SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM 8-A
FOR REGISTRATION OF CERTAIN
CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
----------------
THE CINCINNATI GAS & ELECTRIC COMPANY
(Exact name of registrant as specified in its charter)
OHIO 31-0240030
(State of Incorporation (I.R.S. Employer
or Organization) Identification No.)
139 East Fourth Street
CINCINNATI, OHIO 45202
(Address of principal (Zip Code)
executive offices)
Registrant's telephone number, including area code: 513-381-2000
----------------
Securities Being Registered Pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
------------------- ------------------------------
8.28% Junior Subordinated New York Stock Exchange
Deferrable Interest
Debentures Due 2025
If this Form relates to the registration of a class of debt securities
and is effective upon filing pursuant to General Instruction A.(c)(1),
please check the following box. [ X ]
If this Form relates to the registration of a class of debt securities
and is to become effective simultaneously with the effectiveness of a
concurrent registration statement under the Securities Act of 1933
pursuant to General Instruction A.(c)(2), please check the following box.
[ ]
Securities to be registered pursuant to Section 12(g) of the Act:
None
(Title of class)
----------------
The Commission is requested to send copies of all notices, orders
and communications in connection with this registration statement to:
Ms. Cheryl M. Foley James R. Lance
Vice President, General Counsel Manager - Corporate Finance
and Corporate Secretary CINergy Corp.
CINergy Corp. 139 East Fourth Street
139 East Fourth Street Cincinnati, Ohio 45202
Cincinnati, Ohio 45202
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Description of Registrant's Securities to be Registered
- ------- -------------------------------------------------------
A description of the 8.28% Junior Subordinated Deferrable
Interest Debentures Due 2025 (Debentures) registered hereunder is
under the heading "Certain Terms of the Offered Junior Subordinated
Debentures" in the prospectus supplement dated June 28, 1995
(Prospectus Supplement) and under the heading "Description of Debt
Securities" in the prospectus dated June 7, 1995 (Prospectus), in
each case as filed with the Securities and Exchange Commission
(Commission) pursuant to Rule 424(b)(2) under the Securities Act of
1933, as amended (Securities Act), on June 29, 1995. The Prospectus
forms a part of registration statement No. 33-58967 (Registration
Statement). The Registration Statement was filed with the Commission
on May 1, 1995, and was declared effective by the Commission on
May 3, 1995. The aforementioned descriptions in the Prospectus and
the Prospectus Supplement are incorporated by reference into this
Item 1.
Item 2. Exhibits
- ------- --------
1 Amended Articles of Incorporation of The
Cincinnati Gas & Electric Company (CG&E)
effective January 24, 1994 (filed as an Exhibit
to, and incorporated by reference from, CG&E's
Annual Report on Form 10-K for the year ended
December 31, 1993, Commission File No. 1-1232).
2 Regulations of CG&E as amended, adopted June 16,
1995.
3 Indenture between CG&E and The Fifth Third Bank
(as Trustee) dated as of May 15, 1995.
4 Second Supplemental Indenture Between CG&E and
The Fifth Third Bank (as Trustee) dated as of
June 30, 1995.
5 Specimen of 8.58% Junior Subordinated Deferrable
Interest Debenture Due 2025 (included under
Article Two - Form of the Debentures in the
Second Supplemental Indenture filed as
Exhibit 4).
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this
registration statement to be signed on its behalf by the undersigned,
thereto duly authorized.
THE CINCINNATI GAS & ELECTRIC COMPANY
By: /s/ William L. Sheafer
-------------------------------
William L. Sheafer, Treasurer
July 24, 1995
EXHIBIT 2
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THE CINCINNATI GAS & ELECTRIC COMPANY
----------
REGULATIONS
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ADOPTED BY SHAREHOLDERS, APRIL 28, 1948
AS AMENDED, APRIL 23, 1975
AS AMENDED, APRIL 23, 1980
AS AMENDED, APRIL 17, 1986
AS AMENDED, APRIL 16, 1987
AS AMENDED, OCTOBER 24, 1994
AS AMENDED, MARCH 3, 1995
AS AMENDED, JUNE 16, 1995
=================================================================
TABLE OF CONTENTS
REGULATIONS
THE CINCINNATI GAS & ELECTRIC COMPANY
ARTICLE I
Offices Page
Section 1. Offices.......................................
ARTICLE II
Shareholders' Meetings
Section 1. Annual Meeting................................
2. Notice of Annual Meeting......................
3. Special Meetings..............................
4. Notice of Special Meeting.....................
5. Waiver of Notice..............................
6. Quorum........................................
7. Voting........................................
ARTICLE III
Board of Directors
Section 1. Number of Directors, Tenure, Vacancies,
Nomination.................................
2. Annual Organization Meeting...................
3. Regular Meetings..............................
4. Special Meetings..............................
5. Notice of Meetings............................
6. Quorum........................................
7. Compensation of Directors.....................
8. Executive Committee...........................
9. Other Committees..............................
ARTICLE IV
Officers
Section 1. Officers.....................................
2. Subordinate Officers.........................
3. Chairman of the Board........................
4. Vice Chairman................................
5. Chief Executive Officer......................
6. Chief Operating Officer......................
7. President....................................
8. Vice Presidents..............................
9.(a). Secretary ...................................
(b). Assistant Secretaries........................
10.(a).Treasurer ...................................
(b).Assistant Treasurers.........................
11.(a).Comptroller..................................
(b).Assistant Comptrollers.......................
ARTICLE V
Indemnification of Directors, Officers,
Employees, and Agents
Section 1. Indemnification of Directors, Officers,
Employees, and Agents......................
2. Advances for Litigation Expenses may be Made.
3. Indemnification Nonexclusive.................
4. Indemnity Insurance..........................
5. Payment of Expenses Not Limited..............
6. Survival of Indemnification..................
ARTICLE VI
Capital Stock
Section 1. Form and Execution of Certificates...........
2. Transfer of Shares...........................
3. Appointment of Transfer Agents and Registrars
4. Closing of Transfer Books or Taking Record
of Shareholders............................
5. Lost Stock Certificates......................
ARTICLE VII
Dividends
Section 1. Dividends....................................
ARTICLE VIII
Fiscal Year
Section 1. Fiscal Year..................................
ARTICLE IX
Contracts, Checks, Notes, etc.
Section 1. Contracts, Checks, Notes, etc................
ARTICLE X
Notice and Waiver of Notice
Section 1. Notice and Waiver of Notice..................
ARTICLE XI
Corporate Seal
Section 1. Corporate Seal...............................
ARTICLE XII
Amendment
Section 1. Amendment....................................
<PAGE>
REGULATIONS
OF
THE CINCINNATI GAS & ELECTRIC COMPANY
ARTICLE I
Offices
SECTION 1. OFFICES. The location of the Corporation s
principal office shall be in the City of Cincinnati, County of
Hamilton, State of Ohio. The Corporation may, in addition to its
principal office in the State of Ohio, establish and maintain an
office or offices elsewhere in Ohio and in such other states and
places as the Board of Directors may from time to time find
necessary of desirable, at which the books, documents and papers of
the Corporation may be kept.
ARTICLE II
Shareholders' Meetings
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders may be held either within or without the State of
Ohio, at such place, time, and date designated by the Board of
Directors, for the election of directors, the consideration of the
reports to be laid before the meeting and the transaction of such
other business as may be brought before the meeting.
SECTION 2. NOTICE OF ANNUAL MEETING. Notice of the annual
meeting shall be given in writing to each shareholder entitled to
vote thereat, at such address as appears on the records of the
Corporation at least ten (10) days and not more than forty-five
(45) days prior to the meeting.
SECTION 3. SPECIAL MEETINGS. Special meetings of the
shareholders may be called at any time by the Chairman, Vice
Chairman, Chief Executive Officer, Chief Operating Officer, or
President, or by a majority of the members of the Board of
Directors acting with or without a meeting or by the persons who
hold in the aggregate fifty (50) percent of all the shares
outstanding and entitled to vote thereat, upon notice in writing,
stating the time, place and purpose of the meeting. Business
transacted at all special meetings shall be confined to the objects
stated in the call.
SECTION 4. NOTICE OF SPECIAL MEETING. Notice of a special
meeting, in writing, stating the time, place and purpose thereof,
shall be given to each shareholder entitled to vote thereat, at
least twenty (20) days and not more than forty-five (45) days prior
to the meeting.
SECTION 5. WAIVER OF NOTICE. Notice of the time, place and
purpose of any meeting of shareholders may be waived by the written
assent of every shareholder entitled to notice, filed with or
entered upon the records of the meeting, either before or after the
holding thereof.
SECTION 6. QUORUM. The holders of shares entitling them to
exercise a majority of the voting power, or, if the vote is to be
taken by classes, the holders of shares of each class entitling them
to exercise a majority of the voting power of that class,
present in person or by proxy at any meeting of the shareholders,
unless otherwise specified by law, shall constitute a quorum.
If, however, at any meeting of the shareholders, a quorum
shall fail to attend in person or by proxy, a majority in interest
of the shareholders attending in person or by proxy at the time and
place of such meeting may adjourn the meeting from time to time
without further notice, other than by announcement at the meeting
at which such adjournment is taken, until a quorum is present. At
any such adjourned meeting at which a quorum shall be present, any
business may be transacted which might have been transacted at the
meeting originally called.
SECTION 7. VOTING. At each meeting of the shareholders,
except as otherwise provided by statute or the Articles of
Incorporation, every holder of record of stock of the class or
classes entitled to vote at such meeting shall be entitled to vote
in person or by proxy appointed by an instrument in writing
subscribed by such shareholder and bearing a date not more than
eleven (11) months prior to said meeting unless some other definite
period of validity shall be expressly provided therein.
Each shareholder shall have one (1) vote for each share of
stock having voting power, registered in his or her name on the
books of the Corporation, at the date fixed for determination of
persons entitled to vote at the meeting or, if no date has been
fixed, then at the date next preceding the day of the meeting.
Cumulative voting shall be permitted only as expressly required by
statute.
At any meeting of shareholders, a list of shareholders
entitled to vote, alphabetically arranged, showing the number and
classes of shares held by each on the date fixed for closing the
books against transfers or the record date fixed as hereinbefore
provided (or if no such date has been fixed, then on the date of
the meeting) shall be produced on the request of any shareholder,
and such list shall be prima facie evidence of the ownership of
shares and of the right of shareholders to vote, when certified by
the Secretary or by the agent of the Corporation having charge of
the transfer of shares.
ARTICLE III
Board of Directors
SECTION 1. NUMBER OF DIRECTORS, TENURE, VACANCIES,
NOMINATION. Except where the law, the Articles, or these
Regulations require action to be authorized or taken by
shareholders, all of the authority of the Corporation shall be
exercised by or under the direction of a Board of Directors.
Subject to any special right of the holders of any capital stock
having a preference over Common Stock as to dividends or upon
liquidation issued under the Articles of Incorporation, the Board
of Directors shall consist of not less than three (3) directors and
not more than seven (7) directors. If the number of directors is
three (3) or four (4), at least one (1) director shall also be
serving as an officer or director of CINergy Corp. If the number
of directors is five (5) or six (6), at least two (2) directors
shall also be serving as an officer or director of CINergy Corp.
If the number of directors is seven (7), at least three (3) directors
shall also be serving as an officer or director of
CINergy Corp. The number of directors may be determined by vote of
the three-fourths of the directors in office. Any such
determination made by the Board of Directors shall continue in
effect unless and until changed by the Board of Directors, but no
such change shall affect the term of any director then in office.
Subject to any special right of the holders of any capital
stock having a preference over Common Stock as to dividends or upon
liquidation issued under the Articles of Incorporation, only
persons who are nominated in accordance with the following
procedures shall be eligible for election as directors.
Nominations of persons as candidates for election as directors of
the Corporation may be made at a meeting of shareholders (i) by or
at the direction of the Board of Directors or by any committee or
person appointed by the Board of Directors or (ii) by any
shareholder of the Corporation entitled to vote for the election of
directors at such meeting who complies with the notice procedures
set forth herein. Any nomination other than those governed by
clause (i) of the preceding sentence shall be made pursuant to
timely notice in writing to the Secretary of the Corporation. To
be timely, a shareholder's notice shall be delivered to or mailed
and received at the principal office of the Corporation not less
than 50 days prior to the meeting; provided, however, that if less
than 60 days notice or prior public disclosure of the date of the
meeting is given to shareholders or made public, notice by the
shareholder to be timely must be so received not later than the
close of business on the 10th day following the day on which such
notice of the date of the meeting was mailed or such public
disclosure was made. Such shareholder's notice to the Secretary
shall set forth (a) as to each person whom the shareholder proposes
to nominate for election as director (i) the name, age, business
address, and residence address of such person, (ii) the principal
occupation or employment of such person, (iii) the class and number
of any shares of capital stock of the Corporation which are
beneficially owned by such person, and (iv) any other information
relating to such person that is required to be disclosed in
solicitations for proxies for election of directors pursuant to any
then existing rule or regulation promulgated under the Securities
Exchange Act of 1934, as amended; and (b) as to the shareholder
giving the notice (i) the name and record address of such
shareholder, (ii) the class and number of shares of capital stock
of the Corporation which are beneficially owned by such
shareholder, and (iii) the period of time such shareholder held
such shares. The Corporation may require any proposed nominee to
furnish such other information as may reasonably be required by the
Corporation to determine the eligibility of such proposed nominee
to serve as a director. No person shall be eligible for election
as a director unless nominated as set forth herein.
Commencing at the annual meeting of shareholders held in 1995,
the term of office of the Board of Directors shall be one year.
Subject to any special right of the holders of any capital
stock having a preference over Common Stock as to dividends or upon
liquidation issued under the Articles of Incorporation and
notwithstanding the provisions of Article III, Section 6 of these
Regulations, the remaining directors, whether or not constituting
a majority of the whole authorized number of directors, may, by the
vote of a majority of their number, fill any vacancy in the Board,
however arising, for the unexpired term thereof. Subject to any
special right of the holders of any capital stock having a
preference over Common Stock as to dividends or upon liquidation
issued under the Articles of Incorporation, any person elected to
fill a vacancy in the Board shall hold office until the expiration
of the term of office and until his successor is elected and
qualified.
Notwithstanding the foregoing, whenever the holders of the
Cumulative Preferred Stock of all series, voting separately as a
class and regardless of series, shall have the right to elect a
majority of the Board of Directors as provided in the Articles of
Incorporation, the election, term of office, filling of vacancies
and other features of all directorships shall be governed by the
terms of the Articles of Incorporation, and whenever the holders of
any other capital stock having a preference over Common Stock as to
dividends or upon liquidation issued under the Articles of
Incorporation shall have the right, voting separately by class or
series, to elect certain directors at an annual or special meeting
of shareholders, the election, term of office, filling of vacancies
and other features of such directorships shall be governed by the
terms of the Articles of Incorporation creating such capital stock.
Subject to any special right of the holders of any capital
stock having a preference over Common Stock as to dividends or upon
liquidation issued under the Articles of Incorporation and to
applicable law, any director or directors of the Corporation may be
removed without assigning any cause only by an affirmative vote of
the holders of at least 80% of the outstanding shares of all
classes of capital stock of the Corporation entitled to vote for
directors at the annual meeting of shareholders or at any special
meeting of shareholders called for this purpose.
SECTION 2. ANNUAL ORGANIZATION MEETING. Immediately after
each annual election, the newly-elected directors may meet
forthwith (either within or without the State of Ohio) for the
purpose of organization, the election of officers and the
transaction of other business. If a majority of the directors be
then present no prior notice of such meeting shall be required to
be given. The place and time of such first meeting may, however,
be fixed by written consent of all directors, or by three (3) days
written notice given by the Secretary of the Corporation.
SECTION 3. REGULAR MEETINGS. Regular meetings of the Board
of Directors may be held at any reasonable time and place (either
within or without the State of Ohio), and upon such notice, as the
Board of Directors may from time to time determine.
SECTION 4. SPECIAL MEETINGS. Special meetings of the Board
of Directors may be called by the Chairman, Vice Chairman, Chief
Executive Officer, Chief Operating Officer, or President, or by
the written request of three-fourths of the members of the Board of
Directors.
SECTION 5. NOTICE OF MEETINGS. Notice of meetings shall be
given to each director in accordance with Article X, Section 1, of
these Regulations.
SECTION 6. QUORUM. A majority of the Board of Directors
shall constitute a quorum for the transaction of business, but a
majority of those present at the time and place of any meeting,
although less than a quorum, may adjourn the same from time to time,
without notice, until a quorum be had. The act of a majority
of the directors present at any such meeting at which a quorum is
present shall be the act of the Board of Directors.
SECTION 7. COMPENSATION OF DIRECTORS. Each director of the
Corporation (other than directors who are salaried officers of the
Corporation or any of its affiliates) shall be entitled to receive
as compensation for services such amounts as may be determined from
time to time by the Board of Directors in form either in fees for
attendance at the meeting of the Board of Directors, or by payment
at the rate of a fixed sum per month, or both. The same payment
may also be made to anyone other than a director officially called
to attend any such meeting.
