, Cede & Co., has an interest herein.]
CENTRAL POWER AND LIGHT COMPANY
[Title of the Security]
CUSIP No. $
--------------- ---------------
No.
---------------------
CENTRAL POWER AND LIGHT COMPANY, a corporation duly organized and
existing under the laws of the State of Texas (the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to
___________________________________, or registered assigns, the principal sum of
________________________ Dollars on _________________________________ [If the
Security is to bear interest prior to Maturity, insert - , and to pay interest
thereon from ________, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually on
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<PAGE>
____________ and ___________ in each year, commencing ________, at the rate per
annum provided in the title hereof, until the principal hereof is paid or made
available for payment [If applicable, insert - , and, subject to the terms of
the Indenture, at the rate per annum provided in the title hereof on any overdue
principal and premium and (to the extent that the payment of such interest shall
be legally enforceable) on any overdue installment of interest]. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which shall be the
_______ or ________ (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture.]
[If the Security is not to bear interest prior to Maturity,
insert-The principal of this Security shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon redemption or
at Stated Maturity and in such case the overdue principal of this Security shall
bear interest at the rate of [yield to maturity]% per annum (to the extent that
the payment of such interest shall be legally enforceable), which shall accrue
from the date of such default in payment to the date payment of such principal
has been made or duly provided for. Interest on any overdue principal shall be
payable on demand. Any such interest on any overdue principal that is not so
paid on demand shall bear interest at the rate of [yield to maturity]% per annum
(to the extent that the payment of such interest shall be legally enforceable),
which shall accrue from the date of such demand for payment to the date payment
of such interest has been made or duly provided for, and such interest shall
also be payable on demand.]
Payment of the principal of (and premium, if any) and interest[,
if any,] on this Security will be made at the office or agency of the Company
maintained for that purpose in ________, in [such coin or currency of the United
States of America as at the time of payment is legal tender for the payment of
public and private debts - or state other currency] [If this Security is not a
Global Security, insert - ; provided, however, that at the option of the Company
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register] [If this
Security is a Global Security, insert applicable manner of payment].
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
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<PAGE>
IN WITNESS WHEREOF, Central Power and Light Company has caused
this instrument to be duly executed under its corporate seal.
Dated:
[Seal] CENTRAL POWER AND LIGHT COMPANY
By
---------------------------------------
[Name]
[Title]
[If more than one
officer is to sign- By
---------------------------------------
[Name]
[Title]
SECTION 203. Form of Reverse of Security.
CENTRAL POWER AND LIGHT COMPANY
[Title of the Security]
This Security is one of a duly authorized issue of securities of
the Company (the "Securities"), issued and to be issued in one or more series
under an Indenture, dated as of __________ __, 1998, as amended and supplemented
from time to time (the "Indenture"), between the Company and The Bank of New
York, a New York banking corporation, as Trustee (the "Trustee", which term
includes any successor trustee under the Indenture), as to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the series designated on the face hereof [, limited in aggregate principal
amount to $________].
[If applicable, insert - This Security is not subject to
redemption prior to maturity.] [If applicable, insert - The Securities of this
series are subject to redemption upon not less than 30 or more than 60 days'
notice by mail to the Holders of such Securities at their addresses in the
Security Register for such series, [if applicable, insert - (1) on __________ in
any year commencing with the year ____ and ending with the year ____ through
operation of the sinking fund for this series at a Redemption Price equal to
100% of the principal amount, and (2)] at any time [on or after ___________,
19__], as a whole or in part, at the election of the Company, at the following
Redemption Prices (expressed as percentages of the principal amount):
If redeemed [on or before _____________, ___%, and if redeemed]
during the 12-month period beginning ___________, of the years indicated:
<TABLE>
<CAPTION>
Year Redemption Price Year Redemption Price
---- ---------------- ---- ----------------
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption [if applicable, insert - (whether
through operation of the sinking fund or otherwise)] with accrued and unpaid
interest to the Redemption Date, but interest installments whose Stated Maturity
is on or prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more
13
<PAGE>
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert - Notwithstanding the foregoing, the
Company may not, prior to _________, redeem any Securities of this series as
contemplated by [Clause (2) of] the preceding paragraph as a part of, or in
anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted financial practice) of less
than ___% per annum.]
[The sinking fund for this series provides for the redemption on
_________ in each year beginning with the year ____ and ending with the year
____ of [not less than] __________ [("mandatory sinking fund") and, at the
option of the Company, not more than __________] aggregate principal amount of
Securities of this series. [Securities of this series acquired or redeemed by
the Company otherwise than through [mandatory] sinking fund payments may be
credited against subsequent [mandatory] sinking fund payments otherwise required
to be made in the order in which they become due.]]
[In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.]
The Indenture contains provisions for defeasance of (a) the entire
Indebtedness of this Security and (b) certain restrictive covenants upon
compliance by the Company with certain conditions set forth therein.
[If the Security is not an Original Issue Discount Security,
insert - If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.]
[If the Security is an Original Issue Discount Security, insert -
If an Event of Default with respect to Securities of this series shall occur and
be continuing, an amount of principal of the Securities of this series (the
"Acceleration Amount") may be declared due and payable in the manner and with
the effect provided in the Indenture. In case of a declaration of acceleration
on or before ________, __ or on _____________ in any year, the Acceleration
Amount per ______ principal amount at Stated Maturity of the Securities shall be
equal to the amount set forth in respect of such date below:
<TABLE>
<CAPTION>
Acceleration Amount per
____________ principal amount
Date of declaration at Stated Maturity
------------------- ---------------------------------
<S> <C>
</TABLE>
and in case of a declaration of acceleration on any other date, the Acceleration
Amount shall be equal to the Acceleration Amount as of the next preceding date
set forth in the table above, plus accrued original issue discount (computed in
accordance with the method used for calculating the amount of original issue
discount that accrues for Federal income tax purposes) from such next preceding
date to the date of declaration at the yield to maturity. For the purpose of
this computation the yield to maturity is ___%. Upon payment (i) of the
Acceleration Amount so declared due and payable and (ii) of interest on any
overdue principal and overdue interest (in each case to the extent that the
payment of such interest shall be legally enforceable), all of the Company's
obligations in respect of the payment of the principal of and interest, if any,
on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the
14
<PAGE>
Trustee with the consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of all series to be affected (voting as a
class). The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest, if any, on this Security at the times, place and
rate, and in the coin or currency, herein prescribed.
[If this Security is a Global Security, insert - This Security
shall be exchangeable for Securities registered in the names of Persons other
than the Depositary with respect to such series or its nominee only as provided
in this paragraph. This Security shall be so exchangeable if (x) the Depositary
notifies the Company that it is unwilling or unable to continue as Depositary
for such series or at any time ceases to be a clearing agency registered as such
under the Exchange Act, (y) the Company executes and delivers to the Trustee an
Officers' Certificate providing that this Security shall be so exchangeable or
(z) there shall have occurred and be continuing an Event of Default with respect
to the Securities of such series. Securities so issued in exchange for this
Security shall be of the same series, having the same interest rate, if any, and
maturity and having the same terms as this Security, in authorized denominations
and in the aggregate having the same principal amount as this Security and
registered in such names as the Depositary for such Global Security shall
direct.]
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of [If this Security is a Global Security,
insert - a Security of the series of which this Security is a part] [If this
Security is not a Global Security, insert - this Security] is registrable in the
Security Register, upon surrender of this Security for registration of transfer
at the office or agency of the Company in any place where the principal of (and
premium, if any) and interest, if any, on this Security are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities of [If this Security is a Global Security insert -
the series of which this Security is a part] [If this Security is not a Global
Security, insert - this series] are issuable only in registered form without
coupons in denominations of $__________ and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
This Security shall be governed by and construed in accordance
with the laws of the State of New York.
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<PAGE>
All terms used in this Security which are defined in the Indenture
shall have the meanings ascribed to them in the Indenture.
SECTION 204. Form of Trustee's Certificate of Authentication.
The Trustee's Certificate of Authentication shall be in the
following form:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
The Bank of New York
---------------------------------
as Trustee
By
-------------------------------
Authorized Officer
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. All Securities of
each series under this Indenture shall in all respects be equally and ratably
entitled to the benefits hereof with respect to such series without preference,
priority or distinction on account of the actual time of the authentication and
delivery or Stated Maturity of the Securities of such series.
The Securities may be issued in one or more series. Each series of
Securities shall be created either by or pursuant to a Board Resolution or by or
pursuant to an indenture supplemental hereto. The Securities of each such series
may bear such date or dates, be payable at such place or places, have such
Stated Maturity or Maturities, bear interest at such rate or rates (which may be
fixed or floating), from such date or dates, payable in such installments and on
such dates and at such place or places to the Holders of Securities registered
as such on the related Regular Record Dates, or may bear no interest, and may be
redeemable or repayable at such Redemption Price or Prices or Repayment Price or
Prices, as the case may be, whether at the option of the Holder or otherwise,
and upon such terms, all as shall be provided for in or pursuant to the Board
Resolution or in or pursuant to the supplemental indenture creating that series.
