(As filed on November 20, 1998)
File No. 70-9377
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 2 ON
FORM U-1/A
APPLICATION-DECLARATION
UNDER
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
___________________________________
INTERSTATE POWER COMPANY
1000 MAIN STREET
P.O. BOX 769
DUBUQUE, IOWA 52004-07691
(Name of company filing this statement
and address of principal executive offices)
___________________________________
INTERSTATE ENERGY CORPORATION
(Name of top registered holding company parent of each
applicant or declarant)
___________________________________
Erroll B. Davis, Jr., Chief Executive Officer
Interstate Power Company
P.O. Box 192
Madison, Wisconsin 53701-0192
(Name and address of agent for service)
___________________________________
The Commission is also requested to send copies of any
communications in connection with this matter to:
Barbara J. Swan, General Counsel William T. Baker, Jr., Esq.
Steven R. Suleski, Senior Attorney Thelen Reid & Priest LLP
Interstate Energy Corporation 40 West 57th Street
222 West Washington Avenue New York, New York 10019-4097
Madison, Wisconsin 53703-0192
<PAGE>
Paragraphs A-2 and A-3 of Section A of Item 6 of the
initial Form U-1 of IES Utilities Inc. (as filed with the
Securities and Exchange Commission via the Edgar system on
October 9, 1998), as amended by Amendment No. 1 thereto (as filed
with the Securities and Exchange Commission via the Edgar system
on October 23, 1998) (together, the "Form U-1"), are hereby
deleted and replaced with the following:
"A-2 Form of Indenture for Senior Unsecured Debt
Securities, between the Company and the
Trustee.
A-3 Form of Indenture for Unsecured Subordinated
Debt Securities, between the Company and the
Trustee."
Copies of such forms of indentures are attached hereto as
Exhibits A-2 and A-3.
Paragraph C of Section A of Item 6 of the Form U-1 is
hereby deleted and replaced with the following:
"C None (to be filed by post-effective
amendment, as necessary)."
Paragraph F of Section A of Item 6 of the Form U-1 is
hereby deleted and replaced with the following:
"F Opinion of counsel for the Company."
A copy of such opinion is attached hereto as Exhibit F.
Paragraphs G-1 and G-2 of Section A of Item 6 of the
Form U-1 are hereby deleted and replaced with the following:
"G-1 Financial Data Schedule for Interstate
(incorporated by reference to Exhibit 27.1 to
the Interstate's Form 10-Q for the quarter
ended September 30, 1998, File No. 001-
09894).
G-2 Financial Data Schedule for the Company."
A copy of the financial data schedule referred to in G-2 above is
attached hereto as Exhibit G-2.
Section B of Item 6 of the Form U-1 is hereby deleted
and replaced with the following:
"69. Balance sheet of the Company at September 30,
1998.
70. Statement of income and surplus of the Company for
the nine months ended September 30, 1998.
<PAGE>
71. Consolidated balance sheet of Interstate at
September 30, 1998 (incorporated by reference to
the Company's Form 10-Q for the quarter ended
September 30, 1998, File No. 001-09894).
72. Consolidated statement of income and surplus of
Interstate for the nine months ended September 30,
1998 (incorporated by reference to the Company's
Form 10-Q for the quarter ended September 30,
1998, File No. 001-09894).
73. Since September 30, 1998, there have been no
material adverse changes, not in the ordinary
course of business, in the financial condition of
the Company or of Interstate and its subsidiaries
consolidated from that set forth in or
contemplated by the foregoing financial
statements."
Copies of the financial statements referred to in paragraphs 69
and 70 above are attached hereto as Exhibits 69 and 70.
[The remainder of this page is left intentionally blank.]
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Public Utility
Holding Company Act of 1935, the undersigned company has duly
caused this amendment to be signed on its behalf by the
undersigned thereunto duly authorized.
Dated: November 20, 1998 INTERSTATE POWER COMPANY
By: /s/ Erroll B. Davis, Jr.
------------------------------
Name: Erroll B. Davis, Jr.
Title: Chief Executive Officer
-3-
<PAGE>
EXHIBIT INDEX
Exhibit Description
------- -----------
A-2 Form of Indenture for Senior Unsecured
Debt Securities, between the Company and
the Trustee.
A-3 Form of Indenture for Unsecured
Subordinated Debt Securities, between
the Company and the Trustee.
F Opinion of counsel for the Company.
G-2 Financial Data Schedule for the Company.
69. Balance sheet of the Company at
September 30, 1998.