SECTION 8. EXECUTIVE COMMITTEE. The Board of Directors
shall, by resolution adopted by the affirmative vote of a majority
of the whole Board, designate three (3) or more directors who are
serving as officers of the Corporation or CINergy Corp., at the
time of their appointment to the Executive Committee, to constitute
an Executive Committee. Once established, the Board of Directors
may abolish the Executive Committee by the affirmative vote of
three-fourths of the whole Board. The Board of Directors may, by
the affirmative vote of a majority of the whole Board, to the
extent not prohibited by law, delegate to such committee the power
to authorize the seal of the Corporation to be affixed to all
papers which may require it, to declare dividends or make
distributions of profits, and to exercise in the intervals between
the meetings of the Board of Directors the powers of the Board in
the management of the business and affairs of the Corporation.
Once delegated, the powers of the Executive Committee may be
eliminated or restricted by the affirmative vote of three-fourths
of the whole Board. Any member of the Executive Committee may be
removed, with or without cause, upon the affirmative vote of three-
fourths of the whole Board. Any vacancies on the Executive
Committee shall be filled by the affirmative vote of three-fourths
of the whole Board.
The Executive Committee may act by a majority of its members
at a meeting or by a writing signed by all of its members.
Non-employee members of such Executive Committee shall be
entitled to receive such fees and compensation as the Board of
Directors may determine.
SECTION 9. OTHER COMMITTEES. By the affirmative vote of
three-fourths of the whole Board, the Board of Directors may also
appoint such other standing or temporary committees from time to
time as they may see fit, delegating to such committees all or any
part of their own powers. The members of such committees shall be
entitled to receive such fees as the Board may determine.
ARTICLE IV
Officers
SECTION 1. OFFICERS. The officers of the Corporation shall
consist of a Chairman of the Board, a Chief Executive Officer, a
President, a Secretary, a Treasurer, a Comptroller, and may consist
of a Vice Chairman, a Chief Operating Officer, one or more Vice
Presidents, one or more Assistant Secretaries, one or more
Assistant Treasurers, or one or more Assistant Comptrollers, all of
whom shall be elected by the Board of Directors, and shall hold
office for one year and until their successors are chosen and
qualified.
Any two of the offices of Vice President, Secretary and
Treasurer may be combined in one person. All vacancies occurring
among any of the above offices shall be filled by the Board of
Directors. Any officer may be removed with or without cause by the
affirmative vote of a majority of the number of Directors at any
meeting of the Board of Directors.
SECTION 2. SUBORDINATE OFFICERS. The Board of Directors may
appoint such other officers and agents with such powers and duties
as they shall deem necessary.
SECTION 3. THE CHAIRMAN OF THE BOARD. The Chairman of the
Board shall be a director and shall preside at all meetings of the
Board of Directors and, in the absence or inability to act of the
Chief Executive Officer, meetings of shareholders and shall,
subject to the Board s direction and control, be the Board s
representative and medium of communication, and shall perform such
other duties as may from time to time be assigned to the Chairman
of the Board by the Board of Directors. The Chairman of the Board
shall direct the long-term strategic planning process of the
Corporation and shall also lend his or her expertise to such other
officers as may be requested from time to time by such officers.
The Chairman shall be a member of the Executive Committee.
SECTION 4. THE VICE CHAIRMAN. The Vice Chairman of the
Board, if there be one, shall be a director and shall preside at
meetings of the Board of Directors in the absence or inability to
act of the Chairman of the Board or meetings of shareholders in the
absence or inability to act of the Chief Executive Officer and the
Chairman of the Board. The Vice Chairman shall perform such other
duties as may from time to time be assigned to him or her by the
Board of Directors. The Vice Chairman shall be a member of the
Executive Committee.
SECTION 5. THE CHIEF EXECUTIVE OFFICER. The Chief Executive
Officer shall be a director and shall preside at all meetings of
the shareholders, and, in the absence or inability to act of the
Chairman of the Board and the Vice Chairman, at all meetings of the
Board of Directors. The Chief Executive Officer shall submit a
report of the operations of the Corporation for the fiscal year to
the shareholders at their annual meeting and from time to time
shall report to the Board of Directors all matters within his or
her knowledge which the interests of the Corporation may require be
brought to their notice. The Chief Executive Officer shall be the
chairman of the Executive Committee and ex officio a member of all
standing committees.
SECTION 6. THE CHIEF OPERATING OFFICER. The Chief Operating
Officer of the Corporation, if there be one, shall have general and
active management and direction of the affairs of the Corporation,
shall have supervision of all departments and of all officers of
the Corporation, shall see that the orders and resolutions of the
Board of Directors and of the Executive Committee are carried into
effect, and shall have the general powers and duties of supervision
and management usually vested in the office of a Chief Operating
Officer of a corporation. Unless otherwise provided, all corporate
officers and functions shall report directly to the Chief Operating
Officer, if there be one, or, if not, to the Chief Executive
Officer.
SECTION 7. THE PRESIDENT. The President shall have such
duties as may be delegated by the Board of Directors, Chief
Executive Officer or Chief Operating Officer.
SECTION 8. THE VICE PRESIDENTS. The Vice Presidents shall
perform such duties as the Board of Directors shall, from time to
time, require. In the absence or incapacity of the President, the
Vice President designated by the Board of Directors or Executive
Committee, Chief Executive Officer, Chief Operating Officer, or
President shall exercise the powers and duties of the President.
SECTION 9(A). THE SECRETARY. The Secretary shall attend all
meetings of the Board of Directors, of the Executive Committee and
of the shareholders and act as clerk thereof and record all votes
and the minutes of all proceedings in a book to be kept for that
purpose, and shall perform like duties for the standing committees
when required.
The Secretary shall keep in safe custody the seal of the
Corporation, and, whenever authorized by the Board of Directors or
the Executive Committee, affix the seal to any instrument requiring
the same.
The Secretary shall see that proper notice is given of all
meetings of the shareholders of the Corporation and of the Board of
Directors and shall perform such other duties as may be prescribed
from time to time by the Board of Directors, Chief Executive
Officer, Chief Operating Officer or President.
(B) ASSISTANT SECRETARIES. At the request of the Secretary,
or in his or her absence or inability to act, the Assistant
Secretary or, if there be more than one, the Assistant Secretary
designated by the Secretary, shall perform the duties of the
Secretary and when so acting shall have all the powers of and be
subject to all the restrictions of the Secretary. The Assistant
Secretaries shall perform such other duties as may from time to
time be assigned to them by the Board of Directors, Chief Executive
Officer, Chief Operating Officer, President, or Secretary.
SECTION 10(A). THE TREASURER. The Treasurer shall be the
financial officer of the Corporation, shall keep full and accurate
accounts of all collections, receipts and disbursements in books
belonging to the Corporation, shall deposit all moneys and other
valuables in the name and to the credit of the Corporation, in such
depositories as may be directed by the Board of Directors, shall
disburse the funds of the Corporation as may be ordered by the
Board of Directors, Chief Executive Officer, Chief Operating
Officer, or President, taking proper vouchers therefor, and shall
render to the Chief Executive Officer, Chief Operating Officer, or
President, and directors at all regular meetings of the Board,w or
whenever they may require it, and to the annual meeting of the
shareholders, an account of all his or her transactions as
Treasurer and of the financial condition of the Corporation.
The Treasurer shall also perform such other duties as the
Board of Directors may from time to time require.
If required by the Board of Directors, the Treasurer shall give
the Corporation a bond in a form and in a sum with surety
satisfactory to the Board of Directors for the faithful performance
of the duties of his or her office and the restoration to the
Corporation in the case of his or her death, resignation or removal
from office of all books, papers, vouchers, money and other
property of whatever kind in his or her possession belonging to the
Corporation.
(B) ASSISTANT TREASURERS. At the request of the Treasurer, or
in his or her absence or inability to act, the Assistant Treasurer
or, if there be more than one, the Assistant Treasurer designated
by the Treasurer, shall perform the duties of the Treasurer and
when so acting shall have all the powers of and be subject to all
the restrictions of the Treasurer. The Assistant Treasurers shall
perform such other duties as may from time to time be assigned to
them by the Board of Directors, Chief Executive Officer, Chief
Operating Officer, President, or Treasurer.
SECTION 11(A). THE COMPTROLLER. The Comptroller shall have
control over all accounts and records of the Corporation pertaining
to moneys, properties, materials and supplies. He or she shall
have executive direction over the bookkeeping and accounting
departments and shall have general supervision over the records in
all other departments pertaining to moneys, properties, materials
and supplies. He or she shall have such other powers and duties as
are incident to the office of Comptroller of a corporation and
shall be subject at all times to the direction and control of the
Board of Directors, Chief Executive Officer, Chief Operating
Officer, President and a Vice President.
(B) ASSISTANT COMPTROLLERS. At the request of the
Comptroller, or in his or her absence or inability to act, the
Assistant Comptroller or, if there be more than one, the Assistant
Comptroller designated by the Comptroller, shall perform the duties
of the Comptroller and when so acting shall have all the powers of
and be subject to all the restrictions of the Comptroller. The
Assistant Comptrollers shall perform such other duties as may from
time to time be assigned to them by the Board of Directors, Chief
Executive Officer, Chief Operating Officer, President, or
Comptroller.
ARTICLE V
Indemnification of Directors, Officers, Employees, and Agents
SECTION 1. INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES,
AND AGENTS.
(A) The Corporation shall indemnify or agree to indemnify any
person who was or is a party or is threatened to be made a party,
to any threatened, pending, or completed action, suit, or
proceeding, whether civil, criminal, administrative, or
investigative, other than an action by or in the right of the
Corporation, by reason of the fact that he is or was a director,
officer, employee, or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, trustee,
officer, employee, or agent of another corporation, domestic or
foreign, nonprofit or for profit, partnership, joint venture,
trust, or other enterprise, against expenses, including attorney's
fees, judgments, fines, and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit, or
proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
Corporation and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit, or proceeding by judgment, order,
settlement, or conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the
person did not act in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
Corporation and, with respect to any criminal action or proceeding,
he had reasonable cause to believe that his conduct was lawful.
(B) The Corporation shall indemnify or agree to indemnify any
person who was or is a party, or is threatened to be made a party,
to any threatened, pending, or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee,
or agent of the Corporation, or is or was serving at the request of
the Corporation as a director, trustee, officer, employee, or agent
of another corporation, domestic or foreign, nonprofit or for
profit, partnership, joint venture, trust, or other enterprise,
against expenses, including attorney's fees, actually and
reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, except that no indemnification shall
be made in respect of any of the following:
(1) Any claim, issue, or matter as to which such person is
adjudged to be liable for negligence or misconduct in the
performance of his duty to the Corporation unless, and only to the
extent that the court of common pleas, or the court in which such
action or suit was brought determines upon application that,
despite the adjudication of liability, but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses as the court of common
pleas or such other court shall deem proper.
(2) Any action or suit in which the only liability asserted
against a director is pursuant to Section 1701.95 of the Ohio
Revised Code.
(C) To the extent that a director, trustee, officer,
employee, or agent has been successful on the merits or otherwise
in defense of any action, suit, or proceeding referred to in the
foregoing paragraphs of this Article, or in defense of any claim,
issue, or matter therein, he shall be indemnified against expenses,
including attorney's fees, actually and reasonably incurred by him
in connection with the action, suit, or proceeding.
(D) Any indemnification under Paragraphs (A) and (B) of
Section 1 of this Article, unless ordered by a court, shall be made
by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director, trustee,
officer, employee, or agent is proper in the circumstances because
he has met the applicable standard of conduct set forth in such
Paragraphs (A) and (B). Such determination shall be made as
follows: (1) by a majority vote of a quorum consisting of directors
of the indemnifying Corporation who were not and are not parties to
or threatened with any such action, suit, or proceeding; (2) if
the quorum described in (D)(1) of this Section is not obtainable or
if a majority vote of a quorum of disinterested directors so directs,
in a written opinion by independent legal counsel other
than an attorney, or a firm having associated with it an attorney,
who has been retained by or who has performed services for the
Corporation or any person to be indemnified within the past five
years; (3) by the shareholders; or (4) by the court of common pleas
or the court in which such action, suit, or proceeding was brought.
Any determination made by the disinterested directors under
(D)(1) of this Section or by independent legal counsel under (D)(2)
of this Section shall be promptly communicated to the person who
threatened or brought the action or suit by or in the right of the
Corporation under (B) of this Section, and within 10 days after
receipt of such notification, such person shall have the right to
petition the court of common pleas or the court in which such
action or suit was brought to review the reasonableness of such
determination.
SECTION 2. ADVANCES FOR LITIGATION EXPENSES MAY BE MADE.
Expenses, including attorney's fees, incurred by a director,
trustee, officer, employee, or agent in defending any action, suit,
or proceeding referred to in Section 1 of this Article, may be paid
by the Corporation as they are incurred in advance of the final
disposition of the action, suit, or proceeding as authorized by the
directors in the specific case upon receipt of an undertaking by or
on behalf of the director, trustee, officer, employee, or agent
to repay such amount, if it ultimately is determined that he is not
entitled to be indemnified by the Corporation.
SECTION 3. INDEMNIFICATION NONEXCLUSIVE. The indemnification
provided by this Article shall not be exclusive of and shall be in
addition to any other rights granted to those seeking
indemnification under these Regulations, any agreement, vote of
shareholders or disinterested directors, or otherwise, both as to
action in his official capacity and as to action in another
capacity while holding such office, and shall continue as to a
person who had ceased to be a director, trustee, officer, employee,
or agent and shall inure to the benefit of the heirs, executors,
and administrators of such a person.
SECTION 4. INDEMNITY INSURANCE. The Corporation may purchase
and maintain insurance or furnish similar protection, including but
not limited to trust funds, letters of credit, or self-insurance,
on behalf of or for any person who is or was a director, officer,
employee, or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, trustee, officer,
employee, or agent of another corporation, domestic or foreign,
nonprofit or for profit, partnership, joint venture, trust, or
other enterprise, against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status
as such, whether or not the Corporation would have the power to
indemnify him against such liability under this Section. Insurance
may be purchased from or maintained with a person in which the
Corporation has a financial interest.
SECTION 5. PAYMENT OF EXPENSES NOT LIMITED. The
indemnification provided by Sections 1 (A) and (B) of this Article
does not limit the payment of expenses as they are incurred,
indemnification, insurance, or other protection that may be
provided pursuant to Sections 2, 3, and 4 of this Article.
Sections 1 (A) and (B) of this Article do not create any obligation
to repay or return payments made by the Corporation pursuant to
Sections 2, 3, or 4 of this Article.
SECTION 6. SURVIVAL OF INDEMNIFICATION. As used in this
Article, references to "Corporation" include all constituent
corporations in a consolidation or merger and the new or surviving
corporation, so that any person who is or was a director, officer,
employee, or agent of such a constituent corporation, or is or was
serving at the request of such constituent corporation as a
director, trustee, officer, employee, or agent of another
corporation, domestic or foreign, nonprofit or for profit,
partnership, joint venture, trust, or other enterprise, shall stand
in the same position under this Article with respect to the new or
surviving corporation as he would if he had served the new or
surviving corporation in the same capacity.
ARTICLE VI
Capital Stock
SECTION 1. FORM AND EXECUTION OF CERTIFICATES. The
certificates for shares of the capital stock of the Corporation
shall be of such form and content, not inconsistent with the law
and the Articles of Incorporation, as shall be approved by the
Board of Directors. The certificates shall be signed by (1) either
the Chairman, Chief Executive Officer, President or a Vice
President, and (2) any one of the following officers: Secretary or
Assistant Secretary, Treasurer or Assistant Treasurer. All
certificates shall be consecutively numbered in each class of
shares. The name and address of the person owning the shares
represented thereby, with the number of shares and the date of
issue, shall be entered on the Corporation s books.
SECTION 2. TRANSFER OF SHARES. Transfer of shares shall be
made upon the books of the Corporation or respective Transfer
Agents designated to transfer each class of stock, and before a new
certificate is issued the old certificates shall be surrendered for
cancellation.
SECTION 3. APPOINTMENT OF TRANSFER AGENTS AND REGISTRARS.
The Board of Directors may appoint one or more transfer agents or
one or more registrars or both, and may require all stock
certificates to bear the signature of either or both. When any
such certificate is signed, by a transfer agent or registrar, the
signatures of the corporate officers and the corporate seal, if
any, upon such certificate may be facsimiles, engraved or printed.
In case any officer designated for the purpose, who has signed
or whose facsimile signature has been used on any such certificate,
shall, from any cause, cease to be such officer before the
certificate has been delivered by the Corporation, the certificate
may nevertheless be adopted by the Corporation and be issued and
delivered as though the person had not ceased to be such officer.
SECTION 4. CLOSING OF TRANSFER BOOKS OR TAKING RECORD OF
SHAREHOLDERS. The Board of Directors may fix a time not exceeding
sixty (60) days preceding the date of any meeting of shareholders
or forty-five (45) days preceding the date of any dividend payment
date or any date for the allotment of rights as a record date for
the determination of the shareholders entitled to notice of such
meeting or to vote thereat or to receive such dividends or rights
as the case may be; or the Board of Directors may close the books of
the Corporation against transfer of shares during the whole or
any part of such period.