There may also be established in or pursuant to a Board Resolution and, subject
to Section 303, set forth, or determined in the manner provided, in an Officers'
Certificate, or pursuant to a supplemental indenture prior to the issuance of
Securities of each such series, provision for:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Sections 304, 305, 306, 906, or
1107 hereof and except for any Securities which, pursuant to Section
303 hereof, are deemed never to have been authenticated and delivered
hereunder);
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<PAGE>
(3) the Person to whom any interest on a Security of the series
shall be payable, if other than the Person in whose name the Security
(or one or more Predecessor Securities) is registered at the close of
business on the regular Record Date for such interest;
(4) the date or dates on which the principal of the Securities of
the series is payable;
(5) the rate or rates at which the Securities of the series shall
bear interest, if any, 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 any
Interest Payment Date;
(6) the place or places, if any, in addition to or in place of the
office or agency of the Company in the City of New York, State of New
York or the principal office or place of business of the Trustee or its
successors in trust under the Indenture, which, at the date hereof, is
located at 101 Barclay Street, New York, NY 10286, Attention: Corporate
Trust Trustee, where the principal of (and premium, if any) and
interest, if any, on Securities of the series shall be payable and
where such Securities may be registered or transferred;
(7) 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;
(8) the obligation, if any, of the Company to redeem, repay 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, repaid or purchased, in whole or in part, pursuant to such
obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(10) 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 hereof;
(11) if other than such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public
or private debts, the coin or currency, including composite currencies,
in which payment of the principal of (and premium, if any) and
interest, if any, on the Securities of the series shall be payable;
(12) if the principal of (and premium, if any) or interest, if
any, on the Securities of the series are to be payable, at the election
of the Company or a Holder thereof, in a coin or currency other than
that in which the Securities are stated to be payable, the period or
periods within which, and the terms and conditions upon which, such
election may be made;
(13) if the amount of payments of principal of (and premium, if
any) or interest, if any, on the Securities of the series may be
determined with reference to an index based on a coin or currency other
than that in which the Securities are stated to be payable, the manner
in which such amounts shall be determined;
(14) any provisions permitted by this Indenture relating to Events
of Default or covenants of the Company with respect to such series of
Securities;
(15) if the Securities of the series shall be issued in whole or
in part in the form of one or more Global Securities, (i) whether
beneficial owners of interests in any such Global Security may exchange
such interests for Securities of such series of like tenor and of
authorized form and denomination and the circumstances under which any
such changes may occur, if other than in
17
<PAGE>
the manner provided in Section 305 hereof and (ii) the Depositary for
such Global Security or Securities; and
(16) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture), including, without
limitation, any terms required for or appropriate to (i) establishing
one or more series of medium-term notes to be issued in a Periodic
Offering or (ii) providing for the remarketing of the Securities of
such series.
All Securities of any one series (other than Securities offered in
a Periodic Offering) shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to the Board Resolution
referred to above and set forth in the Officers' Certificate referred to above
or in any such indenture supplemental hereto.
If any of the terms of the series, including the form of Security
of such series, are established by action taken pursuant to a Board Resolution,
a copy of an appropriate record of such action shall be certified by the
Secretary or an Assistant Secretary or other authorized officer of the Company,
and delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 hereof for the authentication and delivery of such
series of Securities.
With respect to Securities of a series offered in a Periodic
Offering, such Board Resolution and Officers' Certificate or supplemental
indenture may provide general terms or parameters for Securities of such series
and provide either that the specific terms of particular Securities of such
series shall be specified in a Company Order or that such terms shall be
determined by the Company or its agents in accordance with other procedures
specified in a Company Order as contemplated by the third paragraph of Section
303.
SECTION 302. Denominations.
The Securities of each series shall be issuable in registered form
without coupons, except as otherwise expressly provided in a supplemental
indenture hereto, in such denominations as shall be specified as contemplated by
Section 301 hereof. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chief Executive Officer, President, Vice President, General Manager or Treasurer
under its corporate seal reproduced thereon, and which need not be attested. The
Securities of any series shall be executed by such additional officer, if any,
as shall be specified pursuant to Section 301 hereof. The signature of any of
these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signature of any
individual who was at any time the proper officer of the Company shall bind the
Company, notwithstanding that such individual has ceased to hold such office
prior to the authentication and delivery of such Securities or did not hold such
office at the date of authentication 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 by
the Company to the Trustee for authentication, or, in the case of Securities
offered in a Periodic Offering, from time to time in accordance with such other
procedures (including, without limitation, the receipt by the Trustee of
electronic instructions from the Company or its duly authorized agents, promptly
confirmed in writing by the Company) acceptable to the Trustee as may be
specified from time to time by a Company Order for the specific terms of the
Securities being so offered, together with (i) a Company Order for the
authentication and delivery of such Securities, (ii) an Officers' Certificate
stating that (x) the Company is not, and upon the authentication by the Trustee
of the series of Securities, will not be in default under any of the terms or
covenants contained in the Indenture, and (y) all conditions that must be met by
the Company to issue Securities
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under the Indenture have been met, and the Trustee in accordance with the
Company Order shall authenticate and deliver such Securities. If the form or
terms of the Securities of the series have been established in or pursuant to
one or more Board Resolutions as permitted by Sections 201 and 301 hereof, in
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 601 hereof) shall be fully
protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201 hereof,
that such form has been established in conformity with the
provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301 hereof,
that such terms have been established in conformity with the
provisions of this Indenture;
(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or transfer or other similar laws relating to
or affecting the rights of creditors generally and except as the
enforceability thereof is subject to the application of general
principles of equity (regardless of whether considered in a
proceeding in equity or at law), including, without limitation, (i)
the possible unavailability of specific performance, injunctive
relief or any other equitable remedy and (ii) concepts of
materiality, reasonableness, good faith and fair dealing;
provided, however, that, with respect to Securities of a series offered in a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel in connection only with the first authentication of Securities of
such series, and in such case the opinions described in Clauses (b) and (c)
above may state, respectively, that:
(i) if the terms of such Securities are to be established pursuant
to a Company Order or pursuant to such procedures as may be specified
from time to time by a Company Order, all as contemplated by a Board
Resolution or action taken pursuant thereto, such terms will have been
duly authorized by the Company and established in conformity with the
provisions of this Indenture; and
(ii) that such Securities, when completed by appropriate
insertions and executed and delivered by the Company to the Trustee in
accordance with this Indenture, authenticated and delivered by the
Trustee in accordance with this Indenture, and issued and delivered by
the Company and paid for, all in accordance with any agreement of the
Company relating to the offering, issuance and sale of such Securities,
will be duly issued under this Indenture and will constitute the legal,
valid and binding obligations of the Company, enforceable in accordance
with their terms, subject to bankruptcy, insolvency, reorganization and
other similar laws of general applicability relating to or affecting
generally the enforcement of creditors' rights, to general equitable
principles and to such other qualifications as such counsel shall
conclude do not materially affect the rights of Holders of such
Securities and any coupons.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
protections or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 hereof and of the
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Board Resolution,
the Officers' Certificate, or an indenture supplemental hereto otherwise
required pursuant to Section 301 hereof or the Company Order, the Officers'
Certificate and the Opinion of
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Counsel otherwise required pursuant to such preceding paragraph at or prior to
the time of authentication of each Security of such series if such documents are
delivered at or prior to the time of authentication upon original issuance of
the first Security of such series to be issued. If all of the Securities of a
series are not authenticated and issued at one time, for each issuance of
Securities after the initial issuance of Securities, the Company shall be
required only to deliver to the Trustee the Security executed by the Company
together with a Company Order to the Trustee to authenticate such Security and
to deliver such Security in accordance with the instructions specified by such
Company Order. Any such Company Order shall constitute a representation and
warranty by the Company that the statements made in the Officers' Certificate
delivered to the Trustee prior to the authentication and issuance of the first
Security of such series are true and correct on the date thereof as if made on
and as of the date thereof.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Security
a certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 hereof together with a written statement
(which need not comply with Section 102 hereof and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been issued and sold by
the Company, for all purposes of this Indenture such Security shall be deemed
never to have been authenticated and delivered hereunder and shall never be
entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series,
the Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officer or officers executing such Securities may
determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, 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 the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of the same series and of like tenor of
authorized denominations. Until so exchanged the temporary Securities of any
series 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 the Corporate Trust Office
of the Trustee a register (the register maintained in such office and in any
other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Securities and of transfers of Securities. The Trustee
is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall
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authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor.
At the option of the Holder, any Security or Securities of any
series, other than a Global Security, may be exchanged for other Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and tenor, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and 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 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.
No service charge shall be made to the Holder 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 Sections 304, 906 or 1107 hereof not involving any
transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of that series selected for redemption under Section
1103 hereof and ending at the close of business on the day of such mailing, or
(ii) to register the transfer of or exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part.
The provisions of this Section 305 are, with respect to any Global
Security, subject to Section 311 hereof.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section 306, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in
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relation thereto and any other expenses (including the fees and expenses of the
Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section
306 in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section 306 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the Person
in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest.
Any interest on any Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall 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 Securities of such series at his address as it
appears in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series 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.
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Subject to the foregoing provisions of this Section 307, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Holder of a Security as the owner of such Security for the purpose
of receiving payment of principal of (and premium, if any) and (subject to
Section 307 hereof) interest, if any, on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary. All such payments so made to any such
Holder, or upon such Holder's order, shall be valid, and, to the extent of the
sums so paid, effectual to satisfy and discharge the liability for moneys
payable upon any such Security.
No holder of any beneficial interest in any Global Security held
on its behalf by a Depositary shall have any rights under this Indenture with
respect to such Global Security, and such Depositary may be treated by the
Company, the Trustee, and any agent of the Corporation or the Trustee as the
owner of such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall 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 as holder of any Security.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration
of transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. 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 309, except as expressly permitted by this Indenture.
All canceled Securities held by the Trustee shall be disposed of as directed by
a Company Order.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301
hereof for Securities of any series, interest, if any, on the Securities of each
series shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 311. Global Securities.
If the Company establishes pursuant to Section 301 hereof that the
Securities of a particular series are to be issued in the form of a Global
Security, then the Company shall execute and the Trustee shall, in accordance
with Section 303 hereof, authenticate and deliver, a Global Security or
Securities which (i) shall represent, and shall be denominated in an aggregate
amount equal to the aggregate principal amount of, all of the Outstanding
Securities of such series, (ii) shall be registered in the name of the
Depositary or its nominee, (iii) shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary's instruction and (iv) shall bear a
legend substantially to the following effect:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. This Security is exchangeable
for Securities registered in the name of a person other than the
Depositary or its nominee only in the limited circumstances described
in the Indenture, and no transfer of this Security (other than a
transfer of this Security 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) may be registered except in limited
circumstances.
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Unless this Global Security is presented by an authorized
representative of the Depositary to the Company or its agent for
registration of transfer, exchange or payment, and any definitive
Security is issued in the name of [Cede & Co.] or in such other name as
is requested by an authorized representative of the Depositary (and any
payment is made to [Cede & Co.] or to such other entity as is requested
by an authorized representative of the Depositary), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL in as much as the registered owner hereof, [Cede & Co.],
has an interest herein."
Notwithstanding the provisions of Section 305 hereof, the Global
Security of a series may be transferred, in whole but not in part and in the
manner provided in Section 305 hereof, only to another nominee of the Depositary
for such series, or to a successor Depositary for such series selected or
approved by the Company or to a nominee of such successor Depositary.