70. Statement of income and surplus of the
Company for the nine months ended
September 30, 1998.
Exhibit A-2
------------------------------------------
INTERSTATE POWER COMPANY
TO
______________________, Trustee
---------
Indenture
(For Senior Unsecured Debt Securities)
Dated as of ,
---------- ----
------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
RECITAL OF THE COMPANY...................................................... 1
ARTICLE ONE................................................................. 1
Definitions and Other Provisions of General Application..................... 1
SECTION 101. Definitions.......................................... 1
Act....................................................... 2
Affiliate................................................. 2
Authenticating Agent...................................... 2
Authorized Officer........................................ 2
Board of Directors........................................ 2
Board Resolution.......................................... 2
Business Day.............................................. 2
Commission................................................ 2
Company................................................... 2
Company Request or company order........................ 2
Corporate Trust Office.................................... 3
Defaulted Interest........................................ 3
Discount Security......................................... 3
Dollar or $............................................. 3
Eligible Obligations...................................... 3
Event of Default.......................................... 3
Governmental Authority.................................... 3
Government Obligations.................................... 3
Holder.................................................... 3
Indenture................................................. 4
Interest Payment Date..................................... 4
Lien...................................................... 4
Maturity ................................................. 4
Mortgages................................................. 4
Officer's Certificate..................................... 4
Opinion of Counsel........................................ 4
Outstanding............................................... 4
Paying Agent.............................................. 5
Periodic Offering......................................... 6
Permitted liens........................................... 6
Person.................................................... 7
Place of Payment.......................................... 8
Predecessor Security...................................... 8
Prepaid Lien.............................................. 8
Redemption Date........................................... 8
Redemption Price.......................................... 8
Regular Record Date....................................... 8
Required Currency......................................... 8
Responsible Officer....................................... 8
Securities................................................ 8
Security Register and security registrar................ 8
Special Record Date....................................... 8
</TABLE>
<PAGE>
<TABLE>
<S> <C>
Stated Interest Rate...................................... 8
Stated Maturity........................................... 8
Tangible Net Worth........................................ 8
Tranche................................................... 9
Trust Indenture Act....................................... 9
Trustee................................................... 9
United States............................................. 9
SECTION 102. Compliance Certificates and Opinions................. 9
SECTION 103. Form of Documents Delivered to Trustee............... 10
SECTION 104. Acts of Holders...................................... 10
SECTION 105. Notices, Etc. to Trustee and Company................. 12
SECTION 106. Notice to Holders of Securities; Waiver.............. 13
SECTION 107. Conflict with Trust Indenture Act.................... 13
SECTION 108. Effect of Headings and Table of Contents............. 13
SECTION 109. Successors and Assigns............................... 13
SECTION 110. Separability Clause.................................. 13
SECTION 111. Benefits of Indenture................................ 13
SECTION 112. Governing Law........................................ 14
SECTION 113. Legal Holidays....................................... 14
ARTICLE TWO................................................................. 14
Security Forms.............................................................. 14
SECTION 201. Forms Generally...................................... 14
SECTION 202. Form of Trustee's Certificate of Authentication...... 15
ARTICLE THREE............................................................... 15
The Securities.............................................................. 15
SECTION 301. Amount Unlimited; Issuable in Series................. 15
SECTION 302. Denominations........................................ 18
SECTION 303. Execution, Authentication, Delivery and Dating....... 18
SECTION 304. Temporary Securities................................. 20
SECTION 305. Registration, Registration of Transfer and Exchange.. 21
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities..... 22
SECTION 307. Payment of Interest; Interest Rights Preserved....... 23
SECTION 308. Persons Deemed Owners................................ 24
SECTION 309. Cancellation by Security Registrar................... 24
SECTION 310. Computation of Interest....................................... 24
SECTION 311. Payment to Be in Proper Currency..................... 25
SECTION 312. Extension of Interest Payment........................ 25
ARTICLE FOUR................................................................ 25
Redemption of Securities.................................................... 25
SECTION 401. Applicability of Article............................. 25
SECTION 402. Election to Redeem; Notice to Trustee................ 25
SECTION 403. Selection of Securities to Be Redeemed............... 26
SECTION 404. Notice of Redemption................................. 26
SECTION 405. Securities Payable on Redemption Date................ 27
SECTION 406. Securities Redeemed in Part.......................... 27
ARTICLE FIVE................................................................ 28
</TABLE>
<PAGE>
<TABLE>
<S> <C>
Sinking Funds............................................................... 28
SECTION 501. Applicability of Article............................. 28
SECTION 502. Satisfaction of Sinking Fund Payments with Securities 28