SECTION 5. LOST STOCK CERTIFICATES. In the case of a lost
stock certificate, a new stock certificate may be issued in its
place upon proof of such loss, destruction or mutilation and upon
the giving of a satisfactory bond of indemnity to the Corporation
and/or to the transfer agent and registrar of such stock, if any,
in such sum and under such terms as the Board of Directors may
provide.
ARTICLE VII
Dividends
SECTION 1. DIVIDENDS. Dividends may be declared by the Board
of Directors (or the Executive Committee if authority to declare
dividends is delegated to the Executive Committee by the Board of
Directors) and paid in cash, shares, or other property out of the
annual net income to the Corporation or out of its net assets in
excess of its capital, computed in accordance with the state
statute and subject to the conditions and limitations imposed by
the Articles of Incorporation.
No dividends shall be paid to the holders of any class of
shares in violation of the rights of the holders of any other class
of shares.
Before payment of any dividends or making distribution of any
profits, there may be set apart out of the excess of assets
available for dividends such sum or sums as the Board of Directors
(or Executive Committee if the authority to declare dividends or
make distributions is delegated to the Executive Committee) from
time to time in its absolute discretion thinks proper as a reserve
fund for any purpose.
ARTICLE VIII
Fiscal Year
SECTION 1. FISCAL YEAR. The fiscal year of the Corporation
shall begin on the first day of January and terminate on the
thirty-first day of December in each year.
ARTICLE IX
Contracts, Checks, Notes, etc.
SECTION 1. CONTRACTS, CHECKS, NOTES, ETC. All contracts and
agreements authorized by the Board of Directors and all bonds and
notes shall, unless otherwise directed by the Board of Directors or
unless otherwise required by law, be signed by (1) either the
Chairman, Vice Chairman, Chief Executive Officer, Chief Operating
Officer, President, or a Vice President, and (2) any one of the
following officers: Secretary or Assistant Secretary, Treasurer or
Assistant Treasurer. The Board of Directors may by resolution
adopted at any meeting designate officers of the Corporation who
may in the name of the Corporation execute checks, drafts and
orders for the payment of money in its behalf and, in the
discretion of the Board of Directors, such officers may be so
authorized to sign such checks singly without necessity for
counter-signature.
ARTICLE X
Notice and Waiver of Notice
SECTION 1. NOTICE AND WAIVER OF NOTICE. Any notice required
to be given by these Regulations to a director or officer may be
given in writing, personally served or through the United States
Mail, or by telephone, telegram, cablegram or radiogram, and such
notice shall be deemed to be given at the time when the same shall
be thus transmitted. Any notice required to be given by these
Regulations may be waived by the person entitled to such notice.
ARTICLE XI
Corporate Seal
SECTION 1. CORPORATE SEAL. The corporate seal of the
Corporation shall consist of a metallic stamp, circular in form,
bearing in its center the figures "1837" and the words "Seal" and
"Ohio" and on the outer edge the name of the Corporation.
ARTICLE XII
Amendment
SECTION 1. AMENDMENT. These Regulations may be amended or
repealed at any meeting of the shareholders of the Corporation by
the affirmative vote of the holders of record of shares entitling
them to exercise a majority of the voting power on such proposal,
or, without a meeting, by the written consent of the holders of
record of shares entitling them to exercise a two-thirds majority
of the voting power on such proposal.
Notwithstanding the foregoing paragraph, the affirmative vote
of the holders of at least 80% of the outstanding shares of capital
stock of the Corporation entitled to vote thereon shall be required
to amend, alter or repeal, or adopt any provision inconsistent
with, the requirements of Article II, Section 3, Article III,
Section I, or this paragraph of Article XII, Section 1 of these
Regulations, in addition to any requirements of law and any
provisions of the Articles of Incorporation, any Regulations, or
any resolution of the Board of Directors adopted pursuant to the
Articles of Incorporation (and notwithstanding that a lesser
percentage may be specified by law, the Articles of Incorporation,
these Regulations, such resolution, or otherwise).
<PAGE>
EXHIBIT 3
THE CINCINNATI GAS & ELECTRIC COMPANY
AND
THE FIFTH THIRD BANK, Trustee
-------------
INDENTURE
------------
Dated as of May 15, 1995
<PAGE>
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
Section 310(a)(1). . . . . . . . . . . . . . . . . . .609
(a)(2). . . . . . . . . . . . . . . . . . . . 609
(a)(3). . . . . . . . . . . . . . .Not Applicable
(a)(4) . . . . . . . . . . . . . . Not Applicable
(b). . . . . . . . . . . . . . . . . . . . . .608
. . . . . . . . . . . . . . . . . . . . . . . 610
Section 311(a). . . . . . . . . . . . . . . . . . . . 613
(b). . . . . . . . . . . . . . . . . . . . . .613
Section 312(a). . . . . . . . . . . . . . . . . . . . 701
. . . . . . . . . . . . . . . . . . . . . . . 702
(b). . . . . . . . . . . . . . . . . . . . . .702
(c). . . . . . . . . . . . . . . . . . . . . .702
Section 313(a). . . . . . . . . . . . . . . . . . . . 703
(b). . . . . . . . . . . . . . . . . . . . . .703
(c). . . . . . . . . . . . . . . . . . . . . .703
(d). . . . . . . . . . . . . . . . . . . . . .703
Section 314(a). . . . . . . . . . . . . . . . . . . . 704
(a)(4). . . . . . . . . . . . . . . . . . . . 101
. . . . . . . . . . . . . . . . . . . . . . .1004
(b). . . . . . . . . . . . . . . . Not Applicable
(c)(1). . . . . . . . . . . . . . . . . . . . 102
(c)(2). . . . . . . . . . . . . . . . . . . . 102
(c)(3). . . . . . . . . . . . . . .Not Applicable
(d). . . . . . . . . . . . . . . . Not Applicable
(e). . . . . . . . . . . . . . . . . . . . . .102
Section 315(a). . . . . . . . . . . . . . . . . . . . 601
(b). . . . . . . . . . . . . . . . . . . . . .602
(c). . . . . . . . . . . . . . . . . . . . . .601
(d). . . . . . . . . . . . . . . . . . . . . .601
(e). . . . . . . . . . . . . . . . . . . . . .514
Section 316(a). . . . . . . . . . . . . . . . . . . . 101
(a)(1)(A). . . . . . . . . . . . . . . . . . .502
. . . . . . . . . . . . . . . . . . . . . . . 512
(a)(1)(B). . . . . . . . . . . . . . . . . . .513
(a)(2). . . . . . . . . . . . . . .Not Applicable
(b). . . . . . . . . . . . . . . . . . . . . .508
(c). . . . . . . . . . . . . . . . . . . . . .104
Section 317(a)(1). . . . . . . . . . . . . . . . . . .503
(a)(2). . . . . . . . . . . . . . . . . . . . 504
(b). . . . . . . . . . . . . . . . . . . . . 1003
Section 318(a). . . . . . . . . . . . . . . . . . . . 107
__________________
Note: This reconciliation and tie shall not, for any
purpose, be deemed to be a part of the Indenture.
<PAGE>
THE CINCINNATI GAS & ELECTRIC COMPANY
Indenture
Dated as of May 15, 1995
----------------------
TABLE OF CONTENTS
Parties. . . . . . . . . . . . . . . . . . . . . . . . . . .
Recitals of the Company . . . . . . . . . . . . . . . . . . .
ARTICLE ONE
Definitions and Other Provisions of General
Application
Section 101. Definitions:
Act . . . . . . . . . . . . . . . . . . . .
Affiliate; control . . . . . . . . . . . . .
Authenticating Agent. . . . . . . . . . . .
Board of Directors. . . . . . . . . . . . .
Board Resolution. . . . . . . . . . . . . .
Business Day. . . . . . . . . . . . . . . .
Commission. . . . . . . . . . . . . . . . .
Company. . . . . . . . . . . . . . . . . . .
Company Request; Company Order. . . . . . .
Corporate Trust Office. . . . . . . . . . .
corporation. . . . . . . . . . . . . . . . .
Covenant Defeasance. . . . . . . . . . . . .
Defaulted Interest. . . . . . . . . . . . .
Defeasance. . . . . . . . . . . . . . . . .
Depositary. . . . . . . . . . . . . . . . .
Event of Default. . . . . . . . . . . . . .
Exchange Act. . . . . . . . . . . . . . . .
Expiration Date. . . . . . . . . . . . . . .
Global Security. . . . . . . . . . . . . . .
Holder. . . . . . . . . . . . . . . . . . .
Indenture. . . . . . . . . . . . . . . . . .
interest. . . . . . . . . . . . . . . . . .
Interest Payment Date. . . . . . . . . . . .
Investment Company Act. . . . . . . . . . .
Junior Subordinated Securities. . . . . . .
Maturity. . . . . . . . . . . . . . . . . .
Notice of Default. . . . . . . . . . . . . .
Officers' Certificate. . . . . . . . . . . .
Opinion of Counsel. . . . . . . . . . . . .
Original Issue Discount Security. . . . . .
Outstanding. . . . . . . . . . . . . . . . .
Paying Agent. . . . . . . . . . . . . . . .
Person. . . . . . . . . . . . . . . . . . .
Place of Payment. . . . . . . . . . . . . .
Predecessor Security. . . . . . . . . . . .
Redemption Date. . . . . . . . . . . . . . .
Redemption Price. . . . . . . . . . . . . .
Regular Record Date. . . . . . . . . . . .
Responsible Officer. . . . . . . . . . . . .
Securities. . . . . . . . . . . . . . . . .
Securities Act. . . . . . . . . . . . . . .
Security Register;Security Registrar. . . .
Senior Debt. . . . . . . . . . . . . . . . .
Special Record Date. . . . . . . . . . . . .
Stated Maturity. . . . . . . . . . . . . . .
Subsidiary. . . . . . . . . . . . . . . . .
Trust Indenture Act. . . . . . . . . . . . .
Trustee. . . . . . . . . . . . . . . . . . .
U.S. Government Obligation. . . . . . . . .
Vice President. . . . . . . . . . . . . . .
Section 102. Compliance Certificates and Opinions. . . .
Section 103. Form of Documents Delivered
to Trustee. . . . . . . . . . . . . . . .
Section 104. Acts of Holders; Record Dates. . . . . . . .
Section 105. Notices, Etc., to Trustee
and Company. . . . . . . . . . . . . . .
Section 106. Notice to Holders; Waiver. . . . . . . . . .
Section 107. Conflict with Trust Indenture Act. . . . . .
Section 108. Effect of Headings and Table of
Contents. . . . . . . . . . . . . . . . .
Section 109. Successors and Assigns. . . . . . . . . . .
Section 110. Separability Clause. . . . . . . . . . . . .
Section 111. Benefits of Indenture. . . . . . . . . . . .
Section 112. Governing Law. . . . . . . . . . . . . . . .
Section 113. Legal Holidays. . . . . . . . . . . . . . .
Section 114. Certain Matters Relating to
Currencies. . . . . . . . . . . . . . . .
Section 115. Immunity of Incorporators, Stockholders,
Officers and Directors. . . . . . . . . .
Section 116. Counterparts. . . . . . . . . . . . . . . .
Section 117. Assignment to Subsidiary. . . . . . . . . .
ARTICLE TWO
Security Forms
Section 201. Forms Generally. . . . . . . . . . . . . . .
Section 202. Form of Face of Security. . . . . . . . . .
Section 203. Form of Reverse of Security. . . . . . . . .
Section 204. Form of Legend for Global Securities. . . .
Section 205. Form of Trustee's Certificate of
Authentication. . . . . . . . . . . . . .
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series. . . .
Section 302. Denominations. . . . . . . . . . . . . . . .
Section 303. Execution, Authentication, Delivery
and Dating. . . . . . . . . . . . . . . .
Section 304. Temporary Securities. . . . . . . . . . . .
Section 305. Registration, Registration of
Transfer and Exchange. . . . . . . . . .
Section 306. Mutilated, Destroyed, Lost and
Stolen Securities. . . . . . . . . . . .
Section 307. Payment of Interest; Interest
Rights Preserved. . . . . . . . . . . . .
Section 308. Persons Deemed Owners. . . . . . . . . . . .
Section 309. Cancellation. . . . . . . . . . . . . . . .
Section 310. Computation of Interest. . . . . . . . . . .
Section 311. CUSIP Numbers. . . . . . . . . . . . . . . .
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of
Indenture. . . . . . . . . . . . . . . .
Section 402. Application of Trust Money. . . . . . . . .
ARTICLE FIVE
Remedies
Section 501. Events of Default. . . . . . . . . . . . . .
Section 502. Acceleration of Maturity;
Rescission and Annulment. . . . . . . .
Section 503. Collection of Indebtedness and Suits
for Enforcement by Trustee. . . . . . .
Section 504. Trustee May File Proofs of Claim. . . . . .
Section 505. Trustee May Enforce Claims Without
Possession of Securities. . . . . . . .
Section 506. Application of Money Collected. . . . . . .
Section 507. Limitation on Suits. . . . . . . . . . . . .
Section 508. Unconditional Right of Holders to
Receive Principal, Premium and
Interest. . . . . . . . . . . . . . . .
Section 509. Restoration of Rights and Remedies. . . . .
Section 510. Rights and Remedies Cumulative. . . . . . .
Section 511. Delay or Omission Not Waiver. . . . . . . .
Section 512. Control by Holders. . . . . . . . . . . . .
Section 513. Waiver of Past Defaults. . . . . . . . . . .
Section 514. Undertaking for Costs. . . . . . . . . . . .
Section 515. Waiver of Usury, Stay or
Extension Laws. . . . . . . . . . . . . .
ARTICLE SIX
The Trustee
Section 601. Certain Duties and
Responsibilities. . . . . . . . . . .
Section 602. Notice of Defaults. . . . . . . . . . . . .
Section 603. Certain Rights of Trustee. . . . . . . . . .
Section 604. Not Responsible for Recitals or
Issuance of Securities. . . . . . . .
Section 605. May Hold Securities. . . . . . . . . . . . .
Section 606. Money Held in Trust. . . . . . . . . . . . .
Section 607. Compensation and Reimbursement. . . . . . .
Section 608. Conflicting Interests. . . . . . . . . . . .
Section 609. Corporate Trustee Required; Eligibility. . .
Section 610. Resignation and Removal; Appointment
of Successor. . . . . . . . . . . . . .
Section 611. Acceptance of Appointment by Successor. . .
Section 612. Merger, Conversion, Consolidation
or Succession to Business. . . . . . .
Section 613. Preferential Collection of Claims
Against Company. . . . . . . . . . . .
Section 614. Appointment of Authenticating Agent. . . . .
Section 615. Indemnification. . . . . . . . . . . . . . .
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee
Names and Addresses of Holders. . . . .
Section 702. Preservation of Information;
Communications to Holders. . . . . . . .
Section 703. Reports by Trustee. . . . . . . . . . . . .
Section 704. Reports by Company. . . . . . . . . . . . .
ARTICLE EIGHT
Consolidation, Merger and Sale
Section 801. Consolidation and Mergers Permitted. . . . .
Section 802. Rights and Duties of Successor Company . . .
Section 803. Opinion of Counsel. . . . . . . . . . . . .
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without
Consent of Holders. . . . . . . . . . .
Section 902. Supplemental Indentures With
Consent of Holders. . . . . . . . . . .
Section 903. Execution of Supplemental Indentures . . . .
Section 904. Effect of Supplemental Indentures. . . . . .
Section 905. Conformity with Trust Indenture Act . . . .
Section 906. Reference in Securities to
Supplemental Indentures. . . . . . . . .
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and
Interest. . . . . . . . . . . . . . . .
Section 1002. Maintenance of Office or Agency. . . . . . .
Section 1003. Money for Securities Payments to Be
Held in Trust. . . . . . . . . . . . . .
Section 1004. Statement by Officers as to
Default. . . . . . . . . . . . . . . . .
Section 1005. Maintenance of Properties. . . . . . . . . .
Section 1006. Payment of Taxes and Other Claims. . . . . .
Section 1007. Waiver of Certain Covenants. . . . . . . . .
Section 1008. Calculation of Original Issue Discount . . .
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article. . . . . . . . . .
Section 1102. Election to Redeem; Notice to Trustee. . . .
Section 1103. Selection by Trustee of Securities
to Be Redeemed. . . . . . . . . . . . .
Section 1104. Notice of Redemption. . . . . . . . . . . .
Section 1105. Deposit of Redemption Price. . . . . . . . .
Section 1106. Securities Payable on Redemption Date . . .
Section 1107. Securities Redeemed in Part. . . . . . . . .
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article. . . . . . . . . .
Section 1202. Satisfaction of Sinking Fund
Payments with Securities. . . . . . . .
Section 1203. Redemption of Securities for
Sinking Fund. . . . . . . . . . . . . .
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Company's Option to Effect Defeasance or
Covenant Defeasance. . . . . . . . . . .
Section 1302. Defeasance and Discharge. . . . . . . . . .
Section 1303. Covenant Defeasance. . . . . . . . . . . . .
Section 1304. Conditions to Defeasance or Covenant
Defeasance. . . . . . . . . . . . . . .
Section 1305. Deposited Money and U.S. Government
Obligations to Be Held in Trust;
Miscellaneous Provisions. . . . . . . .
Section 1306. Reinstatement. . . . . . . . . . . . . . . .