If (i) at any time the Depositary for a series of Securities
notifies the Company that it is unwilling or unable to continue as Depositary
for such series or if at any time the Depositary for such series shall no longer
be registered or in good standing under the Exchange Act, or other applicable
statute or regulation and a successor Depositary for such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such condition, as the case may be or (ii) there shall have
occurred and be continuing after any applicable grace periods an Event of
Default with respect to the Securities for a series, then in each such case,
this Section 311 shall no longer be applicable to the Securities of such series
and the Company will execute, and subject to Section 305 hereof, the Trustee
will authenticate and deliver Securities of such series in definitive registered
form without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Securities of such series in
exchange for such Global Securities. In addition, the Company may at any time
determine that the Securities of any series shall no longer be represented by
Global Securities and that the provisions of this Section 311 shall no longer
apply to the Securities of such series. In such event the Company will execute
and subject to Section 305 hereof, the Trustee, upon receipt of an Officers'
Certificate evidencing such determination by the Company, will authenticate and
deliver Securities of such series in definitive registered form without coupons,
in authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Securities of such series in exchange for such
Global Securities. Upon the exchange of the Global Securities for such
Securities in definitive registered form without coupons, in authorized
denominations, the Global Securities shall be canceled by the Trustee. Such
Securities in definitive registered form issued in exchange for the Global
Securities pursuant to this Section 311, shall be registered in such names and
in such authorized denominations as the Depositary, pursuant to the instructions
from its direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver Securities to the Depositary for delivery to
the persons in whose names such Securities are so registered.
SECTION 312. Periodic Offering of Securities.
Notwithstanding any contrary provision herein, if all Securities
of a series are not to be originally issued at one time, it shall not be
necessary for the Company to deliver to the Trustee an Officers' Certificate,
Board Resolution, supplemental indenture, Opinion of Counsel or Company Request
otherwise required pursuant to Sections 202, 301 and 303 at or prior to the time
of authentication of each Security of such series if such documents are
delivered to the Trustee or its agent at or prior to the authentication upon
original issuance of the first Security of such series to be issued; provided
that any subsequent request by the Company to the Trustee to authenticate
Securities of such series upon original issuance shall constitute a
representation and warranty by the Company and its counsel that as of the date
of such request, the statements made in the Officers' Certificate and opinions
made in the Opinion of Counsel delivered pursuant to Section 102 and 303,
respectively, shall be true and correct as if made on such date.
An Officers' Certificate, supplemental indenture or Board
Resolution delivered by the Company to the Trustee in the circumstances set
forth in the preceding paragraph may provide that Securities which are the
subject thereof will be authenticated and delivered by the Trustee or its agent
on original issue from time to time upon the written order of a person or
persons designated in such Officers' Certificate, supplemental indenture or
Board Resolution (any such telephonic instructions to be confirmed
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promptly in writing by such person or persons) and that such person or persons
are authorized to determine, consistent with such Officers' Certificate,
supplemental indenture or Board Resolution, such terms and conditions of said
Securities as are specified in such Officers' Certificate, supplemental
indenture or Board Resolution.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request 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 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 of that series theretofore
authenticated and delivered (other than (x) Securities which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306 hereof and (y) Securities 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 hereof) have been
delivered to the Trustee for cancellation; or
(B) all such Securities of that series not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable,
(ii) will become due and payable at their Stated Maturity
within one year,
(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, or
(iv) are deemed paid and discharged pursuant to Section 403
hereof, as applicable,
and the Company, in the case of (i), (ii), (iii) or (iv) of clause
(B) above, has deposited or caused to be deposited with the Trustee
as trust funds in trust for the purpose an amount of (a) money in
the currency or units of currency in which such Securities are
payable, or (b) in the case of (ii) or (iii) of clause (B) above and
(except as provided in an indenture supplemental hereto) if no
Securities of any series Outstanding are subject to repurchase at
the option of Holders (I) U.S. Government Obligations (denominated
in the same currency or units of currency in which such Securities
are payable) which through the payment of interest and principal in
respect thereof in accordance with their terms will provide not
later than one day before the Stated Maturity or Redemption Date, as
the case may be, money in an amount, or (II) a combination of money
or U.S. Government Obligations as provided in (I) above, in each
case, sufficient to pay and discharge the entire Indebtedness on
such Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest, if
any, to the date of such deposit (in the case of Securities which
have become due and payable) or 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
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(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 607 hereof, the
obligations of the Trustee to any Authenticating Agent under Section 614 hereof
and, if money shall have been deposited with the Trustee pursuant to subclause
(B) of clause (1) of this Section 401 or if money or U.S. Government Obligations
shall have been deposited with or received by the Trustee pursuant to Section
403 hereof, the obligations of the Trustee under Section 402 hereof and the last
paragraph of Section 1003 hereof shall survive.
SECTION 402. Application of Trust Money.
(a) Subject to the provisions of the last paragraph of Section
1003 hereof, all money or U.S. Government Obligations deposited with the Trustee
pursuant to Sections 401, 403 or 1009 hereof and all money received by the
Trustee in respect of U.S. Government Obligations deposited with the Trustee
pursuant to Sections 401, 403 or 1009 hereof, shall be held in trust and applied
by it, in accordance with the provisions of the Securities and this Indenture,
to the payment, to the persons entitled thereto, of the principal (and premium,
if any) and interest, if any, for whose payment such money has been deposited
with or received by the Trustee or to make mandatory sinking fund payments or
analogous payments as contemplated by Sections 401, 403 or 1009 hereof.
(b) The Company shall pay and shall indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against U.S. Government
Obligations deposited pursuant to Sections 401, 403 or 1009 hereof or the
interest and principal received in respect of such obligations other than any
payable by or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from time to
time upon Company Request any U.S. Government Obligations or money held by it as
provided in Sections 401, 403 or 1009 hereof which, in the opinion of a
nationally recognized firm of independent certified public accountants expressed
in a written certification thereof delivered to the Trustee, are then in excess
of the amount thereof which then would have been required to be deposited for
the purpose for which such U.S. Government Obligations or money was deposited or
received. This provision shall not authorize the sale by the Trustee of any U.S.
Government Obligations held under this Indenture.
SECTION 403. Satisfaction, Discharge and Defeasance of Securities of any
Series.
The Company shall be deemed to have paid and Discharged the entire
Indebtedness on all the Outstanding Securities of any series on the 91st day
after the date of the deposit referred to in subparagraph (e) hereof, and the
provisions of this Indenture, as it relates to such Outstanding Securities of
such series, shall no longer be in effect (and the Trustee, at the expense of
the Company, shall at Company Request execute proper instruments acknowledging
the same), except as to:
(a) the rights of Holders of Securities of such series to
receive, from the trust funds described in subparagraph (1) hereof,
(i) payment of the principal of (and premium, if any) and each
installment of principal of (and premium, if any) or interest, if
any, on the Outstanding Securities of such series on the Stated
Maturity of such principal or installment of principal or interest
or to and including the Redemption Date irrevocably designated by
the Company pursuant to subparagraph (5) hereof and (ii) the
benefit of any mandatory sinking fund payments applicable to the
Securities of such series on the day of which such payments are due
and payable in accordance with the terms of this Indenture and the
Securities of such series;
(b) the Company's obligations with respect to such Securities
of such series under Sections 305, 306, 1002 and 1003 hereof, if
the Company shall have irrevocably designated a Redemption Date
pursuant to subparagraph (5) hereof, Sections 1101, 1104 and 1106
hereof as they apply to such Redemption Date;
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(c) the Company's obligations with respect to the Trustee under
Section 607 hereof; and
(d) the rights, powers, trust and immunities of the Trustee
hereunder and the duties of the Trustee under Section 402 hereof
and, if the Company shall have irrevocably designated a Redemption
Date pursuant to subparagraph (5) hereof, Article Eleven and the
duty of the Trustee to authenticate Securities of such series on
registration of transfer or exchange;
provided that, the following conditions shall have been satisfied:
(1) the Company has deposited or caused to be irrevocably
deposited (except as provided in Section 402(c) hereof and the last
paragraph of Section 1003 hereof) with the Trustee as trust funds in
trust, specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of the Securities of such series, (i) money,
in the currency or units of currency in which such Securities are
payable, in an amount, or (ii) (except as provided in a supplemental
indenture or Board Resolution with respect to such series) if
Securities of such series are not subject to repurchase at the option
of Holders, (A) U.S. Government Obligations (denominated in the same
currency or units of currency in which such Securities are payable)
which through the payment of interest and principal in respect thereof
in accordance with their terms will provide not later than one day
before the due date of any payment referred to in clause (x) or (y) of
this subparagraph (1) money in an amount or (B) a combination thereof,
in each case sufficient, in the opinion of a nationally recognized firm
of independent certified public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge,
and which the Trustee shall be instructed to apply to pay and
discharge, (x) the principal of (and premium, if any) and each
installment of principal (and premium, if any) and interest, if any, on
the Outstanding Securities of such series on the Stated Maturity of
such principal or installment of principal or interest or to and
including the Redemption Date irrevocably designated by the Company
pursuant to subparagraph (5) hereof and (y) any mandatory sinking fund
payments applicable to the Securities of such series on the day on
which such payments are due and payable in accordance with the terms of
this Indenture and of the Securities of such series;
(2) the Company has delivered to the Trustee an Opinion of Counsel
to the effect that such provision would not cause any Outstanding
Securities of such series then listed on any national securities
exchange to be delisted as a result thereof;
(3) no Event of Default or event which with notice or lapse of
time would become an Event of Default (including by reason of such
deposit) with respect to the Securities of such series shall have
occurred and be continuing on the date of such deposit or during the
period ending on the 91st day after such date;
(4) the Company has delivered to the Trustee an unqualified
opinion, in form and substance reasonably acceptable to the Trustee, of
independent counsel of national standing selected by the Company and
satisfactory to the Trustee to the effect that (i) Holders of the
Securities will not recognize income, gain or loss for Federal income
tax purposes as a result of the deposit, defeasance and discharge,
which opinion shall be based on a change in law or a ruling by the U.S.
