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Exhibit 4(a)
ALLEGHENY ENERGY, INC.
TO
BANK ONE TRUST COMPANY, N.A.,
Trustee
______________
Indenture
Dated as of [ ], 2000
______________
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ALLEGHENY ENERGY, INC.
Certain Sections of this Indenture relating to Sections 310
through 318, inclusive, of the Trust Indenture Act of 1939:
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.
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TABLE OF CONTENTS
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Page
Parties 1
Recitals of the Company 1
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions:
Act 2
Affiliate; control 2
Authenticating Agent 2
Board of Directors 2
Board Resolution 2
Business Day 2
Commission 2
Company 2
Company Request; Company Order 2
Conditional Redemption 2
Corporate Trust Office 2
Corporation 2
Covenant Defeasance 3
Defaulted Interest 3
Defeasance 3
Depositary 3
Event of Default 3
Exchange Act 3
Expiration Date 3
Global Security 3
Holder 3
Indenture 3
Interest 3
Interest Payment Date 3
Investment Company Act 3
Maturity 3
Notice of Default 3
Officers' Certificate 4
Opinion of Counsel 4
Original Issue Discount Security 4
Outstanding 4
Paying Agent 5
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Person 5
Place of Payment 5
Predecessor Security 5
Redemption Date 5
Redemption Price 5
Regular Record Date 5
Responsible Officer 5
Securities 5
Securities Act 5
Security Register and Security Registrar 5
Special Record Date 6
Stated Maturity 6
Subsidiary 6
Trust Indenture Act 6
Trustee 6
U.S. Government Obligation 6
Vice President 6
Section 102. Compliance Certificates and Opinions 6
Section 103. Form of Documents Delivered to Trustee 7
Section 104. Acts of Holders; Record Dates 7
Section 105. Notices, Etc., to Trustee and Company 9
Section 106. Notice to Holders; Waiver 9
Section 107. Conflict with Trust Indenture Act 10
Section 108. Effect of Headings and Table of Contents 10
Section 109. Successors and Assigns 10
Section 110. Separability Clause 10
Section 111. Benefits of Indenture 10
Section 112. Governing Law 11
Section 113. Legal Holidays 11
ARTICLE TWO
Security Forms
Section 201. Forms Generally 11
Section 202. Form of Face of Security 12
Section 203. Form of Reverse of Security 13
Section 204. Form of Legend for Global Securities 17
Section 205. Form of Trustee's Certificate of
Authentication 17
ARTICLE THREE
The Securities
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Section 301. Amount Unlimited; Issuable in Series 18
Section 302. Denominations 20
Section 303. Execution, Authentication, Delivery and
Dating 20
Section 304. Temporary Securities 22
Section 305. Registration, Registration of Transfer
and Exchange 22
Section 306. Mutilated, Destroyed, Lost and Stolen Securities 23
Section 307. Payment of Interest; Interest Rights Preserved 23
Section 308. Persons Deemed Owners 25
Section 309. Cancellation 26
Section 310. Computation of Interest 26
Section 311. CUSIP Numbers 26
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture 26
Section 402. Application of Trust Money 27
ARTICLE FIVE
REMEDIES
Section 501. Events of Default 28
Section 502. Acceleration of Maturity; Rescission and Annulment 29
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee 30
Section 504. Trustee May File Proofs of Claim 30
Section 505. Trustee May Enforce Claims Without Possession
of Securities 31
Section 506. Application of Money Collected 31
Section 507. Limitation on Suits 31
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest 32
Section 509. Restoration of Rights and Remedies 32
Section 510. Rights and Remedies Cumulative 32
Section 511. Delay or Omission Not Waiver 33
Section 512. Control by Holders 33
Section 513. Waiver of Past Defaults 33
Section 514. Undertaking for Costs 33
Section 515. Waiver of Usury, Stay or Extension Laws 34
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ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities 34
Section 602. Notice of Defaults 34
Section 603. Certain Rights of Trustee 34
Section 604. Not Responsible for Recitals or Issuance of Securities 35
Section 605. May Hold Securities 36
Section 606. Money Held in Trust 36
Section 607. Compensation and Reimbursement 36
Section 608. Conflicting Interests 37
Section 609. Corporate Trustee Required; Eligibility 37
Section 610. Resignation and Removal; Appointment of Successor 37
Section 611. Acceptance of Appointment by Successor 38
Section 612. Merger, Conversion, Consolidation or Succession
to Business 39
Section 613. Preferential Collection of Claims Against Company 40
Section 614. Appointment of Authenticating Agent 40
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses
of Holders 41
Section 702. Preservation of Information; Communications
to Holders 42
Section 703. Reports by Trustee 42
Section 704. Reports by Company 42
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, Etc., Only on Certain Terms 43
Section 802. Successor Substituted 43
ARTICLE NINE
SUPPLEMENTAL INDENTURES
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Section 901. Supplemental Indentures Without Consent of Holders 44
Section 902. Supplemental Indentures with Consent of Holders 45
Section 903. Execution of Supplemental Indentures 46
Section 904. Effect of Supplemental Indentures 46
Section 905. Conformity with Trust Indenture Act 46
Section 906. Reference in Securities to Supplemental Indentures 46