SECTION 503. Redemption of Securities for Sinking Fund............ 29
ARTICLE SIX................................................................. 29
Covenants................................................................... 29
SECTION 601. Payment of Principal, Premium and Interest........... 29
SECTION 602. Maintenance of Office or Agency...................... 29
SECTION 603. Money for Securities Payments to Be Held in Trust.... 30
SECTION 604. Corporate Existence.................................. 31
SECTION 605. Maintenance of Properties............................ 31
SECTION 606. Annual Officer's Certificate as to Compliance........ 32
SECTION 607. Waiver of Certain Covenants.......................... 32
SECTION 608. Limitations on Liens................................. 32
ARTICLE SEVEN............................................................... 33
Satisfaction and Discharge.................................................. 33
SECTION 701. Satisfaction and Discharge of Securities............. 33
SECTION 702. Satisfaction and Discharge of Indenture.............. 35
SECTION 703. Application of Trust Money........................... 36
ARTICLE EIGHT............................................................... 37
Events of Default; Remedies................................................. 37
SECTION 801. Events of Default.................................... 37
SECTION 802. Acceleration of Maturity; Rescission and Annulment... 38
SECTION 803. Collection of Indebtedness and Suits for Enforcement
by TRUSTEE......................................... 39
SECTION 804. Trustee May File Proofs of Claim..................... 39
SECTION 805. Trustee May Enforce Claims Without Possession of
Securities......................................... 40
SECTION 806. Application of Money Collected....................... 40
SECTION 807. Limitation on Suits.................................. 40
SECTION 808. Unconditional Right of Holders to Receive Principal,
Premium and Interest............................... 41
SECTION 809. Restoration of Rights and Remedies................... 41
SECTION 810. Rights and Remedies Cumulative....................... 41
SECTION 811. Delay or Omission Not Waiver......................... 42
SECTION 812. Control by Holders of Securities..................... 42
SECTION 813. Waiver of Past Defaults.............................. 42
SECTION 814. Undertaking for Costs................................ 43
SECTION 815. Waiver of Stay or Extension Laws..................... 43
ARTICLE NINE................................................................ 43
The Trustee................................................................. 43
SECTION 901. Certain Duties and Responsibilities.................. 43
SECTION 902. Notice of Defaults................................... 44
SECTION 903. Certain Rights of Trustee............................ 45
SECTION 904. Not Responsible for Recitals or Issuance of
Securities......................................... 46
SECTION 905. May Hold Securities.................................. 46
SECTION 906. Money Held in Trust.................................. 46
SECTION 907. Compensation and Reimbursement....................... 46
SECTION 908. Disqualification; Conflicting Interests.............. 47
</TABLE>
<PAGE>
<TABLE>
<S> <C>
SECTION 909. Corporate Trustee Required; Eligibility.............. 47
SECTION 910. Resignation and Removal; Appointment of Successor.... 48
SECTION 911. Acceptance of Appointment by Successor............... 49
SECTION 912. Merger, Conversion, Consolidation or Succession
to Business........................................ 50
SECTION 913. Preferential Collection of Claims Against Company.... 50
SECTION 914. Co-trustees and Separate Trustees.................... 51
SECTION 915. Appointment of Authenticating Agent.................. 52
ARTICLE TEN................................................................. 54
Holders' Lists and Reports by Trustee and Company........................... 54
SECTION 1001. Lists of Holders.................................... 54
SECTION 1002. Reports by Trustee and Company...................... 54
ARTICLE ELEVEN.............................................................. 54
Consolidation, Merger, Conveyance or Other Transfer......................... 54
SECTION 1101. Company May Consolidate, Etc., Only on Certain
Terms............................................. 54
SECTION 1102. Successor Corporation Substituted................... 55
ARTICLE TWELVE.............................................................. 55
Supplemental Indentures..................................................... 55
SECTION 1201. Supplemental Indentures Without Consent of Holders.. 55
SECTION 1202. Supplemental Indentures With Consent of Holders..... 57
SECTION 1203. Execution of Supplemental Indentures................ 58
SECTION 1204. Effect of Supplemental Indentures................... 58
SECTION 1205. Conformity With Trust Indenture Act................. 58
SECTION 1206. Reference in Securities to Supplemental Indentures.. 59
SECTION 1207. Modification Without Supplemental Indenture......... 59
ARTICLE THIRTEEN............................................................ 59
Meetings of Holders; Action Without Meeting................................. 59
SECTION 1301. Purposes for Which Meetings May Be Called........... 59
SECTION 1302. Call, Notice and Place of Meetings.................. 59
SECTION 1303. Persons Entitled to Vote at Meetings................ 60
SECTION 1304. Quorum; Action...................................... 60
SECTION 1305. Attendance at Meetings; Determination of
Voting Rights; Conduct and Adjournment
of Meetings....................................... 61
SECTION 1306. Counting Votes and Recording Action of Meetings..... 62
SECTION 1307. Action Without Meeting.............................. 62
ARTICLE FOURTEEN............................................................ 62
Immunity of Incorporators, Stockholders, Officers and Directors............. 62
SECTION 1401. Liability Solely Corporate.......................... 62
</TABLE>
<PAGE>
INDENTURE, dated as of _____________, ____ between INTERSTATE
POWER COMPANY, a corporation duly organized and existing under the laws of the
State of Iowa (herein called the "Company"), having its principal office at
1000 Main Street, Dubuque, Iowa 52004-07691, and ____________________________,
a national banking association organized and existing under the laws of the
United States of America, having its principal corporate trust office at
__________________________________________________________________, as Trustee
(herein called the "Trustee").