Internal Revenue Service and (ii) the defeasance trust is not, or is
registered as, an investment company under the Investment Company Act
of 1940;
(5) if the Company has deposited or caused to be deposited money
or U.S. Government Obligations to pay or discharge the principal of
(and premium, if any) and interest, if any, on the Outstanding
Securities of a series to and including a Redemption Date on which all
of the Outstanding Securities of such series are to be redeemed, such
Redemption Date shall be irrevocably designated by a Board Resolution
delivered to the Trustee on or prior to the date of deposit of such
money or U.S. Government Obligations, and such Board Resolution shall
be accompanied by an irrevocable Company Request that the Trustee give
notice of such redemption in the name and at the expense of the Company
not less than 30 nor more than 60 days prior to such Redemption Date in
accordance with Section 1104 hereof; and
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(6) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of the Securities have been complied with.
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 affected 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) unless such event is either inapplicable to
a particular series (to the extent expressly provided in the form of Security
for such series) or it is specifically deleted or modified in the supplemental
indenture creating such series of Securities or in the form of Security for such
series:
(a) default in the payment of any interest upon any Security of
that series when it becomes due and payable, and continuance of
such default for a period of 30 days; or
(b) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity, and
continuance of such default for a period of three days; or
(c) default in the payment of any sinking fund installment,
when and as due by the terms of a Security of that series, and
continuance of such default for a period of three days; or
(d) default in the performance, or breach, of any covenant or
warranty or obligation 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 501 specifically dealt with or
which has expressly been included in this Indenture solely for the
benefit of any series of Securities other than that series), and
continuance of such default or breach for a period of 90 days after
there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the
Holders of at least 33% in aggregate principal amount of the
Outstanding Securities of that series a written notice specifying
such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(e) 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 or other similar law or (B) a decree
or order appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or
of any substantial part of its property, or ordering the winding up
or liquidation of its affairs, and the continuance of any such
decree or order for relief or any such other decree or order
unstayed and in effect for a period of 90 consecutive days; or
(f) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency or other similar law or of any other case or proceeding
to be adjudicated a bankrupt or insolvent, or the consent by it to
the entry of a decree or order for relief in respect of the Company
in an involuntary case or proceeding under any applicable Federal
or State bankruptcy, insolvency 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 relief under any applicable Federal or State law, or the
consent by it to the filing of such petition or to the appointment
of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the Company
or of any substantial part of its property, or the making by it of
an assignment for the benefit of creditors, or the taking of
corporate action by the Company in furtherance of any such action;
or
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(g) any other Event of Default provided in the supplemental
indenture or provided in or pursuant to the Board Resolution under
which such series of Securities is issued or in the form of
Security for such 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 described in paragraph (a), (b), (c), (d) or (g) of Section
501 hereof occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 33% in aggregate principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified in the terms
thereof) 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 upon the date which is 10 days
after the date of such notice.
If an Event of Default described in paragraph (e) or (f) of
Section 501 hereof occurs and is continuing, then and in every such case, the
principal amount (or, if any Securities are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms thereof)
of all the Securities shall, without any notice to the Company or any other act
on the part of the Trustee or any Holder of the Securities, become and be
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, if any, on all Securities of that
series,
(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 any 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
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of and accrued
interest on Securities of that series which have become due solely by
such declaration of acceleration, have been cured or waived as provided
in Section 513 hereof.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been accelerated
and declared due and payable pursuant to the provisions hereof, then, from and
after such declaration, unless such declaration has been rescinded and annulled,
the principal amount of such Original Issue Discount Securities shall be deemed,
for all purposes hereunder, to be such portion of the principal thereof as shall
be due and payable as a result of such acceleration, and payment of such portion
of the principal thereof as shall be due and payable as a result
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of such acceleration, together with interest, if any, thereon and all other
amounts owing thereunder, shall constitute payment in full of such Original
Issue Discount Securities.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if (a) 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 (b) default is made in the
payment of the principal of (or premium, if any, on) any Security at the
Maturity thereof, then the Company will, upon written demand of the Trustee, pay
to it, for the benefit of the Holders of such Securities, the whole amount then
due and payable on such Securities for principal (and premium, if any) and
interest, if any, and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal (and premium, if any) and
on any overdue interest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If any 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 by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights.
The Trustee shall not be required to take notice or be deemed to
have notice of any Event of Default other than pursuant to paragraphs (a), (b)
or (c) of Section 501 of this Indenture, unless the Trustee shall be
specifically notified in writing of such default by the Company, or by the
Holders of a majority in aggregate principal amount of Outstanding Securities.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal
(and premium, if any) and interest 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
of the Holders 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 to make such payments to the Trustee and any other amounts due the
Trustee under Section 607 hereof.
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Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall
be applied in the following order with respect to the Securities of any series,
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 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 hereof;
SECOND: In case the principal and premium, if any, of the
Securities of such series in respect of which moneys have been
collected shall not have become and be then due and payable, to the
payment of interest, if any, on the Securities of such series in
default in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been
collected by the Trustee and to the extent permitted by law) upon the
overdue installments of interest at the rate prescribed therefor in
such Securities, such payments to be made ratably to the Persons
entitled thereto, without discrimination or preference;
THIRD: In case the principal or premium, if any, of the Securities
of such series in respect of which moneys have been collected shall
have become and shall be then due and payable, to the payment of the
whole amount then owing and unpaid upon all the Securities of such
series for principal and premium, if any, and interest, if any, with
interest upon the overdue principal and premium, if any, and (to the
extent that such interest has been collected by the Trustee and to the
extent permitted by law) upon overdue installments of interest at the
rate prescribed therefor in the Securities of such series; and in case
such moneys shall be insufficient to pay in full the whole amount so
due and unpaid upon the Securities of such series, then to the payment
of such principal and any premium and interest, without preference or
priority of principal over interest, or of interest over principal or
premium, or of any installment of interest over any other installment
of interest, or of any Security of such series over any other Security
of such series, ratably to the aggregate of such principal and any
premium and accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the Company or
any other Person lawfully entitled thereto.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of that
series;
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(2) the Holders of not less than 33% 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 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 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 hereof) interest, if any, on such Security on the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption or
repayment at the option of the Holder, on the Redemption Date or the Repayment
Date, respectively) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding 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 in the last paragraph
of Section 306 hereof, no right or remedy herein conferred upon or reserved to
the Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
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SECTION 512. Control by Holders.
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,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee shall not determine that the action so directed
would be unjustly prejudicial to Holders not taking part in such
action.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of any series may on behalf of the Holders
of all the Securities of such series waive any past default hereunder with
respect to such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest, if any, on any Security of such series, or
(2) in respect of a covenant or 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 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 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 514 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 for the enforcement of the
payment of the principal of (or premium, if any) or interest, if any, on any
Security on or after the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption or repayment at the option of the
Holder, on or after the Redemption Date or the Repayment Date, respectively).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of a default with respect to the
Securities of any series,
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(1) the Trustee undertakes to perform 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
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 examine the same to determine whether
or not they conform to the requirements of this Indenture.
(b) In case a default has occurred and is continuing, the Trustee
shall exercise 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 willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section 601;
(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 of any series, determined as provided in Section
512 hereof, 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 601. The permissive right of the Trustee to do things enumerated in this
Indenture shall not be construed as a duty and it shall not be answerable for
other than its own negligent action, its own negligent failure to act or its own
willful misconduct.
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 by mail to
all Holders of Securities of such series, as their names and addresses appear in
the Security Register, notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or premium,
if any) or interest, if any, 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 trust 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;
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and provided, further, that in the case of any default of the character
specified in Section 501(d) hereof 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 602, 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 the provisions of Section 601 hereof:
(a) the Trustee may rely and shall be fully protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of Indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order or as otherwise
expressly provided herein and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
deems 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 written advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to expend or risk its
own funds or to exercise, at the request or direction of any of the Holders, any
of the rights or powers vested in it by this Indenture 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 investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of Indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled
upon reasonable request to examine the books, records and premises of the
Company, personally or by agent or attorney; and
(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.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof. The Trustee
shall not be responsible for doing or performing any thing or act which the
Company shall have covenanted to do or perform, or for any compliance with any
covenant by the Company, nor shall the Trustee be bound to ascertain or inquire
as to the performance of
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any covenant, condition or agreement by the Company, but it may require full
information and advice in regard to any of the foregoing.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 608 and 613 hereof, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder 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 from time to time such compensation as
is agreed upon in writing, or, if no such agreement exists, 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), and shall have a
lien therefor on any and all funds at any time held by it under this
Indenture for such compensation;
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel, which
compensation, expenses and disbursements shall be set forth in
sufficient detail), and shall have a lien therefor on any and all funds
at any time held by it under this Indenture for such expenses and
disbursements, except any such expense, disbursement or advance as may
be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs
and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
SECTION 608. Conflicting Interests.
The Trustee for the Securities of any series issued hereunder
shall be subject to the provisions of Section 310(b) of the Trust Indenture Act
during the period of time provided for therein. In determining whether the
Trustee has a conflicting interest as defined in Section 310(b) of the Trust
Indenture Act with respect to the Securities of any series, there shall be
excluded for purposes of the conflicting interest provisions of such Section
310(b) the Securities of every other series issued under this Indenture. Nothing
herein shall prevent the Trustee from filing with the Commission the application
referred to in the second to last paragraph of Section 310(b) of the Trust
Indenture Act.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
eligible to act as trustee under the Trust Indenture Act and which shall have a
combined capital and surplus of at least $50,000,000. If the Trustee does not
have an office in The City of New York, the Trustee may appoint an
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agent in The City of New York reasonably acceptable to the Company to conduct
any activities which the Trustee may be required under this Indenture to conduct
in The City of New York. If the Trustee does not have an office in The City of
New York or has not appointed an agent in The City of New York, the Trustee
shall be a participant in The Depository Trust Company and FAST distribution
systems. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of a Federal, State, or District of
Columbia supervising or examining authority, then for the purposes of this
Section 609, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 609, the Trustee
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor Trustee.
(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 hereof.
(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 hereof shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b)
of the Trust Indenture Act pursuant to Section 608 hereof with
respect to any series of Securities after written request
therefor by the Company or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under
Section 609 hereof 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 514 hereof,
any Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 611 hereof. 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
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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
hereof, become the successor Trustee with respect to the Securities of such
series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 611 hereof, any Holder who has
been a bona fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by mailing written notice of such event by first-class mail, postage prepaid, to
all Holders of Securities of such series as their names and addresses appear in
the Security Register. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its
Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Securities
of one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section 611, as the case may be.