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest 46
Section 1002. Maintenance of Office or Agency 47
Section 1003. Money for Securities Payments to Be Held in Trust 47
Section 1004. Statement by Officers as to Default 48
Section 1005. Existence 48
Section 1006. Maintenance of Properties 48
Section 1007. Payment of Taxes and Other Claims 49
Section 1008. Waiver of Certain Covenants 49
Section 1009. Calculation of Original Issue Discount 49
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article 50
Section 1102. Election to Redeem; Notice to Trustee 50
Section 1103. Selection by Trustee of Securities to Be Redeemed 50
Section 1104. Notice of Redemption 51
Section 1105. Deposit of Redemption Price 52
Section 1106. Securities Payable on Redemption Date 52
Section 1107. Securities Redeemed in Part 52
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article 53
Section 1202. Satisfaction of Sinking Fund Payments with Securities 53
Section 1203. Redemption of Securities for Sinking Fund 53
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ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Company's Option to Effect Defeasance or
Covenant Defeasance 54
Section 1302. Defeasance and Discharge 54
Section 1303. Covenant Defeasance 54
Section 1304. Conditions to Defeasance or Covenant Defeasance 55
Section 1305. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Miscellaneous Provisions 57
Testimonium 58
Signatures and Seals 58
Acknowledgements 59
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INDENTURE, dated as of [ ], 2000, between
ALLEGHENY ENERGY, INC., a corporation duly organized and
existing under the laws of the State of Maryland (herein
called the "Company"), having its principal office at 10435
Downsville Pike, Hagerstown, Maryland 21274-1766 and BANK
ONE TRUST COMPANY, N.A., a national banking association, as
Trustee (herein called the "Trustee") having its corporate
office at 153 West 51 Street, 5th floor, New York, New York
10019.
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, for the equal and proportionate benefit of all
Holders of the Securities or of series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(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, and, except as
otherwise herein expressly provided, the term "generally
accepted accounting principles" with respect to any
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computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at
the date of such computation; and;
(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 either the board of directors
of the Company or any duly authorized committee of that
board.
"Board Resolution" means a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Company to
have been duly adopted by the Board of Directors and to be
in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day", when used with respect to any Place of
Payment, means each 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 by its
Chairman of the Board, its Vice Chairman of the Board, its
President or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
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"Conditional Redemption" has the meaning specified in
Section 1104.
"Corporate Trust Office" means the principal office of the
Trustee in New York, New York at which at any particular
time its corporate trust business shall be administered,
which at the date of this Indenture is 153 West 51st Street,
5th Floor, New York, New York 10019.
"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.
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"Investment Company Act" means the Investment Company Act
of 1940 and any statute successor thereto, in each case as
amended from time to time.
"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).
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"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman of the Board, the
President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Comptroller, the Secretary or an
Assistant Secretary, of the Company, and delivered to the
Trustee. One of the officers signing an Officers'
Certificate given pursuant to Section 1004 shall be the
principal executive, financial or accounting officer of the
Company.
"Opinion of Counsel" means a written opinion of counsel,
who may be counsel for the Company, and who shall be
acceptable to the Trustee.
"Original Issue Discount Security" means any Security
which provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Sec
tion 502.
"Outstanding", when used with respect to Securities,
means, as of the date of determination, all Securities
theretofore authenticated and delivered under this Inden
ture, 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 Secu
rities are valid obligations of the Company;
provided, however, that in determining whether the Holders
of the requisite principal amount of the Outstanding Secu
rities 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
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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 Securi
ties or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstand
ing, 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 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 officer assigned by the Trustee to
administer corporate trust matters 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.