RECITAL 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 senior
unsecured debentures, notes or other evidences of indebtedness (herein called
the "Securities"), to be issued in one or more series as contemplated herein;
and all acts necessary to make this Indenture a valid agreement of the Company
have been performed.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires, capitalized terms
used herein shall have the meanings assigned to them in Article One of this
Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of
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:
(a) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(b) all terms used herein without definition which are defined in
the Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with respect
to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United States at
the date of such computation or, at the election of the Company from time
to time, at the date of the execution and delivery of this Indenture;
provided, however, that in determining generally accepted accounting
principles applicable to the Company, the Company shall, to the extent
required, conform to any order, rule
1
<PAGE>
or regulation of any administrative agency, regulatory authority or
other governmental body having jurisdiction over the Company; and
(d) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Nine, are defined in
that Article.
"ACT", when used with respect to any Holder of a Security, has
the meaning specified in Section 104.
"AFFILIATE" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or through one or
more intermediaries, 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 (other than the Company
or an Affiliate of the Company) authorized by the Trustee to act on behalf of
the Trustee to authenticate one or more series of Securities.
"AUTHORIZED OFFICER" means the Chairman of the Board, the
President, any Vice President, the Treasurer, any Assistant Treasurer or any
other duly authorized officer of the Company.
"BOARD OF DIRECTORS" means either the board of directors of the
Company or any committee thereof duly authorized to act in respect of matters
relating to this Indenture.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"BUSINESS DAY", when used with respect to a Place of Payment or
any other particular location specified in the Securities or this Indenture,
means any day, other than a Saturday or Sunday, which is not a day on which
banking institutions or trust companies in such Place of Payment or other
location are generally authorized or required by law, regulation or executive
order to remain closed, except as may be otherwise specified as contemplated by
Section 301.
"COMMISSION" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the date of execution and delivery of
this Indenture such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body, if any, performing
such duties at such time.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture 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 an Authorized Officer and delivered
to the Trustee.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which
at any particular time its corporate trust business shall be principally
administered, which office at the date of execution and delivery of this
Indenture is located at ______________________________________________________.
2
<PAGE>
"CORPORATION" means a corporation, association, company, joint
stock company or business trust.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DISCOUNT SECURITY" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 802.
"INTEREST" with respect to a Discount Security means interest, if any, borne by
such Security at a Stated Interest Rate.
"DOLLAR" or "$" means a dollar or other equivalent unit in such
coin or currency of the United States as at the time shall be legal tender for
the payment of public and private debts.
"ELIGIBLE OBLIGATIONS" means:
(a) with respect to Securities denominated in Dollars, Government
Obligations; or
(b) with respect to Securities denominated in a currency other
than Dollars or in a composite currency, such other obligations or
instruments as shall be specified with respect to such Securities, as
contemplated by Section 301.
"EVENT OF DEFAULT" has the meaning specified in Section 801.
"GOVERNMENTAL AUTHORITY" means the government of the United
States or of any State or Territory thereof or of the District of Columbia or of
any county, municipality or other political subdivision of any thereof, or any
department, agency, authority or other instrumentality of any of the foregoing.