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(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
(a) Subject to Subsection (b) of this Section 613, if the Trustee
shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Company within three months prior to a default, as defined in
Subsection (c) of this Section 613, or subsequent to such a default, then,
unless and until such default shall be cured, the Trustee shall set apart and
hold in a special account for the benefit of the Trustee individually, the
Holders of the Securities and the holders of other indenture securities, as
defined in Subsection (c) of this Section 613:
(1) an amount equal to any and all reductions in the amount due
and owing upon any claim as such creditor in respect of principal or
interest, effected after the beginning of such three-month period and
valid as against the Company and its other creditors, except any such
reduction resulting from the receipt or disposition of any property
described in paragraph (2) of this Subsection, or from the exercise of
any right of set-off which the Trustee could have exercised if a
petition in bankruptcy had been filed by or against the Company upon
the date of such default; and
(2) all property received by the Trustee in respect of any claims
as such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such
three-month period, or an amount equal to the proceeds of any such
property, if disposed of, subject, however, to the rights, if any, of
the Company and its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
(A) to retain for its own account (i) payments made on account of
any such claim by any Person (other than the Company) who is liable
thereon, and (ii) the proceeds of the bona fide sale of any such claim
by the Trustee to a third Person, and (iii) distributions made in cash,
securities or other property in respect of claims filed against the
Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable
State law;
(B) to realize, for its own account, upon any property held by it
as security for any such claim, if such property was so held prior to
the beginning of such three-month period;
(C) to realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as security
for any such claim, if such claim was created after the beginning of
such three-month period and such property was received as security
therefor simultaneously with the creation thereof, and if the Trustee
shall sustain the burden of proving that at the time such property was
so received the Trustee had no reasonable cause to believe that a
default, as defined in Subsection (c) of this Section 613, would occur
within three months; or
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(D) to receive payment on any claim referred to in paragraph (B)
or (C), against the release of any property held as security for such
claim as provided in paragraph (B) or (C), as the case may be, to the
extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such three-month period for property held as
security at the time of such substitution shall, to the extent of the fair value
of the property released, have the same status as the property released, and, to
the extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and
property held in such special account and the proceeds thereof shall be
apportioned among the Trustee, the Holders and the holders of other indenture
securities in such manner that the Trustee, the Holders and the holders of other
indenture securities realize, as a result of payments from such special account
and payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law, the same percentage of their respective
claims, figured before crediting to the claim of the Trustee anything on account
of the receipt by it from the Company of the funds and property in such special
account and before crediting to the respective claims of the Trustee and the
Holders and the holders of other indenture securities dividends on claims filed
against the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable State law,
but after crediting thereon receipts on account of the Indebtedness represented
by their respective claims from all sources other than from such dividends and
from the funds and property so held in such special account. As used in this
paragraph, with respect to any claim, the term "dividends" shall include any
distribution with respect to such claim, in bankruptcy or receivership or
proceedings for reorganization pursuant to the Federal Bankruptcy Act or
applicable State law, whether such distribution is made in cash, securities or
other property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership or proceedings for reorganization is pending shall have
jurisdiction (i) to apportion among the Trustee, the Holders and the holders of
other indenture securities, in accordance with the provisions of this paragraph,
the funds and property held in such special account and proceeds thereof, or
(ii) in lieu of such apportionment, in whole or in part, to give to the
provisions of this paragraph due consideration in determining the fairness of
the distributions to be made to the Trustee and the Holders and the holders of
other indenture securities with respect to their respective claims, in which
event it shall not be necessary to liquidate or to appraise the value of any
securities or other property held in such special account or as security for any
such claim, or to make a specific allocation of such distributions as between
the secured and unsecured portions of such claims, or otherwise to apply the
provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning
of such three-month period shall be subject to the provisions of this Subsection
as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three-month period, it
shall be subject to the provisions of this Subsection if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim, which would
have given rise to the obligation to account, if such Trustee had
continued as Trustee, occurred after the beginning of such three-month
period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection (a)
of this Section 613 a creditor relationship arising from:
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(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year
or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction or by this Indenture, for the purpose of
preserving any property which shall at any time be subject to the lien
of this Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advances and of the
circumstances surrounding the making thereof is given to the Holders at
the time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depository, or other similar
capacity;
(4) an Indebtedness created as a result of services rendered or
premises rented; or an Indebtedness created as a result of goods or
securities sold in a cash transaction, as defined in Subsection (c) of
this Section 613;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve
Act, as amended, which is directly or indirectly a creditor of the
Company; and
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within
the classification of self-liquidating paper, as defined in Subsection
(c) of this Section 613.
(c) For the purposes of this Section 613 only:
(1) the term "default" means any failure to make payment in full
of the principal of or interest on any of the Securities or upon the
other indenture securities when and as such principal or interest
becomes due and payable;
(2) the term "other indenture securities" means securities upon
which the Company is an obligor (as defined in the Trust Indenture Act)
outstanding under any other indenture (i) under which the Trustee is
also trustee, (ii) which contains provisions substantially similar to
the provisions of this Section 613, and (iii) under which a default
exists at the time of the apportionment of the funds and property held
in such special account;
(3) the term "cash transaction" means any transaction in which
full payment for goods or securities sold is made within seven days
after delivery of the goods or securities in currency or in checks or
other orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security
is received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation;
(5) the term "Company" means any obligor upon the Securities; and
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(6) the term "Federal Bankruptcy Act" means the Bankruptcy Code or
Title 11 of the United States Code.
SECTION 614. Authenticating Agents.
From time to time the Trustee, in its sole discretion, may appoint
one or more Authenticating Agents with respect to one or more series of
Securities with power to act on the Trustee's behalf and subject to its
direction in the authentication and delivery of Securities of such series or in
connection with transfers and exchanges under Sections 304, 305, 306, and 1107
hereof as fully to all intents and purposes as though the Authenticating Agent
had been expressly authorized by those Sections of this Indenture to
authenticate and deliver Securities of such series. For all purposes of this
Indenture, the authentication and delivery of Securities by an Authenticating
Agent pursuant to this Section 614 shall be deemed to be authentication and
delivery of such Securities "by the Trustee". Each such Authenticating Agent
must (a) be reasonably acceptable to the Company and (b) at all times be a
corporation organized and doing business under the laws of the United States,
any State thereof or the District of Columbia, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by Federal, State or
District of Columbia authority. If such corporation publishes reports of
condition at least annually pursuant to law or the requirements of such
authority, then for the purposes of this Section 614 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 eligible in accordance with
the provisions of this Section 614, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section 614.
Any corporation into which any Authenticating Agent may be merged
or with which it may be consolidated, or any corporation resulting from any
merger or consolidation or to which any Authenticating Agent shall be a party,
or any corporation succeeding to the corporate trust business of any
Authenticating Agent, shall be the successor of the Authenticating Agent
hereunder, if such successor corporation is otherwise eligible under this
Section 614, without the execution or filing of any paper or any further act on
the part of the parties hereto or the Authenticating Agent or such successor
corporation.
An Authenticating Agent may resign at any time by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time terminate the agency of any Authenticating Agent by giving written notice
of termination to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
any Authenticating Agent shall cease to be eligible under this Section 614, the
Trustee may appoint a successor Authenticating Agent which shall be acceptable
to the Company and shall mail notice of such appointment to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as the names and addresses of such Holders appear on the Security
Register. Any successor Authenticating Agent, upon acceptance of its appointment
hereunder, shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section 614.
The Trustee agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section 614, and the
Trustee shall be entitled to be reimbursed for such payments pursuant to Section
607 hereof.
If an appointment with respect to one or more series of Securities
is made pursuant to this Section 614, 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:
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This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
----------------------------------
As Trustee
----------------------------------
As Authenticating Agent
----------------------------------
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
with respect to the Securities of each series
(a) semi-annually, not later than 15 days after each Regular
Record Date, or, in the case of any series of Securities on which
semi-annual interest is not payable, not more than 15 days after
such semi-annual dates as may be specified by the Trustee, a list,
in such form as the Trustee may reasonably require, of the names
and addresses of the Holders as of such Regular Record Date or
semi-annual date, as the case may be, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more
than 15 days prior to the time such list is furnished;
provided, however, that if and so long as the Trustee is Security Registrar for
any series of Securities, no such list shall be required to be furnished with
respect to any such series.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 701 hereof and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as provided
in Section 701 hereof upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as "applicants")
apply in writing to the Trustee, and furnish to the Trustee reasonable proof
that each such applicant has owned a Security for a period of at least six
months preceding the date of such application, and such application states that
the applicants desire to communicate with other Holders with respect to their
rights under this Indenture or under the Securities and is accompanied by a copy
of the form of proxy or other communication which such applicants propose to
transmit, then the Trustee shall, within five business days after the receipt of
such application, at its election, either
(i) afford such applicants access to the information preserved at
the time by the Trustee in accordance with Section 702(a) hereof, or
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(ii) inform such applicants as to the approximate number of
Holders whose names and addresses appear in the information preserved
at the time by the Trustee in accordance with Section 702(a) hereof,
and as to the approximate cost of mailing to such Holders the form of
proxy or other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder whose name and address appear in the information
preserved at the time by the Trustee in accordance with Section 702(a) hereof a
copy of the form of proxy or other communication which is specified in such
request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender the
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interest of the Holders or would be in violation of applicable law. Such written
statement shall specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the written statement
so filed, shall enter an order refusing to sustain any of such objections or if,
after the entry of an order sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for hearing, that all the
objections so sustained have been met and shall enter an order so declaring, the
Trustee shall mail copies of such material to all such Holders with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with Section 702(b) hereof, regardless of the source from which
such information was derived, and that the Trustee shall not be held accountable
by reason of mailing any material pursuant to a request made under Section
702(b) hereof.
SECTION 703. Reports by Trustee.