ARTICLE FOURTEEN
Junior Subordinated Securities
Section 1401. Certain Securities Subordinate to
Senior Debt. . . . . . . . . . . . . . .
Section 1402. Payment Over of Proceeds Upon
Default. . . . . . . . . . . . . . . . .
Section 1403. Payment Over of Proceeds Upon
Dissolution, Etc. . . . . . . . . . . .
Section 1404. Subrogation to Rights of Holders of
Senior Debt. . . . . . . . . . . . . . .
Section 1405. Trustee to Effectuate
Subordination. . . . . . . . . . . . . .
Section 1406. Notice to Trustee. . . . . . . . . . . . . .
Section 1407. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights . . . .
Section 1408. No Waiver of Subordination Provisions. . . .
Testimonium. . . . . . . . . . . . . . . . . . . . . . . . .
Signatures . . . . . . . . . . . . . . . . . . . . . . . . .
<PAGE>
INDENTURE, dated as of May 15, 1995, between The Cincinnati
Gas & Electric Company, a corporation duly organized and existing
under the laws of the State of Ohio (herein called the
"Company"), having its principal office at 139 East Fourth
Street, Cincinnati, Ohio 45202, and The Fifth Third Bank, an Ohio
banking corporation, as Trustee (herein called the
"Trustee").
Recitals of the Company
The Company has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time
of its unsecured debentures, notes or other evidences of
indebtedness (herein called 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 thereof, it is mutually agreed,
subject to Article Fourteen, if applicable, for the equal and
proportionate benefit of the Holders of the Securities of each
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:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well
as the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally
accepted accounting principles;
(4) unless the context otherwise requires, any reference to
an "Article" or a "Section" refers to an Article or a Section, as
the case may be, of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person. For
the purposes of this definition, "control" when used with respect
to any specified Person means the power to direct the management
and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 614 to act on behalf of the Trustee
to authenticate Securities of one or more series.
"Board of Directors" means the board of directors of the
Company, or any duly authorized committee of that board, or any
Person duly authorized to act on behalf of that board.
"Board Resolution" means a copy of a resolution or
resolutions 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 Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in that
Place of Payment are authorized or obligated by law or executive
order to close.
"Commission" means the Securities and Exchange Commission,
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 Person shall
have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Company" shall mean such successor
Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company either by (i) its
Chairman of the Board, its Vice Chairman, its President or a Vice
President, and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the
Trustee, or (ii) any two Persons designated in a Board
Resolution, or in a Company Order previously delivered to the
Trustee signed by any two of the foregoing, and delivered to the
Trustee.
"Corporate Trust Office" means the office of the Trustee for
Securities of any series at which at any particular time its
corporate trust business shall be principally administered,
which office at the date of execution of this Indenture is
located at 38 Fountain Square Plaza, Cincinnati, Ohio.
"corporation" means a corporation, association, company,
joint-stock company or business trust.
"Covenant Defeasance" has the meaning specified in Section
1303.
"Defaulted Interest" has the meaning specified in Section
307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to Securities of any series
issuable in whole or in part in the form of one or more Global
Securities, a clearing agency registered under the Exchange Act
that is designated to act as Depositary for such Securities as
contemplated by Section 301.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and
any statute successor thereto, in each case as amended from time
to time.
"Expiration Date" has the meaning specified in Section 104.
"Global Security" means a Security that evidences all or
part of the Securities of any series and bears the legend set
forth in Section 204 (or such legend as may be specified as
contemplated by Section 301 for such Securities).
"Holder" means a Person in whose name a Security is
registered in the Security Register.
"Indenture" means this instrument as originally executed and
as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, including, for all purposes of this
instrument and any such supplemental indenture, the provisions of
the Trust Indenture Act that are deemed to be a part of and
govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms
of particular series of Securities established as contemplated by
Section 301.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after
Maturity, means interest payable after Maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an instalment of interest
on such Security.
"Investment Company Act" means the Investment Company Act of
1940 and any statute successor thereto, in each case as amended
from time to time.
"Junior Subordinated Securities" shall have the meaning
specified in Section 1401.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an instalment
of principal becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind
specified in Section 501(4).
"Officers' Certificate" means a certificate signed in the
same manner and by Persons as provided for in a Company Request
or a Company Order, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be an employee of or counsel for the Company.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to
be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means,
as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee
or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such
Securities; 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;
(3) Securities as to which Defeasance has been effected
pursuant to Section 1302; and
(4) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company; provided,
however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made
or taken any request, demand, authorization, direction, notice,
consent, waiver or other action hereunder as of any date, (A) the
principal amount of an Original Issue Discount Security which
shall be deemed to be Outstanding shall be the amount of the
principal thereof which would be due and payable as of such date
upon acceleration of the Maturity thereof to such date pursuant
to Section 502, (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 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, waiver or other
action, only Securities which the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and
that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other
obligor.
"Paying Agent" means, if not the Company, then any Person
authorized by the Company to pay the principal of or any premium
or interest on any Securities on behalf of the Company.
"Person" means any individual, corporation, partnership,
joint venture, 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 any premium and interest on the Securities of that series are
payable as specified as contemplated by Section 301.
"Predecessor Security" of any particular Security means
every previous Security evidencing all or a portion of the same
debt as that evidenced by such particular Security; and, for the
purposes of this definition, any Security authenticated and
delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security
to be redeemed, means the price at which it is to be redeemed
pursuant to this Indenture.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Securities of any series means the
date specified for that purpose as contemplated by Section 301.
"Responsible Officer", when used with respect to the
Trustee, means any vice president, any assistant vice-president,
any trust officer or assistant trust officer of the Trustee
assigned to the Trustee's corporate trust department and
customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom
such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities
authenticated and delivered under this Indenture.
"Securities Act" means the Securities Act of 1933 and any
statute successor thereto, in each case as amended from time to
time.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Debt" of the Company means the principal of,
premium, if any, interest on and any other payment due pursuant
to any of the following, whether outstanding at the date of
execution of this Indenture or thereafter incurred, created or
assumed: (a) all indebtedness of the Company evidenced by notes,
debentures, bonds or other securities sold by the Company for
money, excluding Junior Subordinated Securities, but including
all first mortgage bonds of the Company outstanding from time to
time; (b) all indebtedness of others of the kinds described in
the preceding clause (a) assumed by or guaranteed in any manner
by the Company, including through an agreement to purchase,
contingent or otherwise; and (c) all renewals, extensions or
refundings of indebtedness of the kinds described in any of the
preceding clauses (a) and (b); unless, in the case of any
particular indebtedness, renewal, extension or refunding, the
instrument creating or evidencing the same or the assumption or
guarantee of the same expressly provides that such indebtedness,
renewal, extension or refunding is not superior in right of
payment to or is pari passu with the Junior Subordinated
Securities.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section
307.
"Stated Maturity", when used with respect to any Security or
any instalment of principal thereof or interest thereon, means
the date specified in such Security as the fixed date on which
the principal of such Security or such instalment of principal or
interest is due and payable.
"Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or
indirectly, by the Company or by one or more other Subsidiaries,
or by the Company and one or more other Subsidiaries. For the
purposes of this definition, "voting stock" means stock which
ordinarily has voting power for the election of directors,
whether at all times or only so long as no senior class of stock
has such voting power by reason of any contingency.
"Trust Indenture Act" means the Trust Indenture Act of 1939
as in force at the date as of which this instrument was executed,
except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this instrument until a successor Trustee
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Trustee" shall mean or include
each Person who is then a Trustee hereunder, and if at any time
there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee
with respect to Securities of that series.
"U.S. Government Obligation" has the meaning specified in
Section 1304.
"Vice President", when used with respect to the Company or
the Trustee, means any vice president, whether or not designated
by a number or a word or words added before or after the title
"vice president".
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture,
the Company shall furnish to the Trustee such certificates and
opinions as may be required under the Trust Indenture Act. Each
such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the
Company, or an Opinion of Counsel, if to be given by counsel, and
shall comply with the requirements of the Trust Indenture Act and
any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture shall
include,
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and
the definitions herein relating thereto;
(2) 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
(3) 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; Record Dates.
Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this
Indenture to be given, made 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 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) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness
of such execution or by a certificate of a notary public or other
officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. 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 or writing, or the authority of
the Person executing the same, may also be proved in any other
manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security
Register.
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.
The Company may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities of any
series entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given, made or
taken by Holders of Securities of such series, provided that the
Company may not set a record date for, and the provisions of this
paragraph shall not apply with respect to, the giving or making
of any notice, declaration, request or direction referred to in
the next paragraph. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities of the relevant
series on such record date, and no other Holders, shall be
entitled to take the relevant action, whether or not such Holders
remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to
the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Securities of such series on such
record date. Nothing in this paragraph shall be construed to prevent
the Company from setting a new record date for any action
for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and
of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the
requisite principal amount of Outstanding Securities of the
relevant series on the date such action is taken. Promptly after
any record date is set pursuant to this paragraph, the Company,
at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to
be given to the Trustee in writing and to each Holder of
Securities of the relevant series in the manner set forth in
Section 106.
The Trustee may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities of any
series entitled to join in the giving or making of (i) any Notice
of Default, (ii) any declaration of acceleration referred to in
Section 502, (iii) any request to institute proceedings referred
to in Section 507(2) or (iv) any direction referred to in Section
512, in each case with respect to Securities of such series. If
any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of such series on such record date, and no
other Holders, shall be entitled to join in such notice,
declaration, request or direction, whether or not such Holders
remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to
the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Securities of such series on such
record date. Nothing in this paragraph shall be construed to
prevent the Trustee from setting a new record date for any action
for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and
of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the
requisite principal amount of Outstanding Securities of the
relevant series on the date such action is taken. Promptly after
any record date is set pursuant to this paragraph, the Trustee,
at the Company's expense, shall cause notice of such record date,
the proposed action by Holders and the applicable Expiration Date
to be given to the Company in writing and to each Holder of
Securities of the relevant series in the manner set forth in
Section 106.
With respect to any record date set pursuant to this
Section, the party hereto which sets such record date may
designate any day as the "Expiration Date" and from time to time
may change the Expiration Date to any earlier or later day;
provided that no such change shall be effective unless notice of
the proposed new Expiration Date is given to the other party
hereto in writing, and to each Holder of Securities of the
relevant series in the manner set forth in Section 106, on or prior
to the existing Expiration Date. If an Expiration Date is
not designated with respect to any record date set pursuant to
this Section, the party hereto which set such record date shall
be deemed to have initially designated the 180th day after such
record date as the Expiration Date with respect thereto, subject
to its right to change the Expiration Date as provided in this
paragraph. Notwithstanding the foregoing, no Expiration Date
shall be later than the 180th day after the applicable record
date.
Without limiting the foregoing, a Holder entitled hereunder
to take any action hereunder with regard to any particular
Security may do so with regard to all or any part of the
principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal
amount.
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, Attention: Corporate Trust Administration, 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, to each
Holder affected by such event, at his address as it appears in
the Security Register, not later than the latest date (if any),
and not earlier than the earliest date (if any), prescribed for
the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other
Holders. Any notice when mailed to a Holder in the aforesaid
manner shall be conclusively deemed to have been received by such
Holder whether or not actually received by such Holder. 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 with
the approval of the Trustee 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
a provision of the Trust Indenture Act which is required under
such Act to be a part of and govern this Indenture, the latter
provision shall control. If any provision of this Indenture
modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall
be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the
construction hereof.
Section 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,
their successors hereunder, the Holders, and the holders of any
Senior Debt, 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 law of the State of New York.
Without regard to conflicts of laws principles thereof.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Security shall not be a Business Day at
any Place of Payment, then (notwithstanding any other provision
of this Indenture or of the Securities (other than a provision of
any Security which specifically states that such provision shall
apply in lieu of this Section)) payment of interest or principal
(and premium, if any) need not be made at such Place of Payment
on such date, but may be made on the next succeeding Business Day
at such Place of Payment with the same force and effect as if
made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity, and no interest shall accrue with respect to
such payment for the period from and after such Interest Payment
Date, Redemption Date or Stated Maturity, as the case may be, to
such next succeeding Business Day.
Section 114. Certain Matters Relating to Currencies.
Whenever any action or Act is to be taken hereunder by the
Holders of Securities denominated in different currencies or
currency units, then for purposes of determining the principal
amount of Securities held by such Holders, the aggregate
principal amount of the Securities denominated in a foreign
currency or currency unit shall be deemed to be that amount of
Dollars that could be obtained for such principal amount on the
basis of a spot exchange rate specified to the Trustee for such
series in an Officers' Certificate for exchanging such foreign
currency or currency unit into Dollars as of the date of the
taking of such action or Act by the Holders of the requisite
percentage in principal amount of the Securities.
The Trustee shall segregate moneys, funds and accounts held
by the Trustee in one currency or currency unit from any moneys,
funds or accounts held in any other currencies or currency units,
notwithstanding any provision herein that would otherwise permit
the Trustee to commingle such amounts.
Section 115. Immunity of Incorporators, Stockholders, Officers
and Directors.
No recourse shall be had for the payment of the principal of
(and premium, if any), or the interest, if any, on any Securities
of any series, or for any claim based thereon, or upon any
obligation, covenant or agreement of this Indenture, against any
incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or of any successor
corporation, either directly or indirectly 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 of
penalty or otherwise; it being expressly agreed and understood
that this Indenture and all the Securities of each series are
solely corporate obligations, and that no personal liability
whatever shall attach to, or is incurred by, any incorporator,
stockholder, officer or director, past, present or future, of the
Company or of any successor corporation, either directly or
indirectly through the Company or any successor corporation,
because of the incurring of the indebtedness hereby authorized or
under or by reason of any of the obligations, covenants or
agreements contained in this Indenture or in any of the
Securities of any series, or to be implied herefrom or therefrom;
and that all such personal liability is hereby expressly released
and waived as a condition of, and as part of the consideration
for, the execution of this Indenture and the issuance of the
Securities of each series.
Section 116. Counterparts.
This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same
instrument.
Section 117. Assignment to Affiliate.
The Company will have the right at all times to assign by
indenture supplemental hereto any of its rights or obligations
under the Indenture to a direct, indirect, or wholly owned
Affiliate of the Company; provided that, in the event of any such
assignment, the Company will remain liable for all such
obligations.
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
Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as
evidenced by their execution thereof. 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 the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery
of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
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 officers executing such
Securities, as evidenced by their execution of such Securities.
Section 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and
the
regulations thereunder.]
THE CINCINNATI GAS & ELECTRIC COMPANY
.................................................................
No. ......... $ ........
CUSIP NO. _______
The Cincinnati Gas & Electric Company, a corporation duly
organized and existing under the laws of the state of Ohio
(herein called the "Company", which term includes any successor
Person 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, ................... on ............ and
............ in each year, commencing ........., at the rate of
....% per annum, until the principal hereof is paid or made
available for payment. 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 and any overdue premium shall bear interest at the rate
of ....% per annum (to the extent that the payment of such
interest shall be legally enforceable), from the dates such
amounts are due until they are paid or made available for
payment. Interest on any overdue principal or premium shall be
payable on demand. Any such interest on overdue principal or
premium which is not paid on demand shall bear interest at the rate
of ......% per annum (to the extent that the payment of such
interest on interest shall be legally enforceable), from the date
of such demand until the amount so demanded is paid or made
available for payment. Interest on any overdue interest shall be
payable on demand.]
Payment of the principal of (and premium, if any) and [if
applicable, insert: any such] interest 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
payment of public and private debts [if applicable, 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].
Any payment on this Security due on any day which is not a
Business Day in the City of New York need not be made on such
day, but may be made on the next succeeding Business Day with the
same force and effect as if made on the due date and no interest
shall accrue for the period from and after such date.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, [if subordinated,
insert: including, without limitation, provisions subordinating
the payment of the principal hereof and any premium and interest
hereon to the payment in full of all Senior Debt as defined in
the Indenture] which such further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by
manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
In Witness Whereof, the Company has caused this instrument
to be duly executed.
THE CINCINNATI GAS & ELECTRIC COMPANY
By...............................................
Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"),
issued and to be issued in one or more series under an Indenture,
dated as of , 1995 (herein called the
"Indenture", which term shall have the meaning assigned to it in
such instrument), between the Company and The Fifth Third Bank,
as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), and reference is hereby
made to the Indenture for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the
Company, the Trustee and the Holders of the Securities and of the
terms upon which the Securities are, and are to be, authenticated
and delivered. This Security is one of the series designated on
the face hereof [if applicable, insert: , limited in aggregate
principal amount to $...........].
[If applicable, insert: The Securities of this series are
subject to redemption upon not less than 30 days' notice by mail,
[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 [if applicable, insert: 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 [if applicable, insert: on or
before ..............., ...%, and if redeemed] during the
12-month period beginning ............. of the years indicated,
Redemption Redemption
Year Price Year Price
------ ---------- ---- ----------
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 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 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: The Securities of this series are
subject to redemption upon not less than 30 days' notice by mail,
(1) on ............ in any year commencing with the year .... and
ending with the year .... through operation of the sinking fund
for this series at the Redemption Prices for redemption through
operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below, and (2) at any
time [if applicable, insert: on or after ............], as a
whole or in part, at the election of the Company, at the
Redemption Prices for redemption otherwise than through operation
of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the
12-month period beginning ............ of the years indicated,
Redemption Price For
Redemption Price For Redemption Otherwise
Redemption Through Than Through
Operation of the Operation of the
Year Sinking Fund Sinking Fund
---- -------------------- ---------------------
and thereafter at a Redemption Price equal to .....% of the
principal amount, together in the case of any such redemption
(whether through operation of the sinking fund or otherwise) with
accrued 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 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 [if applicable, insert: 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.]