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"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.
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"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 indi
rectly, 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 direc
tors, whether at all times or only so long as no senior
class of stock has such voting power by reason of any con
tingency.
"Trust Indenture Act" means the Trust Indenture Act of
1939 as in force at the date as of which this instrument was
executed; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this instrument until a successor Trustee
shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if
at any time there is more than one such Person, "Trustee" as
used with respect to the Securities of any series shall mean
the Trustee with respect to Securities of that series.
"U.S. Government 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
(except for certificates provided for in Section 1004) 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;
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(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation
as is necessary to enable him to express an informed
opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been
complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified
Person, it is not necessary that all such matters be cer
tified by, or covered by the opinion of, only one such Per
son, 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 representa
tions 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 sub
stantially 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
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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
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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 dates 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
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prepaid, to the Company
addressed to it at the address of its principal office
specified in the first paragraph of this instrument or at
any other address previously furnished in writing to the
Trustee by the Company.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security
Register, not later than the latest date (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. 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 provi
sion 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.
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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 pro
visions shall not in any way be affected or impaired
thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties
hereto and their successors hereunder and the Holders, any
benefit or any legal or equitable right, remedy or claim
under this Indenture.
Section 112. Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the law of the State of New
York, without regard to conflicts of laws principles.
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.
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, con
sistently herewith, be determined by the officers executing
such Securities, as evidenced by their execution thereof. If
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<PAGE>
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.
ALLEGHENY ENERGY, INC.
............................................................
..............
No. ......... $ ........
CUSIP No.______
ALLEGHENY ENERGY, INC., a corporation duly organized and
existing under the laws of Maryland (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, [monthly][quarterly][semi-
annually on ......... and ......... in such year],
commencing ........., at the rate of ....% per annum, until
the principal hereof is paid or made available for payment
[if applicable, insert - , provided that any principal and
premium, and any such instalment of interest, which is
overdue 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, and such
interest shall be payable on demand]. 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 ............. (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
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<PAGE>
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 New York, New York, in such
coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and
private debts [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].
Reference is hereby made to the further provisions of
this Security set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if
set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by
manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for
any purpose.
In Witness Whereof, the Company has caused this
instrument to be duly executed under its corporate seal.
Dated:
ALLEGHENY ENERGY,
INC.
By.....................................
Attest:
.........................................
Section 203. Form of Reverse of Security.
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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 ............., 2000 (herein called
the "Indenture", which term shall have the meaning assigned
to it in such instrument), between the Company and Bank One
Trust Company, N.A., 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 .........., ....], 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,
Year Redemption Year Redemption
Price Price
and thereafter at a Redemption Price equal to .....% of the
principal amount, together in the case of any such redemp
tion [if applicable, insert - (whether through operation of
the sinking fund or otherwise)] with accrued interest to the
Redemption Date, but interest instalments 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
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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,
Year Redemption Price Redemption Price For
For Redemption Redemption Otherwise
Through Operation Than Through
of the Operation
Sinking Fund of the Sinking
Fund
and thereafter at a Redemption Price equal to .....% of the
principal amount, together in the case of any such redemp
tion (whether through operation of the sinking fund or other
wise) with accrued interest to the Redemption Date, but
interest instalments 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.]
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[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 specified percentages
in principal amount of the Securities of each series at the
time Outstanding, on behalf of the Holders of all Securities
of such series, to waive compliance by the Company with cer
tain 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 registra
tion 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 25% 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 reasonable
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.
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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 princi
pal 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.
Interest on the Security shall be computed on the basis of
a 360-day year of twelve 30-day months.
Prior to due presentment of this Security for registration
of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name
this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
This Security shall be governed by and construed in
accordance with the laws of the State of New York, without
regard to conflicts of laws principles.
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:
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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.
BANK ONE TRUST COMPANY, N.A.,
As Trustee
By.........................................
Authorized Officer
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is
unlimited.
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 Securi
ties of any other series);
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(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 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 and other terms and conditions
of any 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)if other than denominations of $1,000 and any
integral multiple thereof, 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
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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 prin
cipal 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 and,
if other than by a Board Resolution, the manner in which
any election by the Company to defease such Securities
shall be evidenced;
(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;
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(20)any other terms of the series (which terms shall not
be inconsistent with the provisions of this Indenture,
except as permitted by Section 901(5)).