(a) Within 60 days after the first May 15 which occurs not less
than 60 days following the first date of issuance of Securities of any series
under this Indenture and within 60 days after May 15 in every year thereafter,
the Trustee shall transmit by mail to all Holders, as their names and addresses
appear in the Security Register, a brief report dated as of such May 15 with
respect to any of the following events which may have occurred within the
previous 12 months (but if no such event has occurred within such period no
report need be transmitted):
(1) any change to its eligibility under Section 609 hereof and its
qualifications under Section 608 hereof;
(2) the creation of or any material change to a relationship
specified in Section 608 hereof;
(3) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof)
made by the Trustee (as such) which remain unpaid on the date of such
report, and for the reimbursement of which it claims or may claim a
lien or charge, prior to that of the Securities, on any property or
funds held or collected by it as Trustee, except that the Trustee shall
not be required (but may elect) to report such advances if such
advances so remaining unpaid aggregate not more than 1/2 of 1% of the
principal amount of the Securities Outstanding on the date of such
report;
(4) any change to the amount, interest rate and maturity date of
all other Indebtedness owing by the Company (or by any other obligor on
the Securities) to the Trustee in its individual capacity, on the date
of such report, with a brief description of any property held as
collateral
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security therefor, except an Indebtedness based upon a creditor
relationship arising in any manner described in Sections 613(b)(2),
(3), (4) or (6) hereof;
(5) any change to the property and funds, if any, physically in
the possession of the Trustee as such on the date of such report;
(6) any release, or release and substitution, of property subject
to the lien of this Indenture, if any (and the consideration therefor,
if any) which it has not previously reported;
(7) any additional issue of Securities which the Trustee has not
previously reported; and
(8) any action taken by the Trustee in the performance of its
duties hereunder which it has not previously reported and which in its
opinion materially affects the Securities, except action in respect of
a default, notice of which has been or is to be withheld by the Trustee
in accordance with Section 602 hereof.
(b) The Trustee shall transmit by mail to all Holders, as their
names and addresses appear in the Security Register, a brief report with respect
to (1) the release, or release and substitution, of property subject to the lien
of this Indenture (and the consideration therefor, if any) unless the fair value
of such property, is less than 10% of the principal amount of Securities
outstanding at the time of such release, or release and substitution, and (2)
the character and amount of any advances (and if the Trustee elects so to state,
the circumstances surrounding the making thereof) made by the Trustee (as such)
since the date of the last report transmitted pursuant to Subsection (a) of this
Section 703 (or if no such report has yet been so transmitted, since the date of
execution of this instrument) for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities, on property or funds
held or collected by it as Trustee and which it has not previously reported
pursuant to this Subsection, except that the Trustee shall not be required (but
may elect) to report such advances if such advances remaining unpaid at any time
aggregate 10% or less of the principal amount of the Securities Outstanding at
such time, such report to be transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each national securities
exchange upon which any Securities are listed, with the Commission and with the
Company. The Company will notify the Trustee when any Securities are listed on
any national securities exchange.
SECTION 704. Reports by Company.
The Company 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 Exchange Act; or, if the Company is not required
to file information, documents or reports pursuant to either of said
Sections, then it shall file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
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(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents
and reports required to be filed by the Company pursuant to paragraphs
(1) and (2) of this Section 704 as may be required by rules and
regulations prescribed from time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, SALE OR TRANSFER
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey, sell or otherwise transfer its properties and assets
substantially as an entirety to any Person, unless the corporation formed by
such consolidation or into which the Company is merged or the Person which
acquires by conveyance, sale or transfer the properties and assets of the
Company substantially as an entirety is a corporation organized and existing
under the laws of the United States of America, any State thereof or the
District of Columbia, and shall expressly assume by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of (and premium, if any)
and interest, if any, on all the Securities and the performance of every
covenant of this Indenture on the part of the Company to be performed or
observed.
SECTION 802. Successor Corporation to be Substituted.
Upon any consolidation by the Company with or merger by the
Company into any other corporation or any conveyance, sale or transfer of the
properties and assets of the Company substantially as an entirety in accordance
with Section 801 hereof, the successor corporation formed by such consolidation
or into which the Company is merged or to which such conveyance, sale or
transfer is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same effect
as if such successor corporation had been named as the Company herein, and
thereafter the predecessor corporation shall be relieved of all obligations and
covenants under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(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;
(2) to add to the covenants of the Company, or to surrender any
right or power herein conferred upon the Company, for the benefit of
the Holders of all or any series of Securities (and if such covenants,
or the surrender of such rights or powers, 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;
(3) to add any additional Events of Default;
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(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance
of Securities in bearer form, registrable or not registrable as to
principal, and with or without interest coupons, or to facilitate the
issuance of Securities in uncertificated form, or to permit or
facilitate the issuance of extendible or remarketed Securities;
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only as to the Securities of any series created by such
supplemental indenture and Securities of any series subsequently
created to which such change or elimination is made applicable by the
subsequent supplemental indenture creating such series;
(6) to secure the Securities;
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301 hereof;
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b) hereof;
(9) to provide for any rights of the Holders of Securities of any
series to require the repurchase of Securities of such series by the
Company;
(10) to cure any ambiguity or defect, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture or the Securities or make any
other changes herein or therein, provided such action shall not
adversely affect the interests of the Holders of Securities of any
series in any material respect;
(11) to add to this Indenture such provisions as may be expressly
permitted by the Trust Indenture Act, excluding, however, the
provisions referred to in Section 316(a)(2) of the Trust Indenture Act
as in effect at the date as of which this instrument was executed or
any corresponding provision in any similar Federal statute hereafter
enacted; or
(12) to modify, alter, amend or supplement this Indenture in any
other respect which is not materially adverse to Holders, which does
not involve a change described in clauses (1), (2) or (3) of Section
902 hereof.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all series affected by such
supplemental indenture (voting as one class), by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by or pursuant to a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest, if any, on, any Security, or
reduce the principal amount thereof or the rate of interest thereon or
any premium payable upon the redemption thereof, or reduce the amount
of the principal of an Original Issue Discount Security that would be
due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502 hereof, or change any Place of
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Payment 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 or repayment at
the option of the Holder, on or after the Redemption Date or Repayment
Date, respectively),
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences, or the
declaration of certain defaults hereunder, provided for in this
Indenture, or
(3) modify any of the provisions of this Section 902 or Section
513 hereof, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, provided, however, that this clause shall not be deemed to
require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section
902, or the deletion of this proviso, in accordance with the
requirements of Sections 611(b) and 901(8) hereof.
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 under this Section 902 that the
particular form of any proposed supplemental indenture be approved by an Act,
provided that the substance of such proposed supplemental indenture shall have
been approved.
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 601 hereof) 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 or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in effect.
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 so
determines, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the
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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, if any, on the Securities of that series in accordance
with the terms of the Securities of such series and this Indenture.
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 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 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 or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and, in such event, the Trustee shall act
as the Company's agent to receive all such presentations, surrenders, notices
and demands.
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, however, 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 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 at any time acts 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, if any, 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, if any, so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company has one or more Paying Agents for any series
of Securities, it will, no later than 11:00 a.m., New York Time, on or prior to
each due date of the principal of (and premium, if any) or interest, if any, on
any Securities of that series, deposit with a Paying Agent a sum in immediately
available funds sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its
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 1003, that such Paying Agent will:
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(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest, if any, on Securities of that series
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 (and premium, if any) or interest, if any, 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 Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
The Company initially authorizes the Trustee to act as Paying
Agent for the Securities on its behalf. The Company may at any time and from
time to time authorize one or more Persons to act as Paying Agent in addition to
or in place of the Trustee with respect to any series of Securities issued under
this Indenture.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of (and premium,
if any) or interest, if any, on any Security of any series and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
shall at the written request and expense of the Company cause to be published
once, in a newspaper published in the English language, customarily published on
each Business Day and of general circulation in the Borough of Manhattan, The
City of New York, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 1004. 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 will use its best efforts to do or cause to be done all things
necessary to preserve and keep in full force and effect its rights (charter and
statutory) and franchises; provided, however, that the Company shall not be
required to preserve any such right or franchise if the Board of Directors shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company.
SECTION 1005. Maintenance of Properties.
The Company will cause all tangible properties used or useful in
the conduct of its business or the business of any Subsidiary 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 in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section 1005 shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
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discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary.
SECTION 1006. Maintenance of Insurance.
The Company will maintain, and will cause each of its Subsidiaries
to maintain, with insurers the Company reasonably believes to be financially
sound and reputable, insurance deemed adequate by the Company with respect to
its properties and business and the properties and business of its Subsidiaries
against loss or damage of the kinds customarily insured against by corporations
in the same or similar business. Such insurance may be subject to co-insurance,
deductibility or similar clauses which, in effect, result in self-insurance of
certain losses, provided that such self-insurance is in accord with the
practices of corporations in the same or similar business and adequate insurance
reserves are maintained in connection with such self-insurance.
SECTION 1007. Limitation on Liens.
(a) Nothing in this Indenture or in the Securities shall in any
way restrict or prevent the Company or any Subsidiary from incurring any
Indebtedness; provided that if this covenant shall be made applicable to the
Securities of a particular series, the Company covenants and agrees that it will
not, nor will it permit any Subsidiary to, issue, assume or guarantee any
Indebtedness secured by a Lien upon any property or assets of the Company or any
Subsidiary, respectively, without effectively providing that the Outstanding
Securities to which this section shall have been made applicable (together with,
if the Company so determines, any other Indebtedness then existing or thereafter
created ranking equally with the Securities) shall be secured equally and
ratably with (or prior to) such Indebtedness so long as such Indebtedness shall
be so secured (provided, that for the purpose of providing such equal and
ratable security, the principal amount of Outstanding Securities of any series
of Original Issue Discount Securities shall be such portion of the principal
amount as may be specified in the terms of that series).