[If applicable, insert: The sinking fund for this series
provides for the redemption on ............ in each year
beginning with the year ....... and ending with the year ......
of [if applicable, insert: not less than $..........
("mandatory sinking fund") and not more than] $.........
aggregate principal amount of Securities of this series. Securities
of this series acquired or redeemed by the Company
otherwise than through [if applicable, insert: mandatory]
sinking fund payments may be credited against subsequent [if
applicable, insert: mandatory] sinking fund payments otherwise
required to be made [if applicable, insert: , in the inverse
order in which they become due].]
[If the Security is subject to redemption of any kind, insert:
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.]
[If subordinated, insert: The indebtedness evidenced by the
Securities of this series is, to the extent and in the manner
provided in the Indenture, expressly subordinate and subject in
right of payment to the prior payment in full of all Senior Debt
of the Company (as defined in the Indenture) whether outstanding
at the date of the Indenture or thereafter incurred, and this
Security is issued subject to the provisions of the Indenture
with respect to such subordination. Each holder and owner of
this Security, by accepting the same, agrees to and shall be
bound by such provisions and authorizes the Trustee in his behalf
to take such action as may be necessary or appropriate to
effectuate the subordination so provided and appoints the Trustee
his attorney-in-fact for such purpose.]
[If applicable, insert: The Indenture contains provisions
for defeasance at any time of [the entire indebtedness of this
Security] [or] [certain restrictive covenants and Events of
Default with respect to this Security] [, in each case] upon
compliance with certain conditions set forth in the Indenture.]
[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 may be declared due and payable
in the manner and with the effect provided in the Indenture. Such
amount shall be equal to insert: formula for determining the
amount. Upon payment (i) of the amount of principal so declared
due and payable and (ii) of interest on any overdue principal,
premium and 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 premium 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 Trustee with the
consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of each series to be affected.
The Indenture also contains provisions permitting the Holders of
a majority in principal amount of the Securities of each series
at the time Outstanding, on behalf of the Holders of all
Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made
upon this Security.
As provided in and subject to the provisions of the
Indenture, the Holder of this Security shall not have the right
to institute any proceeding with respect to the Indenture or for
the appointment of a receiver or trustee or for any other remedy
thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with
respect to the Securities of this series, the Holders of not less
than 35% in principal amount of the Securities of this series at
the time Outstanding shall have made written request to the
Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee indemnity reasonably
satisfactory to the Trustee, and the Trustee shall not have
received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to
institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not
apply to any suit instituted by the Holder of this Security for
the enforcement of any payment of principal hereof or any premium
or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of
this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and any premium and interest on this
Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of 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 any premium and
interest 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 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.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
Section 204. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301
for the Securities evidenced thereby, every Global Security
authenticated and delivered hereunder shall bear a legend in
substantially the following form (or such other form as a
securities exchange or Depositary may request or require):
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 thereof. This Security may not be
exchanged in whole or in part for a Security registered, and no
transfer of this Security in whole or in part may be registered,
in the name of any Person other than such Depositary or a nominee
thereof, except in the limited circumstances described in the
Indenture.
Section 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
THE FIFTH THIRD BANK,
As Trustee
By.........................................
Authorized Signatory
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall 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 established in one or
more indentures supplemental hereto, prior to the issuance of
Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any
other series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for,
or in lieu of, other Securities of the series pursuant to Section
304, 305, 306, 906 or 1107 and except for any Securities which,
pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series
shall be payable, if other than 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;
(4) the date or dates on which the principal of any
Securities of the series is payable;
(5) the rate or rates at which any Securities of the series
shall bear interest, if any, the date or dates from which any
such interest shall accrue, the Interest Payment Dates on which
any such interest shall be payable, the manner of determination
of such Interest Payment Dates and the Regular Record Date for
any such interest payable on any Interest Payment Date;
(6) the right, if any, to extend the interest payment
periods and the duration of such extension;
(7) the place or places where the principal of and any
premium and interest on any Securities of the series shall be
payable;
(8) the period or periods within which, the price or prices
at which and the terms and conditions upon which any Securities
of the series may be redeemed, in whole or in part, at the option
of the Company and, if other than by a Board Resolution, the
manner in which any election by the Company to redeem the
Securities shall be evidenced;
(9) the obligation, if any, of the Company to redeem or
purchase any Securities of the series pursuant to any sinking
fund or analogous provisions or at the option of the Holder
thereof and the period or periods within which, the price or
prices at which and the terms and conditions upon which any
Securities of the series shall be redeemed or purchased, in whole
or in part, pursuant to such obligation;
(10) the denominations in which any Securities of the series
shall be issuable;
(11) if the amount of principal of or any premium or
interest on any Securities of the series may be determined with
reference to an index or pursuant to a formula, the manner in
which such amounts shall be determined;
(12) if other than the currency of the United States of
America, the currency, currencies or currency units in which the
principal of or any premium or interest on any Securities of the
series shall be payable and the manner of determining the
equivalent thereof in the currency of the United States of
America for any purpose, including for purposes of the definition
of "Outstanding" in Section 101;
(13) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the
Company or the Holder thereof, in one or more currencies or
currency units other than that or those in which such Securities
are stated to be payable, the currency, currencies or currency
units in which the principal of or any premium or interest on
such Securities as to which such election is made shall be
payable, the periods within which and the terms and conditions
upon which such election is to be made and the amount so payable
(or the manner in which such amount shall be determined);
(14) if other than the entire principal amount thereof, the
portion of the principal amount of any Securities of the series
which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 502;
(15) if the principal amount payable at the Stated Maturity
of any Securities of the series will not be determinable as of
any one or more dates prior to the Stated Maturity, the amount
which shall be deemed to be the principal amount of such
Securities as of any such date for any purpose thereunder or
hereunder, including the principal amount thereof which shall be
due and payable upon any Maturity other than the Stated Maturity
or which shall be deemed to be Outstanding as of any date prior
to the Stated Maturity (or, in any such case, the manner in which
such amount deemed to be the principal amount shall be
determined);
(16) if applicable, that the Securities of the series, in
whole or any specified part, shall be defeasible pursuant to
Section 1302 or Section 1303 or both such Sections;
(17) if applicable, that any Securities of the series shall
be issuable in whole or in part in the form of one or more Global
Securities and, in such case, the respective Depositaries for
such Global Securities, the form of any legend or legends which
shall be borne by any such Global Security in addition to or in
lieu of that set forth in Section 204 and any circumstances in
addition to or in lieu of those set forth in Clause (2) of the
last paragraph of Section 305 in which any such Global Security
may be exchanged in whole or in part for Securities registered,
and any transfer of such Global Security in whole or in part may
be registered, in the name or names of Persons other than the
Depositary for such Global Security or a nominee thereof;
(18) any addition to or change in the Events of Default
which applies to any Securities of the series and any change in
the right of the Trustee or the requisite Holders of such
Securities to declare the principal amount thereof due and
payable pursuant to Section 502;
(19) any addition to or change in the covenants set forth in
Article Ten which applies to Securities of the series;
(20) the applicability of, or any addition to or change in,
Article Fourteen with respect to the Securities of a series;
(21) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture.
All Securities of any one series shall be substantially
identical except as to date and principal amount and except as
may otherwise be provided in or pursuant to the Board Resolution
referred to above and (subject to Section 303) set forth, or
determined in the manner provided, in the Officers' Certificate
referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate
record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Officers' Certificate setting
forth the terms of the series.
Section 302. Denominations.
The Securities of each series shall be issuable only in
registered form without coupons and only in such denominations as
shall be specified as contemplated by Section 301. In the absence
of any such specified denomination 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 Chairman of the Board, its Vice Chairman, its President, one
of its Vice Presidents, or its Treasurer. The signature of any of
these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior
to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of
any series executed by the Company to the Trustee for
authentication, together with a Company Order for the
authentication and delivery of such Securities, 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 by or pursuant to a Board
Resolution as permitted by Sections 201 and 301, 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) shall be fully protected in relying
upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been established by
or pursuant to Board Resolution as permitted by Section 201, that
such form has been established in conformity with the provisions
of this Indenture;
(2) if the terms of such Securities have been established
by or pursuant to Board Resolution as permitted by Section 301,
that such terms have been established in conformity with the
provisions of this Indenture; and
(3) 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, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to
or affecting creditors' rights to general equity principles and
to such other matters as such counsel shall set forth therein.
If such form or terms have been so established, the Trustee shall
not be required to authenticate such Securities if the issue of
such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Securities
and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 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 Officers' Certificate otherwise required pursuant to
Section 301 or the Company Order and Opinion of Counsel otherwise
required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents
(with appropriate variations to reflect such future issuance) are
delivered at or prior to the authentication upon original
issuance of the first Security of such series to be issued.
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. 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, 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 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 one
or more definitive Securities of the same series, of any
authorized denominations and of like tenor and aggregate
principal amount. 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 and
tenor.
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 a series at the office or agency of the Company in a Place of
Payment for that series, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities
of the same series, of any authorized denominations and of like
tenor and aggregate principal amount.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any
authorized denominations and of like tenor and aggregate
principal amount, 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 for any registration of
transfer or exchange of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any
transfer.
If the Securities of any series (or of any series and
specified tenor) are to be redeemed in part, the Company shall
not be required (A) to issue, register the transfer of or
exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning at
the opening of business 15 days before the day of the mailing of
a notice of redemption of any such Securities selected for
redemption under Section 1103 and ending at the close of business on
the day of such mailing, or (B) 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 Clauses (1), (2), (3) and (4) below shall
apply only to Global Securities:
(1) Each Global Security authenticated under this Indenture
shall be registered in the name of the Depositary designated for
such Global Security or a nominee thereof and delivered to such
Depositary or nominee thereof or custodian therefor, and each
such Global Security shall constitute a single Security for all
purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture,
no Global Security may be exchanged in whole or in part for
Securities registered, and no transfer of a Global Security in
whole or in part may be registered, in the name of any Person
other than the Depositary for such Global Security or a nominee
thereof unless (A) such Depositary (i) has notified the Company
that it is unwilling or unable to continue as Depositary for such
Global Security or (ii) has ceased to be a clearing agency
registered under the Exchange Act, (B) there shall have occurred
and be continuing an Event of Default with respect to such Global
Security or (C) there shall exist such circumstances, if any, in
addition to or in lieu of the foregoing as have been specified
for this purpose as contemplated by Section 301.
(3) Subject to Clause (2) above, any exchange of a Global
Security for other Securities may be made in whole or in part,
and all Securities issued in exchange for a Global Security or
any portion thereof shall be registered in such names as the
Depositary for such Global Security shall direct.
(4) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a
Global Security or any portion thereof, whether pursuant to this
Section, Section 304, 306, 906 or 1107 or otherwise, shall be
authenticated and delivered in the form of, and shall be, a
Global Security, unless such Security is registered in the name
of a Person other than the Depositary for such Global Security or
a nominee thereof.
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 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,
the Company may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall
constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security
shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301
with respect to any series of Securities, 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 given to each Holder of Securities of such series
in the manner set forth in Section 106, 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.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Security
is registered as the owner of such Security for the purpose of
receiving payment of principal of and any premium and (subject to
Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent (if not
the Company) or the Security Registrar shall have any
responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership
interests.
Section 309. Cancellation.
All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be
promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee
(or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder
which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Securities
held by the Trustee shall be disposed of as directed by a Company
Order; provided, however, that the Trustee shall not be required
to destroy such cancelled Securities.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, interest on the Securities of each
series shall be computed on the basis of a 360-day year of twelve
30-day months.
Section 311. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Trustee may
use "CUSIP" numbers in notices of redemption as a convenience to
Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice
of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of
such numbers.
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 theretofore authenticated and delivered (other than
(i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306 and
(ii) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 1003) have been delivered to
the Trustee for cancellation; or (B) all such Securities not
theretofore delivered to the Trustee for cancellation (i)
have become due and payable, or (ii) will become due and
payable at their Stated Maturity within one year, or (iii)
are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company, and the Company, in the case of (i), (ii) or
(iii) above, has deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose, money in an
amount sufficient to pay and discharge the entire indebtedness on
such Securities not theretofore delivered to the Trustee for
cancellation, for principal and any premium and interest to the
date of such deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or Redemption Date, as
the case may be;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate 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, the obligations of the Company to any Authenticating
Agent under Section 614 and, if money shall have been deposited
with the Trustee pursuant to subclause (B) of Clause (1) of this
Section, the obligations of the Trustee under Section 402 and the
last paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
1003 and to Article Fourteen, if applicable, all money deposited
with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal and any premium and interest for
whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or
governmental body):
(1) 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
(2) default in the payment of the principal of or any
premium on any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment,
when and as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant
or warranty of the Company in this Indenture (other than a
covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with or
which has expressly been included in this Indenture solely for
the benefit of a 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 35% in 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
(5) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
Federal or state bankruptcy, insolvency, reorganization or other
similar law or (B) a decree or order adjudging the Company a
bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company under any applicable Federal or state
law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official 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
(6) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or insolvent, or
the consent by it to the entry of a decree or order for relief
in respect of the Company in an involuntary case or proceeding
under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the
filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or state
law, or the consent by it to the filing of such petition or to
the appointment of, or taking possession of the Company or of any
substantial part of its property by, a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar
official or the making by the Company of an assignment for the
benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the
taking of corporate action by the Company in furtherance of any
such action; or
(7) any other Event of Default established pursuant to
Section 301 with respect to Securities of that series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default
specified in Section 501(5) or 501(6)) with respect to Securities
of any series at the time Outstanding occurs and is continuing,
then in every such case the Trustee or the Holders of not less
than 35% in principal amount of the Outstanding Securities of that
series may declare the principal amount of all the
Securities of that series (or, if any Securities of that series
are Original Issue Discount Securities, such portion of the
principal amount of such Securities as may be specified by the
terms thereof) 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. If an Event of
Default specified in Section 501(5) or 501(6) with respect to
Securities of any series at the time Outstanding occurs, the
principal amount of all the Securities of that series (or, if any
Securities of that series are Original Issue Discount Securities,
such portion of the principal amount of such Securities as may be
specified by the terms thereof) shall automatically, and without
any declaration or other action on the part of the Trustee or any
Holder, become immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a
judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the
Holders of a majority in principal amount of the Outstanding
Securities of that series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its
consequences if,
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay (A) all overdue interest on all
Securities of that series, (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 any
interest thereon at the rate or rates prescribed therefor in
such Securities, (C) 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
Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as
provided in Section 513.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then
due and payable on such Securities for principal and any premium
and interest and 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 an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the
rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company
(or any other obligor upon the Securities), its property or its
creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have
claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to
collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and
any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
No provision of this Indenture 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;
provided, however, that the Trustee may, on behalf of the
Holders, vote for the election of a trustee in bankruptcy or
similar official and be a member of a creditors' or other similar
committee.
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,
subject to Article Fourteen, if applicable, shall be applied in
the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of
principal or any premium 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; and
Second: To the payment of the amounts then due and unpaid
for principal of and any premium and interest on the Securities
in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities
for principal and any premium and interest, respectively
Third: The balance, if any, to the Company.
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;
(2) the Holders of not less than 35% 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
indemnity reasonably satisfactory to the Trustee against the
costs, expenses and liabilities to be incurred in compliance with
such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute
any such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the Outstanding
Securities of that series; it being understood and intended that
no one or more of such Holders shall have any right in any manner
whatever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other
of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right
under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all of such Holders.
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute
and unconditional, to receive payment of the principal of and any
premium and (subject to Section 307) interest on such Security on
the respective Stated Maturities expressed in such Security (or,
in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding
to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or
has been determined adversely to the Trustee or to such Holder,
then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be
restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding 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, 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.
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, and
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount
of the Outstanding Securities of any series may on behalf of the
Holders of all the Securities of such series 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 any premium or
interest 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.
In any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, a court may require
any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party
litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that this Section shall not apply to any
suit instituted by the Trustee or to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than
10% in principal amount of Outstanding Securities (of any
series), or to any suit instituted by a Holder for the
enforcement of the payment of the principal of or any premium or
interest on any Security on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date).
Section 515. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any
usury, stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the
foregoing, 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. Whether or not therein expressly
so provided, every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to
the Trustee shall be subject to the provisions of this Section.
Section 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of
any series, the Trustee shall give the Holders of Securities of
such series notice of such default as and to the extent provided
by the Trust Indenture Act, unless such default shall have been
cured or waived; provided, however, that in the case of any
default of the character specified in Section 501(4) with respect
to Securities of such series, no such notice to Holders shall be
given until at least 30 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become,
an Event of Default with respect to Securities of such series.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, 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;
(2) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or
Company Order, and any resolution of the Board of Directors shall
be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel of its selection
and the advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise
any of the rightsor powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the Trustee
security or indemnity reasonably satisfactory to the Trustee
against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(6) 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.