All Securities of any one series shall be substantially
identical except as to denomination and except as may
otherwise be provided in or pursuant to 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 President, its Treasurer
or one of its Vice Presidents, under its corporate seal
reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
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.
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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 make available for delivery such
Securities. If the form or terms of the Securities of the
series have been established by or pursuant to one or more
Board Resolutions 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;
(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 and to general
equity principles; and
(4) that the approval of all regulatory authorities
required under the Federal laws of the United States and
the laws of the State of Maryland in connection with the
issuance of such Securities has been obtained and such
Securities are being issued in conformity with such
approvals.
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 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
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executed by the Trustee by manual signature, and such certif
icate upon any Security shall be conclusive evidence, and
the only evidence, that such Security has been duly authen
ticated 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 make available for delivery,
temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and
with such appropriate insertions, omissions, substitutions
and other variations as the officers executing such
Securities may 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 prep
aration of definitive Securities of such series, the tem
porary 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, with
out 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
make available for delivery 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 make
available for delivery, 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.
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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 make available for
delivery, 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 a
nominee thereof or custodian therefor, and each such
Global Security shall constitute a single Security for all
purposes of this Indenture.
(2) Notwithstanding any other provision in this
Indenture, no Global Security may be exchanged in whole or
in part for Securities registered, and no transfer of a
Global Security in whole or in part may be registered, in
the name of any Person other than the 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.
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(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 make available for delivery 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 make
available for delivery, 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 con
temporaneously 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 obli
gation 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.
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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 Prede
cessor 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.
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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.
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 authen
ticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly
permitted by this Indenture. Unless otherwise directed by a
Company Order, all cancelled Securities held by the Trustee
shall be returned to the Company; 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
shall 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
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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 regis
tration 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
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(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee
under Section 607, 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, 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;
provided that the failure to redeem any Security subject
to a Conditional Redemption shall not be an Event of
Default if any event on which such redemption is so
conditioned does not occur before the Redemption Date; 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
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(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
series of Securities other than that series), and
continuance of such default or breach for a period of 60
days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 10% 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 reorgani
zation, 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 60 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 peti
tion or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or
of any substantial part of its property, or the making by
it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its
debts generally as they become due, or the taking of
corporate action by the Company in furtherance of any such
action; or
(7) any other Event of Default provided with respect to
Securities of that series.
Section 502. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default (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 25% 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
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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) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or
rates prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel;
and
(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
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(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, to the extent that payment
of such interest shall be legally enforceable, interest on
any overdue principal and premium and on any overdue
interest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of col
lection, 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 Securi
ties 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
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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, disburse
ments and advances of the Trustee, its agents and counsel,
be for the ratable benefit of the Holders of the Securities
in respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this
Article shall be applied in the following order, 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.
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 25% in principal amount
of the Outstanding Securities of that series shall have
made written request to the Trustee to institute proceed
ings in respect of such Event of Default in its own name
as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such
request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to
institute any such proceeding; and
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by
the Holders of a majority in principal amount of the
Outstanding Securities of that series;
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it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by vir
tue 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.
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Section 512. Control by Holders.
The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right to
direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exer
cising 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 neither this Section nor the Trust Indenture Act shall
be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit
instituted by the Company or the Trustee.
Section 515. Waiver of Usury, Stay or Extension Laws.
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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 any default of which
the Trustee has actual knowledge within 90 days after a
default occurs hereunder as and to the extent provided by
the Trust Indenture Act; 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;
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(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 written advice of such counsel or any
Opinion of Counsel shall be full and complete
authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture
at the request or direction of any of the Holders pursuant
to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity 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, and, if the Trustee shall
determine to make such further inquiry or investigation,
it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or
attorney;
(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; and
(8) the Trustee shall not be liable for any action
taken, suffered, or omitted to be taken by it in good
faith and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon
it by this Indenture.
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 responsi
bility 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.
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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 the Company and the Trustee shall from
time to time agree in writing 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 each of the Trustee or any predecessor
Trustee for, and to hold it harmless against, any and all
loss, damage, claims, liability or expense including taxes
(other than taxes based upon the income of the Trustee)
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
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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.
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 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 or removal, the Trustee resigning or being
removed may petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the
Securities of such series.
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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 Resolu
tion 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 Secu
rities of any series shall be appointed by Act of the Hold
ers 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 accord
ance 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 appoint
ment 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 juris
diction 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.