The limitation in the preceding paragraph shall not apply to
Indebtedness secured by:
(i) Liens in existence on the date of original issue of the
Securities of any series to which this restriction is made applicable;
(ii) Liens created solely for the purpose of securing Indebtedness
incurred to finance, refinance or refund the purchase price or cost
(including the cost of construction) of property or assets acquired
after the date hereof (by purchase, construction or otherwise), or
Liens in favor of guarantors of obligations or Indebtedness
representing, or incurred to finance, refinance or refund, such
purchase price or cost, provided that no such Lien shall extend to or
cover any property or assets other than the property or assets so
acquired and improvements thereon (other than, in the case of Liens
securing Indebtedness incurred to finance construction or improvement
costs, any theretofore unimproved real property on which the property
so constructed, or the improvement, is located);
(iii) Liens which secure only Indebtedness owing by a Subsidiary
to the Company, to one or more Subsidiaries or to the Company and one
or more Subsidiaries;
(iv) Liens on any property or assets acquired from a corporation
which is merged with or into the Company or any Subsidiary, or any
Liens on the property or assets of any corporation or other entity
existing at the time such corporation or other entity becomes a
Subsidiary and, in either such case, is not created as a result of or
in connection with or in anticipation of any such transaction (unless
such Lien was created to secure or provide for the payment of any part
of the purchase price of such corporation);
(v) any Lien on any property, shares of capital stock,
Indebtedness or assets existing at the time of acquisition thereof and
which is not created as a result of or in connection with or in
anticipation of such acquisition (unless such Lien was created to
secure or provide for the
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payment of any part of the purchase price of such property, shares of
capital stock, Indebtedness or assets);
(vi) Liens on any property or assets acquired, constructed or
improved by the Company or any Subsidiary after the date of this
Indenture which are created or assumed contemporaneously with such
acquisition, construction or improvement, or within 180 days after the
completion thereof, to secure or provide for the payment of all or any
part of the cost of such acquisition, construction or improvement
(including related expenditures capitalized for Federal income tax
purposes in connection therewith) incurred after the date of this
Indenture; or
(vii) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any Lien
referred to in the foregoing clauses (i) through (vi) or of any
Indebtedness secured thereby, provided that the principal amount of
Indebtedness so secured thereby shall not exceed the principal amount
of Indebtedness so secured at the time of such extension, renewal or
replacement, and that such extension, renewal or replacement Lien shall
be limited to all or part of substantially the same property which
secured the Lien extended, renewed or replaced (plus improvements on or
additions to such property).
(b) Notwithstanding Section 1007(a), the Company and one or more
Subsidiaries may issue, assume or guarantee Indebtedness secured by Liens which
would otherwise be subject to the foregoing restrictions in an aggregate
principal amount which, together with the aggregate outstanding principal amount
of all other Indebtedness of the Company and its Subsidiaries which would
otherwise be subject to the foregoing restrictions (not including Indebtedness
permitted to be secured under clauses (i) through (vi)) hereof does not at the
time of issuance, assumption, or guarantee thereof exceed 20% of Net Tangible
Assets.
(c) The following types of transactions, among others, shall not
be deemed to create Indebtedness secured by Liens:
(i) Liens in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or political
subdivision of the United States of America or any State thereof or
political entity affiliated therewith, or other obligations, pursuant
to any contract or statute or to secure any Indebtedness incurred for
the purpose of financing all or any part of the cost of acquiring,
constructing or improving the property subject to such Liens (including
Liens incurred in connection with pollution control, industrial revenue
or similar financings);
(ii) Liens imposed by law, such as mechanics', workmen's,
repairmen's, materialmen's, carriers', warehousemen's, vendors' or
other similar liens arising in the ordinary course of business, or
pledges or deposits to obtain the release of any of the foregoing, or
Liens required by any contract or statute in order to permit the
Company or a Subsidiary to perform any contract or subcontract made by
it with or at the request of a governmental entity (federal, state or
municipal) or any department, agency or instrumentality thereof, or to
secure partial, progress, advance or any other payments to the Company
or any Subsidiary by a governmental entity (federal, state or
municipal) or any department, agency or instrumentality thereof
pursuant to the provisions of any contract or statute;
(iii) pledges or deposits under workmen's compensation laws or
similar legislation and Liens of judgments thereunder which are not
currently dischargeable, or good faith deposits in connection with
bids, tenders, contracts (other than for the payment of money) or
leases to which the Company or any Subsidiary is a party, or deposits
to secure public or statutory obligations of the Company or any
Subsidiary, or deposits in connection with obtaining or maintaining
self-insurance or to obtain the benefits of any law, regulation or
arrangement pertaining to unemployment insurance, old age pensions,
social security or similar matters, or deposits of cash or obligations
of the United States of America to secure surety, appeal or customs
bonds to which the Company or any Subsidiary is a party, or deposits in
litigation or other proceedings such as, but not limited to,
interpleader proceedings;
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(iv) Liens created by or resulting from any litigation or other
proceeding which is being contested in good faith by appropriate
proceedings, including Liens arising out of judgments or awards against
the Company or any Subsidiary with respect to which the Company or such
Subsidiary is in good faith prosecuting an appeal or proceedings for
review; or Liens incurred by the Company or any Subsidiary for the
purpose of obtaining a stay or discharge in the course of any
litigation or other proceeding to which the Company or such Subsidiary
is a party;
(v) Liens for taxes or assessments or governmental charges or
levies not yet due or delinquent, or which can thereafter be paid
without penalty, or which are being contested in good faith by
appropriate proceedings;
(vi) Liens consisting of easements, rights-of-way, zoning
restrictions, restrictions on the use of real property, and defects and
irregularities in the title thereto, landlords' liens and other similar
liens and encumbrances none of which interfere materially with the use
of the property or assets covered thereby in the ordinary course of the
business of the Company or such Subsidiary and which do not, in the
reasonable opinion of the Company, materially detract from the value of
such properties; and
(vii) Liens on any property created, assumed or otherwise brought
into existence in contemplation of the sale or other disposition of the
property subject to such Liens, whether directly or indirectly, by way
of share disposition or otherwise; provided that 180 days from the
creation of such Liens the Company must have disposed of such property
and any Indebtedness secured by such Liens shall be without recourse to
the Company or any Subsidiary.
SECTION 1008. Statement by Officers as to Default.
The Company will deliver to the Trustee on or before May 15 in
each year, an Officers' Certificate stating that in the course of the
performance by each signer of his duties as an officer of the Company he would
normally have knowledge of any default by the Company in the performance and
observance of any of the covenants contained in Sections 1001 to 1007 hereof,
stating whether or not he has knowledge of any such default and, if so,
specifying each such default of which such signer has knowledge and the nature
thereof.
SECTION 1009. Defeasance of Certain Obligations.
The Company may omit to comply with any term, provision or
condition set forth in Section 801 or in Sections 1004 to 1007, inclusive,
hereof with respect to the Securities of any series, provided that the following
conditions shall have been satisfied:
(1) the Company has deposited or caused to be irrevocably
deposited (except as provided in Section 402(c) hereof and the last
paragraph of Section 1003 hereof) with the Trustee (specifying that
each deposit is pursuant to this Section 1009) as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of the Securities of such series, (i) money in
the currency or units of currency in which such Securities are payable
in an amount, or (ii) (except as provided in a supplemental indenture
with respect to such series) if Securities of such series are not
subject to repurchase at the option of Holders, (A) U.S. Government
Obligations (denominated in the same currency or units of currency in
which such Securities are payable) which through the payment of
interest and principal in respect thereof in accordance with their
terms will provide not later than one day before the due date of any
payment referred to in clause (x) or (y) of this subparagraph (1) money
in an amount, or (B) a combination thereof, in each case sufficient, in
the opinion of a nationally recognized firm of independent certified
public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which the Trustee
shall be instructed to apply to pay and discharge, (x) the principal of
(and premium, if any) and each installment of principal (and premium,
if any) and interest, if any, on the Outstanding Securities of such
series on the Stated Maturity of such principal or installment of
principal or interest or to and including the Redemption Date
irrevocably designated by the Company pursuant to subparagraph (4) of
this Section 1009
53
<PAGE>
and (y) any mandatory sinking fund payments applicable to the
Securities of such series on the day on which payments are due and
payable in accordance with the terms of the Indenture and of the
Securities of such series;
(2) no Event of Default or event which with notice or lapse of
time would become an Event of Default (including by reason of such
deposit) with respect to the Securities of such series shall have
occurred and be continuing on the date of such deposit;
(3) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect (i) that Holders of the Securities of such series
will not recognize income, gain, loss, or expense for Federal income
tax purposes as a result of such deposit and defeasance of certain
obligations and will take into account all items of income, gain, loss
or expense with respect to the Securities at the same time and in the
same manner as if such deposit and defeasance had not taken place; (ii)
that such provision would not cause any outstanding Securities of such
series then listed on any national securities exchange to be delisted
as a result thereof; and (iii) that the defeasance trust is not, or is
registered as, an investment company under the Investment Company Act
of 1940;
(4) if the Company has deposited or caused to be deposited money
or U.S. Government Obligations to pay or discharge the principal of
(and premium, if any) and interest, if any, on the Outstanding
Securities of a series to and including a Redemption Date on which all
of the Outstanding Securities of such series are to be redeemed, such
Redemption Date shall be irrevocably designated by a Board Resolution
delivered to the Trustee on or prior to the date of deposit of such
money or U.S. Government Obligations, and such Board Resolution shall
be accompanied by an irrevocable Company Request that the Trustee give
notice of such redemption in the name and at the expense of the Company
not less than 30 nor more than 60 days prior to such Redemption Date in
accordance with Section 1104 hereof; and
(5) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of the Securities have been complied with.
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 Section 801 or in Sections 1004 to
1007, inclusive, hereof, with respect to the Securities of any series if before
the time for such compliance the Holders of at least a majority in aggregate
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.
SECTION 1011. Further Assurances.
The Company shall, at its own cost and expense, execute and
deliver to the Trustee all such other documents, instruments and agreements and
do all such other acts and things as may be reasonably required, in the opinion
of the Trustee, to enable the Trustee to exercise and enforce its rights under
this Indenture and under the documents, instruments and agreements required
under this Indenture and to carry out the intent of this Indenture.
54
<PAGE>
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 hereof for Securities of any
series) in accordance with this Article Eleven.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
authorized by a Board Resolution and evidenced by an Officers' Certificate. 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 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 prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, or pursuant to an election by the Company which is subject to a
condition specified in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction 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 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.
Securities shall be excluded from eligibility for selection for
redemption if they are identified by registration and certificate number in a
written statement signed by an authorized officer of the Company and delivered
to the Security Registrar at least 60 days prior to the Redemption Date as being
owned of record and beneficially by, and not pledged or hypothecated by either
(a) the Company or (b) an entity specifically identified in such written
statement which is an Affiliate of the Company.
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 by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
55
<PAGE>
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,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the
case.
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 hereof) 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 on, all the
Securities which are to be redeemed on that date (to the extent that such
amounts are not already on deposit at such time in accordance with the
provisions of Sections 401, 403 or 1009 hereof).