(7) 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.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee
of Securities and, subject to Sections 608 and 613, may otherwise
deal with the Company with the same rights it would have if it
were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder 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 in writing
with the Company.
Section 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such
compensation as shall be agreed to in writing between the Company
and the Trustee for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
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), 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.
The Trustee shall have a lien prior to the Securities as to
all property and funds held by it hereunder for any amount owing
it or any predecessor Trustee pursuant to this Section 607,
except with respect to funds held in trust for the benefit of the
Holders of particular Securities.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(5)
or Section 501(6), the expenses (including the reasonable charges
and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of administration
under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination
of this Indenture.
Section 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall
either eliminate such interest or resign, to the extent and in
the manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Indenture. To the extent permitted
by such Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under this
Indenture with respect to Securities of more than one series.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee
hereunder with respect to the Securities of each series, which
may be Trustee hereunder for Securities of one or more other
series. Each Trustee shall be a Person that is eligible pursuant
to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law
or to the requirements of its supervising or examining authority,
then for the purposes of this Section and to the extent permitted
by the Trust Indenture Act, the combined capital and surplus of
such Person shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time the Trustee with respect to the
Securities of any series shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this
Article.
Section 610. Resignation and Removal; Appointment of Successor.
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.
The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof
to the Company. If the instrument of acceptance by a successor
Trustee required by Section 611 shall not have been delivered to
the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
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.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section
609 and shall fail to resign after written request therefor by
the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any such case, (A) the Company by a Board
Resolution may remove the Trustee with respect to all Securities,
or (B) subject to Section 514, 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.
If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee
for any cause, with respect to the Securities of one or more
series, the Company, by a Board Resolution, shall promptly
appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any
time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the
applicable requirements of Section 611. If, within one year after
such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of
such series delivered to the Company and the retiring Trustee,
the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable
requirements of Section 611, become the successor Trustee with
respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and
accepted appointment in the manner required by Section 611, any
Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
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 to all Holders of Securities of
such series in the manner provided in Section 106. 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.
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.
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.
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 the first or second
preceding paragraph, as the case may be.
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.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee
shall be subject to the provisions of the Trust Indenture Act
regarding the collection of claims against the Company (or any
such other obligor). For purposes of Section 311(b) (4) and (6)
of the Trust Indenture Act, the following terms shall mean:
(a) "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; and
(b) "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company for the purpose of
financing the purchase, processing, manufacturing, shipment, storage
or sale of goods, wares or merchandise and which is
secured by documents evidencing title to, possession of, or a
lien upon, the goods, wares or merchandise or the receivables or
proceeds arising from the sale of the goods, wares or merchandise
previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation.
Section 614. Appointment of Authenticating Agent.
From time to time the Trustee may appoint one or more
Authenticating Agents with respect to one or more series of
Securities, which may include the Company or any of its
Affiliates, with power to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue
and upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, and Securities so
authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed
on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall
at all times be a corporation organized and doing business under
the laws of the United States of America, any State thereof or
the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of
not less than $50,000,000 and subject to supervision or
examination by Federal or State authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed
to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a
party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the execution
or filing of any paper or any further act on the part
of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The
Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating
Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be
acceptable to the Company. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested
with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this
Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in
the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
THE FIFTH THIRD BANK
As Trustee
By......................................,
As Authenticating Agent
By.......................................
Authorized Officer
Section 615. Indemnification.
The Company agrees to indemnify the Trustee for, and hold it
harmless against, any loss, liability or expense incurred by it,
arising out of or in connection with the acceptance or
administration of this Indenture or the trusts hereunder or the
performance of its duties hereunder or under any related
document, including the reasonable costs and expenses of
defending itself against or investigating any claim or liability
with respect to the Securities, except to the extent that any
such loss, liability or expense was due to its own negligence or
bad faith. The Company need not pay for any settlement made
without its consent. The obligations of the Company to the
Trustee under this Section shall survive the satisfaction and
discharge of this Indenture and payment in full and/or retirement
of the Securities.
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the
Trustee:
(1) on each Regular Record Date, a list, in such form as
the Trustee may reasonably require, of the names and addresses of
the Holders of Securities of each series as of such Regular
Record Date, and (2) 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
shall be the Security Registrar, no such list need be furnished.
Section 702. Preservation of Information; Communications to
Holders.
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 as provided in Section 701 and
the names and addresses of Holders received by the Trustee in its
capacity as Security Registrar. The Trustee may destroy any list
furnished to it as provided in Section 701 upon receipt of a new
list so furnished.
The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the
Trustee, shall be as provided by the Trust Indenture Act.
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 any disclosure of information as to
names and addresses of Holders made pursuant to the Trust
Indenture Act.
Section 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as
may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto. If required by
Section 313(a) of the Trust Indenture Act, the Trustee shall,
within sixty days after each May 15 following the date of this
Indenture deliver to Holders a brief report, dated as of such May
15, which complies with the provisions of such Section 313(a).
A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange upon which any Securities are listed, with the
Commission and with the Company.
Section 704. Reports by Company.
The Company shall file with the Trustee and the Commission,
and transmit to Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant
to the Trust Indenture Act at the times and in the manner
provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act
shall be filed with the Trustee within 15 days after the same is
so required to be filed with the Commission.
ARTICLE EIGHT
Consolidation, Merger and Sale
Section 801. Consolidations and Mergers Permitted.
Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of the
Company with or into any other corporation or corporations
(whether or not affiliated with the Company), or successive
consolidations or mergers in which the Company or its successor
or successors shall be a party or parties, or shall prevent any
sale, conveyance, transfer or other disposition of the property
of the Company or its successor or successors as an entirety, or
substantially as an entirety, to any other corporation (whether
or not affiliated with the Company or its successor or
successors) authorized to acquire and operate the same; provided,
however, the Company hereby covenants and agrees that, upon any
such consolidation, merger, sale, conveyance, transfer or other
disposition, the due and punctual payment of the principal of
(premium, if any) and interest on all of the Securities of all
series in accordance with the terms of each series, according to
their tenor, and the due and punctual performance and observance
of all the covenants and conditions of this Indenture with
respect to each series or established with respect to such series
to be kept or performed by the Company, shall be expressly
assumed, by supplemental indenture (which shall conform to the
provisions of the Trust Indenture Act as then in effect)
satisfactory in form to the Trustee executed and delivered to the
Trustee by the entity formed by such consolidation, or into which
the Company shall have been merged, or by the entity which shall
have acquired such property.
Section 802. Rights and Duties of Successor Company.
In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition and upon the assumption by the
successor corporation, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee,
of the due and punctual payment of the principal of, premium, if
any, and interest on all of the Securities of all series
outstanding and the due and punctual performance of all of the
covenants and conditions of this Indenture or established with
respect to each series of the Securities to be performed by the
Company with respect to each series, such successor corporation
shall succeed to and be substituted for the Company, with the
same effect as if it had been named herein as the party of the
first part, and thereupon the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture
and the Securities. Such successor corporation thereupon may
cause to be signed, and may issue either in its own name or in
the name of the Company or any other predecessor obligor on the
Securities, any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Company and
delivered to the Trustee; and, upon the order of such successor
company, instead of the Company, and subject to all the terms,
conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver any Securities which
previously shall have been signed and delivered by the officers
of the predecessor Company to the Trustee for authentication, and
any Securities which such successor corporation thereafter shall
cause to be signed and delivered to the Trustee for that purpose.
All the Securities so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Securities had been issued
at the date of the execution hereof.
Nothing contained in this Indenture or in any of the
Securities shall prevent the Company from merging into itself or
acquiring by purchase or otherwise all or any part of the
property of any other corporation (whether or not affiliated
with the Company).
Section 803. Opinion of Counsel.
The Trustee may receive an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, conveyance,
transfer or other disposition, and any such assumption, comply
with the provisions of this Article.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any
of the following purposes:
(1) to evidence the succession of another Person to the
Company to the assumption by any such successor of the covenants
of the Company herein and in the Securities pursuant to Article
Eight or Section 117; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities (and if
such covenants are to be for the benefit of less than all series
of Securities, stating that such covenants are expressly being
included solely for the benefit of such series) or to surrender
any right or power herein conferred upon the Company; provided,
however, that in respect of any such additional covenant, such
supplemental indenture may provide for a particular period of
grace after default (which period may be shorter or longer than
that allowed in the case of other defaults) or may provide for an
immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default or may limit the right
of the Holders of a majority in aggregate principal amount of the
Securities of such series to waive such default;
(3) to add any additional Events of Default for the
benefit of the Holders of all or any series of Securities (and if
such additional Events of Default are to be for the benefit of
less than all series of Securities, stating that such additional
Events of Default are expressly being included solely for the
benefit of such series); or
(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 permit or facilitate the issuance of Securities in
uncertificated form; or
(5) to add to, change or eliminate any of the provisions
of this Indenture in respect of one or more series of Securities,
provided that any such addition, change or elimination (A) shall
neither (i) apply to any Security of any series created prior to
the execution of such supplemental indenture and entitled to the
benefit of such provision nor (ii) modify the rights of the
Holder of any such Security with respect to such provision or (B)
shall become effective only when there is no such Security
Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by
one or more successor Trustees, pursuant to the requirements of
Section 611; or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any
other provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture,
provided that such action pursuant to this Clause (9) shall not
adversely affect the interests of the Holders of Securities of
any series in any material respect.
The Trustee is hereby authorized to join with the Company in
the execution of any such supplemental indenture, and to make any
further appropriate agreements and stipulations which may be
therein contained.
Any supplemental indenture authorized by the provisions of
this Section may be executed by the Company and the Trustee
without the consent of the holders of any of the Securities at
the time outstanding, notwithstanding any of the provisions of
Section 902.
Section 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority
in principal amount of the Outstanding Securities of each series
affected by such supplemental indenture, by Act of said Holders
delivered to the Company and the Trustee, the Company, when
authorized by 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 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 or any other Security which would be due and payable
upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, or change any Place of Payment where, or
the coin or currency in which, any Security or any premium or
interest thereon is payable, affect the applicability of Article
Fourteen to any Security, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(2) reduce the percentage in principal amount of the
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) provided for in this
Indenture, or
(3) modify any of the provisions of this Section,
Section 513 or Section 1007, 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 and
Section 1007, or the deletion of this proviso, in accordance with
the requirements of Sections 611 and 901(8).
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly
been included solely for the benefit of one or more particular
series of Securities, or which modifies the rights of the Holders
of Securities of such series with respect to such covenant or
other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series;
provided that no such supplemental indenture shall modify any
provision of this Indenture so as to adversely affect the rights
of any holder of outstanding Senior Debt to the benefits of
Article Fourteen.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture,
the Trustee shall be entitled to receive, and (subject to Section
601) shall be fully protected in relying upon, an 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 shall
so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE TEN
Covenants
Section 1001. 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 any premium and interest on the Securities of
that series in accordance with the terms of the Securities 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 the
Company hereby appoints the Trustee as its 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 shall at any time act as its own Paying Agent
with respect to any series of Securities, it will, on or before
each due date of the principal of or any premium or interest on
any of the Securities of that series, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient
to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the
Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents
for any series of Securities, it will, on or before each due date
of the principal of or any premium or interest on any Securities
of that series, deposit with a Paying Agent a sum sufficient to
pay such amount, such sum to be held as provided by the Trust
Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such
Paying Agent will (1) comply with the provisions of the Trust
Indenture Act applicable to it as a Paying Agent and (2) during
the continuance of any default by the Company (or any other
obligor upon the Securities of that series) in the making of any
payment in respect of the Securities of that series, upon the
written request of the Trustee, forthwith pay to the Trustee all
sums held in trust by such Paying Agent for payment in respect of
the Securities of that series.
The Company may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such
Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the
principal of or any premium or interest on any Security of any
series and remaining unclaimed for 18 months after such
principal, premium 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, may at the expense of the Company cause to be
published once, in a newspaper published in the English language,
customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York,
New York, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30
days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
Section 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company ending after the
date hereof, an Officers' Certificate, stating whether or not to
the best knowledge of the signers thereof the Company is in
default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to
any period of grace or requirement of notice provided hereunder)
and, if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have
knowledge.
Section 1005. Maintenance of Properties.
The Company will cause all 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 shall
prevent the Company from discontinuing the operation or
maintenance of any of such properties if such discontinuance is,
in the judgment of the Company, desirable in the conduct of its
business or the business of any Subsidiary.
Section 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all
taxes, assessments and governmental charges levied or imposed
upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary, and (2) all lawful
claims for labor, materials and supplies which, if unpaid, might
by law become a lien upon the property of the Company or any
Subsidiary; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged
any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by
appropriate proceedings.
Section 1007. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301
for Securities of such series, the Company may, with respect to
the Securities of any series, omit in any particular instance to
comply with any term, provision or condition set forth in any
covenant provided pursuant to Section 301(18), 901(2) or 901(7)
for the benefit of the Holders of such series if before the time
for such compliance the Holders of at least a majority in
principal amount of the Outstanding Securities of such series
shall, by Act of such Holders, either waive such compliance in
such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or
affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in
full force and effect.
Section 1008. Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of
each calendar year a written notice specifying the amount of
original issue discount (including daily rates and accrual
periods) accrued on Outstanding Securities as of the end of such
year.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their
terms and (except as otherwise specified as contemplated by
Section 301 for such Securities) in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall
be evidenced by a Board Resolution or in another manner specified
as contemplated by Section 301 for such Securities. In case of
any redemption at the election of the Company the Company shall,
at least 45 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date and of the
principal amount of Securities 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, the Company shall
furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be
redeemed (unless all the Securities of such series and of a
specified tenor are to be redeemed or unless such redemption
affects only a single Security), 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 a portion of the
principal amount of any Security of such series, provided that
the unredeemed portion of the principal amount of any Security
shall be in an authorized denomination (which shall not be less
than the minimum authorized denomination) for such Security. If
less than all the Securities of such series are to be redeemed
(unless such redemption affects only a single Security), 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 in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption as aforesaid and, in case
of any Securities selected for partial redemption as aforesaid,
the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not
apply with respect to any redemption affecting only a single
Security, whether such Security is to be redeemed in whole or in
part. In the case of any such redemption in part, the unredeemed
portion of the principal amount of the Security shall be in an
authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security.
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 the Redemption.
Notice of redemption shall be given by mail 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.
All notices of redemption shall identify the Securities to
be redeemed and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any
series consisting of more than a single Security are to be
redeemed, the identification (and, in the case of partial
redemption of any such Securities, the principal amounts) of the
particular Securities to be redeemed and, if less than all the
Outstanding Securities of any series consisting of a single
Security are to be redeemed, the principal amount of the
particular Security 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 each such Security is 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 and shall be irrevocable.
The notice if mailed in the manner herein provided shall be
conclusively presumed to have been given, whether or not the
Holder receives such notice. In any case, failure to give such
notice by mail or any defect in the notice to the Holder of any
Security designated for redemption as a whole or in part shall
not affect the validity of the proceedings for the redemption of
any other Security.
Section 1105. Deposit of Redemption Price.
On or before any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money sufficient to pay
the Redemption Price of, and (except if the Redemption Date shall
be an Interest Payment Date) accrued interest on, all the
Securities which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified,
and from and after such date (unless the Company shall default in
the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided,
however, that, unless otherwise specified as contemplated by
Section 301, installments of interest whose Stated Maturity is on
or prior to the Redemption Date will 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.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company
or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of
the same series and of like tenor, of any authorized denomination
as requested by such Holder, in aggregate principal amount equal
to and in exchange for the unredeemed portion of the principal of
the Security so surrendered; provided, however, that a Depositary
need not surrender a Global Security for a partial redemption and
may be authorized to make a notation on such Global Security of
such partial redemption. In the case of a partial redemption of
a Global Security, the Depositary, and in turn, the participants
in the Depositary, shall have the responsibility to select any
Securities to be redeemed by random lot.
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 any series
except as otherwise specified as contemplated by Section 301 for
such Securities.
The minimum amount of any sinking fund payment provided for
by the terms of any Securities 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 such Securities
is herein referred to as an "optional sinking fund payment". If
provided for by the terms of any Securities, the cash amount of
any sinking fund payment may be subject to reduction as provided
in Section 1202. Each sinking fund payment shall be applied to
the redemption of Securities as provided for by the terms of such
Securities.
Section 1202. Satisfaction of Sinking Fund Payments with
Securities.
The Company (1) may deliver Outstanding Securities of a
series (other than any previously called for redemption) and (2)
may apply as a credit Securities of a series which have been
redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of
any sinking fund payment with respect to any Securities of such
series required to be made pursuant to the terms of such
Securities as and to the extent provided for by the terms of such
Securities; provided that the Securities to be so credited have
not been previously so credited. The Securities to be so credited
shall be received and credited for such purpose by the Trustee at
the Redemption Price, as specified in the Securities so to be
redeemed, for redemption through operation of the sinking fund
and the amount of such sinking fund payment shall be reduced
accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment
date for any Securities, the Company will deliver to the Trustee
an Officers' Certificate specifying the amount of the next
ensuing sinking fund payment for such Securities pursuant to the
terms of such Securities, 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 pursuant to Section 1202 and will also deliver to the
Trustee any Securities to be so delivered. Not less than 30 days
prior to each such sinking fund payment date, the Trustee shall
select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section
1104. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated
in Sections 1106 and 1107.