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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 pro
vided 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.
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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 corpo
rate 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 Securi
ties shall have been authenticated, but not delivered, by
the Trustee then in office, any successor by merger, conver
sion 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).
Section 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents
with respect to one or more series of Securities which shall
be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original
issue and upon exchange, registration of transfer or partial
redemption thereof or pursuant to Section 306, and Securi
ties 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 authen
tication 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 super
vision 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 speci
fied in this Section.
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Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a
party, or any corporation succeeding to the corporate agency
or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such
corporation shall be otherwise eligible under this Section,
without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company.
The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to
such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or
in case at any time such Authenticating Agent shall cease to
be eligible in accordance with the provisions of this
Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall
give notice of such appointment in the manner provided in
Section 106 to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve. 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.
BANK ONE TRUST COMPANY, N.A.,
As Trustee
By......................................,
As Authenticating Agent
By.......................................
Authorized Officer
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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) monthly, quarterly or semi-annually, as the case
may be, 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;
excluding from any such list names and addresses received by
the Trustee in its capacity as Security Registrar.
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 furnished to the Trustee
as provided in Section 701 and the names and addresses of
Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it
as provided in Section 701 upon receipt of a new list so
furnished.
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).
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A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each
stock exchange upon which any Securities are listed, with
the Commission and with the Company. The Company will
promptly notify the Trustee when any Securities are listed
on any stock exchange.
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 Sec
tion 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, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc., Only on Certain
Terms.
The Company shall not consolidate with or merge into any
other Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, and the
Company shall not permit any Person to consolidate with or
merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the
Company, unless:
(1) in case the Company shall consolidate with or merge
into another Person or convey, transfer or lease its
properties and assets substantially as an entirety to any
Person, the Person formed by such consolidation or into
which the Company is merged or the Person which acquires
by conveyance or transfer, or which leases, the properties
and assets of the Company substantially as an entirety
shall be a corporation, partnership, unincorporated
organization or trust, shall be organized and validly
existing under the laws of the United States of America,
any State thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfac
tory to the Trustee, the due and punctual payment of the
principal of and any premium and interest on all the
Securities and the performance or observance of every
covenant of this Indenture on the part of the Company to
be performed or observed;
(2) immediately after giving effect to such transaction
and treating any indebtedness which becomes an obligation
of the Company or any Subsidiary as a result of such
transaction as having been incurred by the Company or such
Subsidiary at the time of such transaction, no Event of
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Default, and no event which, after notice or lapse of time
or both, would become an Event of Default, shall have
happened and be continuing; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance,
transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such
supplemental indenture comply with this Article and that
all conditions precedent herein provided for relating to
such transaction have been complied with.
Section 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of
the Company into, any other Person or any conveyance,
transfer or lease of the properties and assets of the
Company substantially as an entirety in accordance with
Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to
which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with
the same effect as if such successor Person had been named
as the Company herein, and thereafter, except in the case of
a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the
Securities.
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 and the assumption by any such successor of the
covenants of the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities
(and if such covenants are to be for the benefit of less
than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of
such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default 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
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(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit
or facilitate the issuance of Securities in bearer form,
registrable or not registrable as to principal, and with
or without interest coupons, or to 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 establish the form or terms of Securities of any
series as permitted by Sections 201 and 301; or
(7) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect
to the Securities of one or more series and to add to or
change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 611; or
(8) 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 (8) shall not adversely affect the
interests of the Holders of Securities of any series in
any material respect.
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 instalment 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, or impair the right to
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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 1008, 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 1008,
or the deletion of this proviso, in accordance with the
requirements of Sections 611 and 901(7).
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has
expressly been included solely for the benefit of one or
more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed
not to affect the rights under this Indenture of the Holders
of Securities of any other series.
It shall not be necessary for any Act of Holders 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.
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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.
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 Com
pany, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and made available
for delivery 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
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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, prior to 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 two years 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
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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, notice that
such money remains unclaimed and that, after a date speci
fied 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 Com
pany shall be in default, specifying all such defaults and
the nature and status thereof of which they may have
knowledge.
In addition, the Company shall file with the Trustee
written notice of the occurrence of any Event of Default
within 10 Business Days of its becoming aware of any such
Event of Default.
Section 1005. Existence.
Subject to Article Eight, the Company will do or cause to
be done all things necessary to preserve and keep in full
force and effect its existence, rights (charter and
statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or
franchise if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct
of the business of the Company and that the loss thereof is
not disadvantageous in any material respect to the Holders.