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, 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 and unpaid interest) such Securities shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance with said notice,
such Security shall be paid by the Company at the Redemption Price, together
with accrued and unpaid interest to the Redemption Date; provided, however, that
installments of interest whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section 307
hereof.
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 (including any Global 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, 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, of any authorized denomination as requested by
56
<PAGE>
such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered; provided,
that if a Global Security is so surrendered, the new Global Security shall be in
a denomination equal to 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 retirement of Securities of a series except as otherwise specified
as contemplated by Section 301 hereof 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 hereof. 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.
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Company may at its
option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Company or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Company and delivered to the Trustee for
cancellation pursuant to Section 309 hereof, (b) receive credit for optional
sinking fund payments (not previously so credited) made pursuant to this Section
1202, or (c) receive credit for Securities of such series (not previously so
credited) redeemed by the Company through any optional redemption provision
contained in the terms of such series. Securities so delivered or credited shall
be received or credited by the Trustee at the sinking fund Redemption Price
specified in such Securities.
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 (a) the amount of the next ensuing sinking fund payment
for that series pursuant to the terms of that series, (b) whether or not the
Company intends to exercise its right, if any, to make an optional sinking fund
payment with respect to such series on the next ensuing sinking fund payment
date and, if so, the amount of such optional sinking fund payment, and (c) 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 hereof, and will also deliver
to the Trustee any Securities to be so delivered. Such written statement shall
be irrevocable and upon its receipt by the Trustee the Company shall become
unconditionally obligated to make all the cash payments or payments therein
referred to, if any, on or before the next succeeding sinking fund payment date.
Failure of the Company, on or before any such 60th day, to deliver such written
statement and Securities specified in this paragraph, if any, shall not
constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Company (i) that the mandatory sinking fund payment
for such series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of such
series in respect therefor and (ii) that the Company will make no optional
sinking fund payment with respect to such series as provided in this Section
1203.
57
<PAGE>
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 hereof 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 hereof. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 1105, 1106 and 1107 hereof.
The Trustee shall not redeem or cause to be redeemed any Security
of a series with sinking fund moneys or mail any notice of redemption of
Securities of such series by operation of the sinking fund during the
continuance of a default in payment of interest with respect to Securities of
that series or an Event of Default with respect to the Securities of that series
except that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Company a sum
sufficient for such redemption. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such default or Event of Default,
shall occur, and any moneys thereafter paid into the sinking fund, shall, during
the continuance of such default or Event of Default, be deemed to have been
collected under Article Five and held for the payment of all such Securities. In
case such Event of Default shall have been waived as provided in Section 513
hereof or the default or Event of Default cured on or before the 60th day
preceding the sinking fund payment date, such moneys shall thereafter be applied
on the next succeeding sinking fund payment date in accordance with this Section
1203 to the redemption of such Securities.
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 1301. 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.
58
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
[Seal] CENTRAL POWER AND LIGHT COMPANY
By
-------------------------------
Name:
Title:
Attest:
- -------------------------
Name:
Title: Secretary
[Seal] THE BANK OF NEW YORK,
as Trustee
By
-------------------------------
Name:
Title:
Attest:
- -------------------------
Name:
Title:
59
<PAGE>
STATE OF NEW YORK)
: ss.:
COUNTY OF NEW YORK)
On the ____ day of __________, 1998, before me personally came
_______________________, to me known, who, being by me duly sworn, did depose
and say that he is a ______________ of Central Power and Light Company, one of
the corporations described in and which executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
-----------------------------
STATE OF NEW YORK)
: ss.:
COUNTY OF NEW YORK)
On the ____ day of ___________, 1998, before me personally came
____________, to me known, who, being by me duly sworn, did depose and say that
he is a ______________ of The Bank of New York, a New York banking corporation,
one of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation, and that he signed his name thereto
by like authority.
-----------------------------
60
<PAGE>
Exhibit 5
Milbank, Tweed, Hadley & McCloy
1 Chase Manhattan Plaza
New York, New York 10005
November 18, 1998
Central Power and Light Company
539 North Carancahua Street
Corpus Christi, Texas 78401-2802
Re: Central Power and Light Company
Senior Notes
Ladies and Gentlemen:
We are acting as special counsel for Central Power and Light
Company, a Texas corporation (the "Company"), in connection with the proposed
public offering from time to time of up to $350,000,000 aggregate principal
amount of the Company's Senior Notes (the "Senior Notes"), to be issued in one
or more series pursuant to a Senior Note Indenture (the "Senior Note
Indenture"), proposed to be entered into between the Company and The Bank of New
York, as amended by one or more Supplemental Indentures to be entered into in
connection with the creation and issuance of each series of Senior Notes (each,
a "Supplemental Indenture"). In connection with the proposed offering, the
Company proposes to file a registration statement on Form S-3 (the "Registration
Statement") with the Securities and Exchange Commission for the purpose of
registering the Senior Notes under the Securities Act of 1933, as amended, for
sale pursuant to one or more underwriting or similar agreements (each, an
"Underwriting Agreement").
We have examined originals, or copies certified to our
satisfaction, of such corporate records of the Company, certificates of public
officials, certificates of officers and representatives of the Company and other
documents as we have deemed necessary as a basis for the opinions hereinafter
expressed. In our examination we have assumed the genuineness of all signatures
and the authenticity of all documents submitted to us as originals and the
conformity with the originals of all documents submitted to us s copies. As to
various questions of fact material to such opinions we have, when relevant facts
were not independently established, relied upon certifications by officers of
the Company and other appropriate persons and statements contained in the
Registration Statement.
Based on the foregoing, and having regard to legal considerations
which we deem relevant, we are of the opinion that when the Senior Note
Indenture is duly authorized, executed and delivered, and when the Supplemental
Indenture with respect to a series of Senior Notes has been duly authorized,
executed and delivered, and when the Senior Notes of such series have been duly
authorized, executed, authenticated and issued in accordance with the terms of
the Senior Note Indenture and the applicable Supplemental Indenture and
delivered against payment
<PAGE>
therefor in accordance with the terms of the applicable Underwriting Agreement,
the Senior Notes of such series will constitute legal, valid and binding
obligations of the Company, entitled to the benefits of, and subject to the
provisions of, the Senior Note Indenture and the applicable Supplemental
Indenture, except (a) as may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws of general applicability
affecting the enforcement of creditors' rights, and (b) that such enforceability
may be limited by the application of general principles of equity (regardless of
whether considered in a proceeding in equity or at law), including without
limitation (i) the possible unavailability of specific performance, injunctive
relief or any other equitable remedies and (ii) concepts of materiality,
reasonableness, good faith and fair dealing.
We do not express any opinion as to matters governed by any laws
other than the laws of the State of New York and the Federal laws of the United
States of America.
We hereby consent to the reference to us under the heading "Legal
Opinions" in the Prospectus constituting a part of the Registration Statement
and to the filing of this opinion as Exhibit 5 to the Registration Statement.
Very truly yours,
/s/ Milbank, Tweed, Hadley & McCloy
RBW/DBB, Jr.
2
<PAGE>
Exhibit 23 (a)
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of Central Power and Light Company on
Form S-3 of our report dated February 16, 1998 incorporated by reference in the
Annual Report on Form 10-K of Central Power and Light Company for the year ended
December 31, 1997, and to the reference to us under the headings "Selected
Financial Information" and "Experts" in the Prospectus, included in or made a
part of this Registration Statement.
/s/ Arthur Andersen LLP
November 18, 1998
<PAGE>
EXHIBIT 25
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
CENTRAL POWER AND LIGHT COMPANY
(Exact name of obligor as specified in its charter)
Texas 74-0550600
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
539 North Carancahua Street
Corpus Christi, Texas 78401-2802
(Address of principal executive offices) (Zip code)
----------------------
Senior Notes
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 18th day of November, 1998.
THE BANK OF NEW YORK
By: /s/ THOMAS C. KNIGHT
--------------------------------
Name: THOMAS C. KNIGHT
Title: ASSISTANT VICE PRESIDENT
<PAGE>
EXHIBIT 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1998,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin ................. $ 7,301,241
Interest-bearing balances .......... 1,385,944
Securities:
Held-to-maturity securities ........ 1,000,737
Available-for-sale securities ...... 4,240,655
Federal funds sold and Securities pur-
chased under agreements to resell... 971,453
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................38,788,269
LESS: Allowance for loan and
lease losses ..............632,875
LESS: Allocated transfer risk
reserve..........................0
Loans and leases, net of unearned
income, allowance, and reserve 38,155,394
Assets held in trading accounts ...... 1,307,562
Premises and fixed assets (including
capitalized leases) ................ 670,445
Other real estate owned .............. 13,598
Investments in unconsolidated
subsidiaries and associated
companies .......................... 215,024
Customers' liability to this bank on
acceptances outstanding ............ 974,237
Intangible assets .................... 1,102,625
Other assets ......................... 1,944,777
-----------
Total assets ......................... $59,283,692
===========
LIABILITIES
Deposits:
In domestic offices ................ $26,930,258
Noninterest-bearing ......11,579,390
Interest-bearing .........15,350,868
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 16,117,854
Noninterest-bearing .........187,464
Interest-bearing .........15,930,390
Federal funds purchased and Securities
sold under agreements to repurchase. 2,170,238
Demand notes issued to the U.S.
Treasury ........................... 300,000
Trading liabilities .................. 1,310,867
Other borrowed money:
With remaining maturity of one year
or less .......................... 2,549,479
With remaining maturity of more than
one year through three years...... 0
With remaining maturity of more than
three years ...................... 46,654
Bank's liability on acceptances exe-
cuted and outstanding .............. 983,398
Subordinated notes and debentures .... 1,314,000
Other liabilities .................... 2,295,520
-----------
Total liabilities .................... 54,018,268
===========
EQUITY CAPITAL
Common stock ......................... 1,135,284
Surplus .............................. 731,319
Undivided profits and capital
reserves ........................... 3,385,227
Net unrealized holding gains
(losses) on available-for-sale
securities ......................... 51,233
Cumulative foreign currency transla-
tion adjustments ................... (37,639)
-----------
Total equity capital ................. 5,265,424
===========
Total liabilities and equity
capital ............................ $59,283,692
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
)
J. Carter Bacot )
Thomas A. Renyi ) Directors
Alan R. Griffith )
)
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