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Company's Option to Effect Defeasance or Covenant
Defeasance.
The Company may elect, at its option at any time, to have
Section 1302 or Section 1303 applied to any Securities or any
series of Securities, as the case may be, designated pursuant to
Section 301 as being defeasible pursuant to such Section 1302 or
1303, in accordance with any applicable requirements provided
pursuant to Section 301 and upon compliance with the conditions
set forth below in this Article. Any such election shall be
evidenced by a Board Resolution or in another manner specified as
contemplated by Section 301 for such Securities.
Section 1302. Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have
this Section applied to any Securities or any series of
Securities, as the case may be, the Company shall be deemed to
have been discharged from its obligations with respect to such
Securities as provided in this Section on and after the date the
conditions set forth in Section 1304 are satisfied (hereinafter
called "Defeasance"). For this purpose, such Defeasance means
that the Company shall be deemed to have paid and discharged the
entire indebtedness represented by such Securities and to have
satisfied all its other obligations under such Securities and
this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), subject to the following
which shall survive until otherwise terminated or discharged
hereunder: (1) the rights of Holders of such Securities to
receive, solely from the trust fund described in Section 1304 and
as more fully set forth in such Section, payments in respect of
the principal of and any premium and interest on such Securities
when payments are due, (2) the Company's obligations with respect
to such Securities under Sections 304, 305, 306, 1002 and 1003,
(3) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (4) this Article. Subject to compliance
with this Article, the Company may exercise its option (if any)
to have this Section applied to any Securities notwithstanding
the prior exercise of its option (if any) to have Section 1303
applied to such Securities.
Section 1303. Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have
this Section applied to any Securities or any series of
Securities, as the case may be, (1) the Company shall be released
from its obligations under Section 801(3), Sections 1005 through
1006, inclusive, and any covenants provided pursuant to Section
301(19), 901(2) or 901(7) for the benefit of the Holders of such
Securities and (2) the occurrence of any event specified in
Sections 501(4) (with respect to any of Section 801(3), Sections
1005 through 1006, inclusive, and any such covenants provided
pursuant to Section 301(19), 901(2) or 901(7)), and 501(7) shall
be deemed not to be or result in an Event of Default in each case
with respect to such Securities as provided in this Section on
and after the date the conditions set forth in Section 1304 are
satisfied (hereinafter called "Covenant Defeasance"). For this
purpose, such Covenant Defeasance means that, with respect to
such Securities, the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation
set forth in any such specified Section (to the extent so
specified in the case of Section 501(4)) or Article Fourteen,
whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or Article or by reason of
any reference in any such Section or Article to any other
provision herein or in any other document, but the remainder of
this Indenture and such Securities shall be unaffected thereby.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of
Section 1302 or Section 1303 to any Securities or any series of
Securities, as the case may be:
(1) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee which
satisfies the requirements contemplated by Section 609 and agrees
to comply with the provisions of this Article applicable to it)
as trust funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Securities, (A)
money in an amount, or (B) U.S. Government Obligations which
through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, money in
an amount, or (C) a combination thereof, in each case sufficient,
in the opinion of a firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by the
Trustee (or any such other qualifying trustee) to pay and
discharge, the principal of and any premium and interest on such
Securities on the respective Stated Maturities, in accordance
with the terms of this Indenture and such Securities. As used
herein, "U.S. Government Obligation" means (x) any security which
is (i) a direct obligation of the United States of America for
the payment of which the full faith and credit of the United
States of America is pledged or (ii) an obligation of a Person
controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of
which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case
(i) or (ii), is not callable or redeemable at the option of the
issuer thereof, and (y) any depositary receipt issued by a bank
(as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any U.S. Government Obligation which is
specified in Clause (x) above and held by such bank for the
account of the holder of such depositary receipt, or with respect
to any specific payment of principal of or interest on any U.S.
Government Obligation which is so specified and held, 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 principal or interest evidenced by such
depositary receipt.
(2) In the event of an election to have Section 1302
apply to any Securities or any series of Securities, as the case
may be, the Company shall have delivered to the Trustee an
Opinion of Counsel stating that (A) the Company has received
from, or there has been published by, the Internal Revenue
Service a ruling or (B) since the date of this instrument, there
has been a change in the applicable Federal income tax law, in
either case (A) or (B) to the effect that, and based thereon such
opinion shall confirm that, the Holders of such Securities will
not recognize gain or loss for Federal income tax purposes as a
result of the deposit, Defeasance and discharge to be effected
with respect to such Securities and will be subject to Federal
income tax on the same amount, in the same manner and at the
same times as would be the case if such deposit, Defeasance and
discharge were not to occur.
(3) In the event of an election to have Section 1303
apply to any Securities or any series of Securities, as the case
may be, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Holders of such
Securities will not recognize gain or loss for Federal income tax
purposes as a result of the deposit and Covenant Defeasance to
be effected with respect to such Securities and will be subject
to Federal income tax on the same amount, in the same manner and
at the same times as would be the case if such deposit and
Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an
Officers' Certificate to the effect that neither such Securities
nor any other Securities of the same series, if then listed on
any securities exchange, will be delisted as a result of such
deposit.
(5) No event which is, or after notice or lapse of time
or both would become, an Event of Default with respect to such
Securities or any other Securities shall have occurred and be
continuing at the time of such deposit or, with regard to any
such event specified in Sections 501(5) and (6), at any time on
or prior to the 90th day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied
until after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not
cause the Trustee to have a conflicting interest within the
meaning of the Trust Indenture Act (assuming all Securities are
in default within the meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default
under, any other agreement or instrument to which the Company is
a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not
result in the trust arising from such deposit constituting an
investment company within the meaning of the Investment Company
Act unless such trust shall be registered under such Act or
exempt from registration thereunder.
(9) At the time of such deposit, (A) no default in the
payment of any principal of or premium or interest on any Senior
Debt shall have occurred and be continuing, (B) no event of
default with respect to any Senior Debt shall have resulted in
such Senior Debt becoming, and continuing to be, due and payable
prior to the date on which it would otherwise have become due
and payable (unless payment of such Senior Debt has been made or
duly provided for), and (C) no other event of default with
respect to any Senior Debt shall have occurred and be continuing
permitting (after notice or lapse of time or both) the holders of
such Senior Debt (or a trustee on behalf of such holders) to
declare such Senior Debt due and payable prior to the date on
which it would otherwise have become due and payable.
(10) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent with respect to such Defeasance or
Covenant Defeasance have been complied with.
Section 1305. Deposited Money and U.S. Government Obligations to
Be Held in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section
1003, all money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee or other qualifying
trustee (solely for purposes of this Section and Section 1306,
the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 1304 in
respect of any Securities shall be held in trust and applied by
the Trustee, in accordance with the provisions of such Securities
and this Indenture, to the payment, either directly or through
any such Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of
such Securities, of all sums due and to become due thereon in
respect of principal and any premium and interest, but money so
held in trust need not be segregated from other funds except to
the extent required by law.
Money and U.S. Government Obligations so held in trust shall
not be subject to the provisions of Article Fourteen.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 1304 or the
principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of
the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time
upon Company Request any money or U.S. Government Obligations
held by it as provided in Section 1304 with respect to any
Securities which, in the opinion of a firm of independent public
accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof
which would then be required to be deposited to effect the
Defeasance or Covenant Defeasance, as the case may be, with
respect to such Securities.
Section 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any
money in accordance with this Article with respect to any
Securities by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise
prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been
discharged or released pursuant to Section 1302 or 1303 shall be
revived and reinstated as though no deposit had occurred pursuant
to this Article with respect to such Securities, until such time
as the Trustee or Paying Agent is permitted to apply all money
held in trust pursuant to Section 1305 with respect to such
Securities in accordance with this Article; provided, however,
that if the Company makes any payment of principal of or any
premium or interest on any such Security following such
reinstatement of its obligations, the Company shall be subrogated
to the rights (if any) of the Holders of such Securities to
receive such payment from the money so held in trust.
ARTICLE FOURTEEN
Junior Subordinated Securities
Section 1401. Certain Securities Subordinate to Senior Debt.
As provided pursuant to Section 301 or in a supplemental
indenture, the Company may issue one or more series of Securities
subject to the provisions of this Article Fourteen, and each
Holder of a Security of a series so issued ("Junior Subordinated
Securities"), whether upon original issue or upon transfer or
assignment thereof, accepts and agrees to be bound by such
provisions.
The payment of the principal of, premium, if any, and
interest on all Junior Subordinated Securities issued with
respect to which this Article Fourteen applies shall, to the
extent and in the manner hereinafter set forth, be subordinate
and subject in right of payment to the prior payment in full of
all Senior Debt, whether outstanding at the date of this
Indenture or thereafter incurred.
No provision of this Article Fourteen shall prevent the
occurrence of any default or Event of Default hereunder.
Section 1402. Payment Over of Proceeds Upon Default.
In the event and during the continuation of any default in
the payment of principal, premium, interest or any other payment
due on any Senior Debt continuing beyond the period of grace, if
any, specified in the instrument evidencing such Senior Debt,
unless and until such default shall have been cured or waived or
shall have ceased to exist, or in the event that the maturity of
any Senior Debt has been accelerated because of a default, then
no payment shall be made by the Company with respect to the
principal (including redemption and sinking fund payments) of, or
premium, if any, or interest on the Junior Subordinated
Securities.
In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee or any holder when such
payment is prohibited by the preceding paragraph of this Section
1402, such payment shall be held in trust for the benefit of, and
shall be paid over or delivered to, the holders of Senior Debt or
their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Debt may
have been issued, as their respective interests may appear, but
only to the extent that the holders of the Senior Debt (or their
representative or representatives or a trustee) notify the
Trustee within 90 days of such payment of the amounts then due
and owing on the Senior Debt and only the amounts specified in
such notice to the Trustee shall be paid to the holders of Senior
Debt.
Section 1403. Payment Over of Proceeds Upon Dissolution, Etc.
Upon any payment by the Company, or distribution of assets
of the Company of any kind or character, whether in cash,
property or securities, to creditors upon any dissolution or
winding-up or liquidation or reorganization of the Company,
whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due or to become
due upon all Senior Debt shall first be paid in full, or payment
thereof provided for in money in accordance with its terms,
before any payment is made on account of the principal (and
premium, if any) or interest on the Junior Subordinated
Securities; and upon any such dissolution or winding-up or
liquidation or reorganization any payment by the Company, or
distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to which the Holders of
the Junior Subordinated Securities or the Trustee would be
entitled, except for the provisions of this Article Fourteen,
shall be paid by the Company or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other person making
such payment or distribution, or by the Holders of the Junior
Subordinated Securities or by the Trustee under this Indenture if
received by them or it, directly to the holders of Senior Debt
(pro rata to such holders on the basis of the respective amounts
of Senior Debt held by such holders, as calculated by the
Company) or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any
instruments evidencing any Senior Debt may have been issued, as
their respective interests may appear, to the extent necessary to
pay all Senior Debt in full, in money or money's worth, after
giving effect to any concurrent payment or distribution to or for
the holders of Senior Debt, before any payment or distribution is
made to the holders of Junior Subordinated Securities or to the
Trustee.
In the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, prohibited by
the foregoing, shall be received by the Trustee or the holders of
the Junior Subordinated Securities before all Senior Debt is paid
in full, or provision is made for such payment in money in
accordance with its terms, such payment or distribution shall be
held in trust for the benefit of and shall be paid over or
delivered to the holders of Senior Debt or their representative
or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any Senior
Debt may have been issued, as their respective interests may
appear, as calculated by the Company, for application to the
payment of all Senior Debt remaining unpaid to the extent
necessary to pay all Senior Debt in full in money in accordance
with its terms, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Debt.
For purposes of this Article Fourteen, the words, "cash,
property or securities" shall not be deemed to include shares of
stock of the Company as reorganized or readjusted, or securities
of the Company or any other corporation provided for by a plan of
reorganization or readjustment, the payment of which is
subordinated at least to the extent provided in this Article
Fourteen with respect to the Junior Subordinated Securities to
the payment of all Senior Debt which may at the time be
outstanding; provided that (i) the Senior Debt is assumed by the
new corporation, if any, resulting from any such reorganization
or readjustment, and (ii) the rights of the holders of the Senior
Debt are not, without the consent of such holders, altered by
such reorganization or readjustment. The consolidation of the
Company with, or the merger of the Company into, another
corporation or the liquidation or dissolution of the Company
following the conveyance or transfer of its property as an
entirety, or substantially as an entirety, to another corporation
upon the terms and conditions provided for in Article Eight
hereof shall not be deemed a dissolution, winding-up, liquidation
or reorganization for the proposes of this Section 1403 if such
other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in
Article Eight hereof. Nothing in Section 1402 or in this Section
1403 shall apply to claims of, or payments to, the Trustee under
or pursuant to Section 607.
Section 1404. Subrogation to Rights of Holders of Senior Debt.
Subject to the payment in full of all Senior Debt, the
rights of the holders of the Junior Subordinated Securities shall
be subrogated to the rights of the holders of Senior Debt to
receive payments or distributions of cash, property or securities
of the Company applicable to the Senior Debt; and, for the
purposes of such subrogation, no payment or distributions to the
holders of the Senior Debt of any cash, property or securities to
which the holders of the Junior Subordinated Securities or the
Trustee would be entitled except for the provisions of this
Article Fourteen, and no payment over pursuant to the provisions
of this Article Fourteen, to or for the benefit of the holders of
Senior Debt by holders of the Junior Subordinated Securities or
the Trustee, shall, as between the Company, its creditors other
than holders of Senior Debt, and the Holders of the Junior
Subordinated Securities, be deemed to be a payment by the Company
to or on account of the Senior Debt. It is understood that the
provisions of this Article Fourteen are and are intended solely
for the purposes of defining the relative rights of the holders
of the Junior Subordinated Securities, on the one hand, and the
holders of the Senior Debt on the other hand.
Nothing contained in this Article Fourteen or elsewhere in
this Indenture or in the Junior Subordinated Securities is
intended to or shall impair, as between the Company, its
creditors other than the holders of Senior Debt, and the holders
of the Junior Subordinated Securities, the obligation of the
Company, which is absolute and unconditional, to pay to the
holders of the Junior Subordinated Securities the principal of
(and premium, if any) and interest on the Junior Subordinated
Securities as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect
the relative rights of the holders of the Junior Subordinated
Securities and creditors of the Company other than the holders of
the Senior Debt, nor shall anything herein or therein prevent the
Trustee or the holder of any Junior Subordinated Security from
exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any,
under this Article Fourteen of the holders of Senior Debt in
respect of cash, property or securities of the Company received
upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article Fourteen, the Trustee, subject to the
provision of Article Six, and the Holders of the Junior
Subordinated Securities shall be entitled to rely upon any order
or decree made by any court of competent jurisdiction in which
such dissolution, winding-up, liquidation or reorganization,
liquidation or reorganization proceedings are pending, or a
certificate of the receiver, trustee in bankruptcy, liquidation
trustee, agent or other person making such payment or
distribution, delivered to the Trustee or to the Holders of the
Junior Subordinated Securities, for the purposes of ascertaining
the persons entitled to participate in such distribution, the
holders of the Senior Debt and other indebtedness of the Company,
the amount hereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or
to this Article Fourteen.
Section 1405. Trustee to Effectuate Subordination.
Each Holder of a Junior Subordinated Security by his
acceptance thereof authorizes and directs the Trustee in his
behalf to take such action as may be necessary or appropriate to
effectuate the subordination provided in this Article Fourteen
and appoints the Trustee his attorney-in-fact for any and all
such purposes.
Section 1406. Notice to Trustee.
The Company shall give prompt written notice to a
Responsible Officer of the Trustee of any fact known to the
Company which would prohibit the making of any payment of monies
to or by the Trustee in respect of the Junior Subordinated
Securities pursuant to the provisions of this Article Fourteen.
Notwithstanding the provisions of this Article Fourteen or any
other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would
prohibit the making of any payment of monies to or by the Trustee
in respect of the Junior Subordinated Securities pursuant to the
provisions of this Article Fourteen, unless and until a
Responsible Officer of the Trustee shall have received written
notice thereof at the Principal Office of the Trustee from the
Company or a holder or holders of Senior Debt or from any trustee
therefor; and before the receipt of any such written notice, the
Trustee, subject to the provisions of Article Six, shall be
entitled in all respects to assume that no such facts exist;
provided, however, that if the Trustee shall not have received
the notice provided for in this Section 1406 at least two
Business Days prior to the date upon which by the terms hereof
any money may become payable for any purpose (including, without
limitation, the payment of the principal of (or premium, if any)
or interest on any Junior Subordinated Security), then, anything
herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such money and to
apply the same to the purposes for which they were received, and
shall not be affected by any notice to the contrary which may be
received by it within two Business Days prior to such date.