Section 1006. 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 neces
sary 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 main
tenance 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 and not
disadvantageous in any material respect to the Holders.
Section 1007. Payment of Taxes and Other Claims.
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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 Subsid
iary, 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 1008. 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(19), 901(2) or 901(6) for the benefit of the
Holders of such series if before the time for such compli
ance 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 1009. 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.
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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 of the Securities of any series (including any such
redemption affecting only a single Security), the Company
shall, at least (a) 40 days prior to the Redemption Date
fixed by the Company in the case of a redemption of all of
the Securities of any series or (b) 45 days prior to the
Redemption Date fixed by the Company in the case of a
redemption of less than all of the Securities of any series
(in each case unless a shorter notice shall be satisfactory
to the Trustee), notify the Trustee of such Redemption Date,
of the principal amount of Securities of such series to be
redeemed and, if applicable, of the tenor of the Securities
to be redeemed. In the case of any redemption of Securities
prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the
Trustee with an 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 and of a specified
tenor 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 and specified tenor 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.
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Section 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than
60 days prior to the Redemption Date, to each Holder of
Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall identify the Securities to
be redeemed (including CUSIP number, if applicable) and
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,
(6) that the redemption is for a sinking fund, if such
is the case, and
(7) if a notice of redemption relates to a Conditional
Redemption (as defined below), the event or events the
occurrence of which is a condition to such redemption.
Except as provided below, 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 written
request, by the Trustee in the name and at the expense of
the Company and shall be irrevocable.
A notice of redemption may provide that it is subject to
the occurrence of any event before the Redemption Date
specified in such notice ("Conditional Redemption") and such
notice of Conditional Redemption shall be of no effect
unless all such conditions to the redemption have occurred
before the Redemption Date or have been waived by the
Company.
Section 1105. Deposit of Redemption Price.
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Prior to any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company
is acting as its own Paying Agent, segregate and hold in
trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, and (except if
the Redemption Date shall be an Interest Payment Date)
accrued interest 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, instalments 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.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and any
premium shall, until paid, bear interest from the Redemption
Date at the rate prescribed therefor in the Security.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the
Company or the Trustee so requires, 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 make
available for delivery 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.
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.
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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 Redemp
tion 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 35 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 32 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
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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 1006 through 1007, inclusive, and any covenants
provided pursuant to Section 301(19), 901(2) or 901(6) 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 1006 through
1007, inclusive, and any such covenants provided pursuant to
Section 301(19), 901(2) or 901(6)) 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
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specified Section (to the extent so specified in the case of
Section 501(4)), whether directly or indirectly by reason of
any reference elsewhere herein to any such Section or by
reason of any reference in any such Section 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 nationally recognized
firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to
pay and discharge, and which shall be applied by the
Trustee (or 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
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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 91st day after the
date of such deposit (it being understood that this
condition shall not be deemed satisfied until after such
91st 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) 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.
(10) The Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not
made by the Company with the intent of preferring the
Holders of the Securities over the other creditors of the
Company, or with the intent of defeating, hindering,
delaying or defaulting creditors of the Company or others.
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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, 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.
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
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to
the Trustee, are in excess of the amount thereof which would
then be required to be deposited to effect the Defeasance or
Covenant Defeasance, as the case may be, with respect to
such Securities.
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In Witness Whereof, the parties hereto have caused this
Indenture to be duly executed, and their respective
corporate seals to be hereunto affixed and attested, all as
of the day and year first above written.
ALLEGHENY ENERGY, INC.
By....................
...................................
Attest: [SEAL]
......................................
BANK ONE TRUST COMPANY, N.A., as Trustee
By.......................................................
Attest: [SEAL]
......................................
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State of )
) ss.:
County of )
On the .... day of ..........., 2000, before me personally
came ..........................., to me known, who, being by
me duly sworn, did depose and say that he is
.................... of ALLEGHENY ENERGY, INC., one of the
corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that
the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name
thereto by like authority.
...............................................
State of New York )
) ss.:
County of New York )
On the .... day of ..........., 2000, before me personally
came ..........................., to me known, who, being by
me duly sworn, did depose and say that he is
.................... of BANK ONE TRUST COMPANY, N.A., one of
the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corpo
ration; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation; and that he signed
his name thereto by like authority.
...............................................
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