The Trustee, subject to the provisions of Article Six, shall
be entitled to rely on the delivery to it of a written notice by
a person representing himself to be a holder of Senior Debt (or a
trustee on behalf of such holder) to establish that such notice
has been given by a holder of Senior Debt or a trustee on behalf
of any such holder or holders. In the event that the Trustee
determines in good faith that further evidence is required with
respect to the right of any person as a holder of Senior Debt to
participate in any payment or distribution pursuant to this
Article Fourteen, the Trustee may request such person to furnish
evidence to the reasonable satisfaction of the Trustee as to the
amount of Senior Debt held by such Person, the extent to which
such person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such
person under this Article Fourteen, and if such evidence is not
furnished the Trustee may defer any payment to such person
pending judicial determination as to the right of such person to
receive such payment.
Section 1407. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article Fourteen in respect of
any Senior Debt at any time held by it, to the same extent as any
other holder of Senior Debt, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder.
Nothing in this Article Fourteen shall apply to claims of,
or payments to, the Trustee under or pursuant to Section 607.
Section 1408. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Debt
to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on
the part of the Company or by any act or failure to act, in good
faith, by any such holder, or by any noncompliance by the Company
with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof which any such holder may
have or otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt may, at any time and from
time to time, without the consent of or notice to the Trustee or
the holders of the Junior Subordinated Securities, without
incurring responsibility to the holders of the Junior
Subordinated Securities and without impairing or releasing the
subordination provided in this Article or the obligations
hereunder of the holders of the Junior Subordinated Securities to
the holders of Senior Debt, do any one or more of the following:
(i) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, Senior Debt, or otherwise
amend or supplement in any manner Senior Debt or any instrument
evidencing the same or any agreement under which Senior Debt is
outstanding; (ii) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing Senior
Debt; (iii) release any person liable in any manner for the
collection of Senior Debt; and (iv) exercise or refrain from
exercising any rights against the Company and any other person.
-----------------------------
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.
In Witness Whereof, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above
written.
THE CINCINNATI GAS & ELECTRIC COMPANY
By /s/ William L. Sheafer
------------------------
William L. Sheafer
Treasurer
THE FIFTH THIRD BANK
as Trustee
By /s/ Brian J. Gardner
----------------------
Brian J. Gardner
Assistant Vice President
<PAGE>
Exhibit 4
=================================================================
THE CINCINNATI GAS & ELECTRIC COMPANY
AND
THE FIFTH THIRD BANK,
Trustee
________________
Second Supplemental Indenture
Dated as of June 30, 1995
To
Indenture
Dated as of May 15, 1995
________________
8.28% Junior Subordinated Deferrable Interest Debentures Due 2025
=================================================================
<PAGE>
SECOND SUPPLEMENTAL INDENTURE, dated as of June 30, 1995,
between The Cincinnati Gas & Electric Company, a corporation duly
organized and existing under the laws of the State of Ohio
(herein called the "Company"), having its principal office at 139
East Fourth Street, Cincinnati, Ohio 45202, and The Fifth Third
Bank, an Ohio banking corporation, as Trustee (herein called the
"Trustee") under the Indenture dated as of May 15, 1995 between
the Company and the Trustee, as supplemented (the "Indenture").
Recitals of the Company
The Company has executed and delivered the Indenture to the
Trustee to provide for the issuance from time to time of its
unsecured debentures, notes or other evidences of indebtedness
(the "Securities"), to be issued in one or more series as in the
Indenture provided.
Pursuant to the terms of the Indenture, the Company desires
to provide for the establishment of a new series of its
Securities to be known as its 8.28% Junior Subordinated
Deferrable Interest Debentures Due 2025 (herein called the
"Debentures"), in this Second Supplemental Indenture.
All things necessary to make this Second Supplemental
Indenture a valid agreement of the Company have been done.
Now, Therefore, This Second Supplemental Indenture
Witnesseth:
For and in consideration of the premises and the purchase of
the Debentures by the Holders thereof, it is mutually agreed, for
the equal and proportionate benefit of all Holders of the
Debentures, as follows:
ARTICLE ONE
Terms of the Debentures
Section 101. There is hereby authorized a series of
Securities designated the "8.28% Junior Subordinated Deferrable
Interest Debentures Due 2025", limited in aggregate principal
amount to $100,000,000 (except as provided in Section 301(2) of
the Indenture). The Debentures shall mature and the principal
shall be due and payable together with all accrued and unpaid
interest thereon on June 30, 2025 and shall be issued in the form
of a registered Global Security without coupons, registered in
the name of Cede & Co.
Section 102. The provisions of Section 305 of the Indenture
applicable to Global Securities shall apply to the Debentures.
Section 103. Interest on each of the Debentures shall be
payable quarterly, in arrears, on each March 31, June 30,
September 30, and December 31 (each an "Interest Payment Date"),
commencing on September 30, 1995, at the rate per annum specified
in the designation of the Debentures from July 6, 1995, or from
the most recent Interest Payment Date to which interest has been
paid or duly provided for. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment
Date will be paid to the Person in whose name such Debenture (or
one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which
shall be one Business Day prior to the relevant Interest Payment
Date (except that if the Debentures are no longer represented by
a Global Security as a result of the occurrence of an event
specified in Section 305(2) of the Indenture, the Regular Record
Date for such interest payment shall be the close of business on
the fifteenth day [whether or not a Business Day], as the case
may be, next preceding such Interest Payment Date). Interest
will accrue from the date of original issuance to, but not
including, the relevant Interest Payment Date. In the event that
any date on which interest is payable on the Debentures is not a
Business Day, then payment of the interest payable on such date
will be made on the next succeeding day which is a Business Day
(without any interest or other payment in respect of any such
delay), except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same
force and effect as if made on such date. The amount of interest
payable for any period will be computed on the basis of a 360-day
year of twelve 30-day months.
Section 104. Subject to agreements with or the rules of The
Depository Trust Company or any successor book-entry security
system or similar system with respect to Global Securities,
payments of interest will be made by check mailed to the Holder
of each Debenture at the address shown in the Security Register,
and payments of the principal amount of each Debenture will be
made at maturity by check against presentation of the Debenture
at the office or agency of the Trustee.
Section 105. The Debentures shall be issued in
denominations of $25 or any integral multiple of $25.
Section 106. Principal and interest on the Debentures shall
be payable in the coin or currency of the United States of
America, which, at the time of payment, is legal tender for
public and private debts.
Section 107. The Debentures shall be subject to defeasance,
at the Company's option, as provided for in Sections 1302 and
1303 of the Indenture.
Section 108. Subject to the terms of Article Eleven of the
Indenture, the Company shall have the right to redeem the Debentures,
in whole or in part, from time to time, at the time
and redemption price set forth in the form of Debenture contained
in Article Two herein.
Section 109. The Company shall have the right, at any time
during the term of the Debentures, from time to time to extend
the interest payment period of such Debentures for up to the
earlier of 20 consecutive quarters or the maturity of the
Debentures (the "Extended Interest Payment Period"), at the end
of which period the Company shall pay all interest accrued and
unpaid thereon (together with interest thereon at the rate
specified for the Debentures to the extent permitted by
applicable law); provided that, during such Extended Interest
Payment Period, the Company shall not declare or pay any dividend
on, or purchase, acquire or make a liquidation payment with
respect to, any of its capital stock or make any guarantee
payments with respect to the foregoing. Prior to the termination
of any such Extended Interest Payment Period, the Company may
further extend such period, provided that such period together
with all such further extensions thereof shall not exceed 20
consecutive quarters or extend beyond the maturity of the
Debentures. Upon the termination of any Extended Interest
Payment Period and upon the payment of all accrued and unpaid
interest then due, the Company may select a new Extended Interest
Payment Period, subject to the foregoing requirements. No
interest shall be due and payable during an Extended Interest
Payment Period, except at the end thereof.
The Company shall give the Holders of the
Debentures and the
Trustee written notice of its selection of such Extended Interest
Payment Period 10 business days prior to the earlier of (i) the
next succeeding Interest Payment Date or (ii) the date the
Company is required to give notice to Holders of the Debentures
(or, if applicable, to the New York Stock Exchange or other
applicable self- regulatory organization) of the record or
payment date of such interest payment, but in any event not less
than two business days prior to such record date. The quarter in
which any notice is given pursuant to this paragraph shall
constitute one of the 20 quarters which comprise the maximum
Extended Interest Payment Period.
Section 110. The provisions of Article Fourteen of the
Indenture shall apply with respect to the Debentures. Such
Article provides, among other things, that the payment of
principal, premium, if any, and interest on the Debentures are
subordinate and subject in right of payment to the prior payment
in full of all Senior Debt of the Company, whether outstanding at
the date of this Second Supplemental Indenture or thereafter
incurred.
ARTICLE TWO
Form of the Debentures
Section 201. The Debentures are to be substantially in the
following form and shall include substantially the legend shown
so long as the Debentures are Global Securities:
(FORM OF FACE OF DEBENTURE)
4,000,000 8.28% Junior
Subordinated Deferrable
No. R-1 Interest Debentures Due
2025 In Denominations Of $25 Each
CUSIP No. 172070 831
THE CINCINNATI GAS & ELECTRIC COMPANY
8.28% JUNIOR SUBORDINATED DEFERRABLE INTEREST
DEBENTURE DUE 2025
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to issuer or its agent for registration of
transfer, exchange, or payment and any certificate issued is
registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or to such other entity as is requested by
an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has
an interest herein.
THE CINCINNATI GAS & ELECTRIC COMPANY, a corporation duly
organized and existing under the laws of the State of Ohio
(herein called the "Company", which term includes any successor
Person under the Indenture hereafter referred to), for value
received, hereby promises to pay to CEDE & CO., or registered
assigns, the principal sum of One Hundred Million and No/100
Dollars ($100,000,000) on June 30, 2025, and to pay interest
thereon from July 6, 1995 or from the most recent Interest
Payment Date to which interest has been paid or duly provided
for, quarterly (subject to deferral as set forth below), in
arrears, on March 31, June 30, September 30, and December 31, in
each year, commencing September 30, 1995, at the rate of 8.28%
per annum, until the principal hereof is paid or made available
for payment. The amount of interest payable on any Interest
Payment Date shall be computed on the basis of a 360-day year of
twelve 30-day months (for any period shorter than a full
quarterly interest period for which interest is computed,
interest shall be computed on the basis of the actual number of
days elapsed in such period). The interest so payable, and
punctually paid or duly provided for, on any Interest Payment
Date will, as provided in the Indenture, be paid to the Person in
whose name this 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 one Business Day prior to the
relevant Interest Payment Date (except that if the Debentures are
no longer represented by a Global Security as a result of the
occurrence of an event specified in Section 305(2) of the
Indenture, the Regular Record Date for such interest payment
shall be the close of business on the fifteenth day [whether or
not a Business Day], as the case may be, next preceding such
Interest Payment Date). Interest will accrue from the date of
original issuance to, but not including, the relevant Interest
Payment Date. In the event that any date on which interest is
payable on the Debentures is not a Business Day, then payment of
the interest payable on such date will be made on the next
succeeding day which is a Business Day (without any interest or
other payment in respect of any such delay), except that, if such
Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day,
in each case with the same force and effect as if made on such
date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which the Securities of this series may be listed, and upon such
notice as may be required by such exchange, all as more fully
provided in the Indenture.
Payment of the principal of (and premium, if any) and
interest on this Security will be made at the office or agency of
the Company maintained for that purpose in the City of
Cincinnati, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that at the option
of the Company 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.
Except as provided above with respect to the payment of
interest, any payment on this Security due on any day which is
not a Business Day in the City of New York need not be made on
such day, but may be made on the next succeeding Business Day
with the same force and effect as if made on the due date and no
interest shall accrue for the period from and after such date.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof including, without
limitation, provisions subordinating the payment of the principal
hereof and any premium and interest hereon to the payment in full
of all Senior Debt as defined in the Indenture which further
provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by
manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
In Witness Whereof, the Company has caused this instrument
to be duly executed.
THE CINCINNATI GAS & ELECTRIC COMPANY
By.............
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series
designated therein referred to in the within-mentioned Indenture.
THE FIFTH THIRD BANK,
as Trustee
By...............
Authorized Signatory
(FORM OF REVERSE OF DEBENTURE)
This Security is one of a duly authorized issue of securities of
the Company (herein called the "Securities"), issued and to be
issued in one or more series under an Indenture, dated as of May
15, 1995 (herein called the "Indenture", which term shall have
the meaning assigned to it in such instrument), between the Company
and The Fifth Third Bank, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture for a
statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof,
limited in aggregate principal amount to $100,000,000.
The Securities of this series are subject to redemption upon not
less than 30 days' notice by mail at any time on and after June
30, 2000, as a whole or in part, at the election of the Company,
at 100% of the principal amount redeemed together 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 Holders of such Securities, or
one or more 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.
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 any authorized
denomination in the name of the Holder hereof upon cancellation
hereof.
The indebtedness evidenced by the Securities of this series is,
to the extent and in the manner provided in the Indenture,
expressly subordinate and subject in right of payment to the
prior payment in full of all Senior Debt of the Company (as
defined in the Indenture) whether outstanding at the date of the
Indenture or thereafter incurred, and this Security is issued
subject to the provisions of the Indenture with respect to such
subordination. Each holder and owner of this Security, by
accepting the same, agrees to and shall be bound by such
provisions and authorizes the Trustee in his or her behalf to
take such action as may be necessary or appropriate to effectuate
the subordination so provided and appoints the Trustee his or her
attorney-in-fact for such purpose.
The Indenture contains provisions for defeasance at any time of
the entire indebtedness of this Security or certain restrictive
covenants and Events of Default with respect to this Security
upon compliance with certain conditions set forth in the
Indenture.
If an Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of the Securities of
this series may be declared due and payable in the manner and
with the effect provided in the Indenture.
The Company shall have the right, at any time during the term of
the Securities, from time to time to extend the interest payment
period of such Securities for up to the earlier of 20 consecutive
quarters or the maturity of the Securities (the "Extended
Interest Payment Period"), at the end of which period the Company
shall pay all interest accrued and unpaid thereon (together with
interest thereon at the rate specified for the Securities to the
extent permitted by applicable law); provided that, during such
Extended Interest Payment Period, the Company shall not declare
or pay any dividend on, or purchase, acquire or make a
liquidation payment with respect to, any of its capital stock or
make any guarantee payments with respect to the foregoing. Prior
to the termination of any such Extended Interest Payment Period,
the Company may further extend such period, provided that such
period together with all such further extensions thereof shall
not exceed 20 consecutive quarters or extend beyond the maturity
of the Securities. Upon the termination of any Extended Interest
Payment Period and upon the payment of all accrued and unpaid
interest then due, the Company may select a new Extended Interest
Payment Period, subject to the foregoing requirements. No
interest shall be due and payable during an Extended Interest
Payment Period, except at the end thereof.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the
rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under the
Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of each series to be affected.
The Indenture also contains provisions permitting the Holders of
a majority in principal amount of the Securities of each series
at the time Outstanding, on behalf of the Holders of all
Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made
upon this Security.
As provided in and subject to the provisions of the Indenture,
the Holder of this Security shall not have the right to institute
any proceeding with respect to the Indenture or for the
appointment of a receiver or trustee or for any other remedy
thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with
respect to the Securities of this series, the Holders of not less
than 35% in principal amount of the Securities of this series at
the time Outstanding shall have made written request to the
Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonably
satisfactory indemnity, and the Trustee shall not have received from
the Holders of a majority in principal amount of Securities
of this series at the time Outstanding a direction inconsistent
with such request, and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and
offer of indemnity. The foregoing shall not apply to any suit
instituted by the Holder of this Security for the enforcement of
any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay the
principal of and any premium and interest on this Security at the
times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of 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 any premium and interest
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 this series are issuable only
in registered form without coupons in denominations of $25 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.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
ARTICLE THREE
Original Issue of Debentures
Section 301. Debentures in the aggregate principal amount
of $100,000,000, may, upon execution of this Second Supplemental
Indenture, or from time to time thereafter, be executed by the
Company and delivered to the Trustee for authentication, and the
Trustee shall thereupon authenticate and deliver said Debentures
upon a Company Order without any further action by the Company.
ARTICLE FOUR
Paying Agent and Security Registrar
Section 401. The Fifth Third Bank will be the Paying Agent
and Security Registrar for the Debentures.
ARTICLE FIVE
Sundry Provisions
Section 501. Except as otherwise expressly provided in this
Second Supplemental Indenture or in the form of Debenture or
otherwise clearly required by the context hereof or thereof, all
terms used herein or in said form of Debenture that are defined
in the Indenture shall have the several meanings respectively
assigned to them thereby.
Section 502. The Indenture, as supplemented by this Second
Supplemental Indenture, is in all respects ratified and
confirmed, and this Second Supplemental Indenture shall be deemed
part of the Indenture in the manner and to the extent herein and
therein provided.
__________________
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.
In Witness Whereof, the parties hereto have caused this
Second Supplemental Indenture to be duly executed as of the day
and year first above written.
THE CINCINNATI GAS & ELECTRIC COMPANY
By /s/ William L. Sheafer
-----------------------------------
William L. Sheafer
Treasurer
THE FIFTH THIRD BANK, as Trustee
By /s/ Kerry Byrne
-----------------------------------
Kerry Byrne
Vice President