"GOVERNMENT OBLIGATIONS" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
entitled to the benefit of the full faith and credit thereof; and
(b) certificates, depositary receipts or other instruments
which evidence a direct ownership interest in obligations described in
clause (a) above or in any specific interest or principal payments due
in respect thereof; provided, however, that the custodian of such
obligations or specific interest or principal payments shall be a bank
or trust company (which may include the Trustee or any Paying Agent)
subject to Federal or state supervision or examination with a combined
capital and surplus of at least $50,000,000; and provided, further,
that except as may be otherwise required by law, such custodian shall
be obligated to pay to the holders of such certificates, depositary
receipts or other instruments the full amount received by such
custodian in respect of such obligations or specific payments and shall
not be permitted to make any deduction therefrom.
"HOLDER" means a Person in whose name a Security is registered in
the Security Register.
"INDENTURE" means this instrument as originally executed and
delivered 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 and shall include the terms of particular series of Securities
established as contemplated by Section 301.
3
<PAGE>
"INTEREST PAYMENT DATE", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"LIEN" means any mortgage, pledge, security interest, encumbrance,
easement, lease, reservation, restriction, servitude, charge, or similar right
or lien of any kind, including, without limitation, any conditional sale of
other title retention agreement, any lease in the nature thereof, any filing of,
or agreement to give, any financing statement under the Uniform Commercial Code
of any jurisdiction, and any defect or irregularity in record title.
"MATURITY", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as provided in such Security or in this Indenture, whether at the
Stated Maturity, by declaration of acceleration, upon call for redemption or
otherwise.
"MORTGAGE" means the Company's Indenture, dated as of January 1, 1948,
to The Chase National Bank of the City of New York (now known as The Chase
Manhattan Bank (N.A.)) and Carl E. Buckley, as Trustees.
"OFFICER'S CERTIFICATE" means a certificate signed by an Authorized
Officer and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be
counsel for the Company, or other counsel acceptable to the Trustee.
"OUTSTANDING", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities deemed to have been paid in accordance with
Section 701; and
(c) 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 and the Company that such
Securities are held by a bona fide purchaser or purchasers in whose
hands such Securities are valid obligations of the Company;
provided, however, that in determining whether or not the Holders of the
requisite principal amount of the Securities Outstanding under this Indenture,
or the Outstanding Securities of any series or Tranche, have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or whether
or not a quorum is present at a meeting of Holders of Securities,
(x) Securities owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor
(unless the Company, such Affiliate or such obligor owns all Securities
Outstanding under this Indenture, or all Outstanding Securities of
4
<PAGE>
each such series and each such Tranche, as the case may be, determined
without regard to this clause (x)) shall be disregarded and deemed not
to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver or upon any such
determination as to the presence of a quorum, only Securities which the
Trustee knows to be so owned shall be so disregarded; provided,
however, that 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;
(y) the principal amount of a Discount Security that shall be
deemed to be Outstanding for such purposes shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity
thereof pursuant to Section 802; and
(z) the principal amount of any Security which is denominated
in a currency other than Dollars or in a composite currency that shall
be deemed to be Outstanding for such purposes shall be the amount of
Dollars which could have been purchased by the principal amount (or, in
the case of a Discount Security, the Dollar equivalent on the date
determined as set forth below of the amount determined as provided in
(y) above) of such currency or composite currency evidenced by such
Security, in each such case certified to the Trustee in an Officer's
Certificate, based (1) on the average of the mean of the buying and
selling spot rates quoted by three banks which are members of the New
York Clearing House Association selected by the Company in effect at
11:00 A.M. (New York time) in The City of New York on the fifth
Business Day preceding any such determination or (2) if on such fifth
Business Day it shall not be possible or practicable to obtain such
quotations from such three banks, on such other quotations or
alternative methods of determination which shall be as consistent as
practicable with the method set forth in (1) above;
provided, further, that, in the case of any Security the principal of which is
payable from time to time without presentment or surrender, the principal amount
of such Security that shall be deemed to be Outstanding at any time for all
purposes of this Indenture shall be the original principal amount thereof less
the aggregate amount of principal thereof theretofore paid.
"PAYING AGENT" means any Person, including the Company, authorized by
the Company to pay the principal of and premium, if any, or interest, if any, on
any Securities on behalf of the Company.
"PERIODIC OFFERING" means an offering of Securities of a series from
time to time any or all of the specific terms of which Securities, including
without limitation the rate or rates of interest, if any, thereon, the Stated
Maturity or Maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Company or its agents upon the
issuance of such Securities.
"PERMITTED LIENS" means, at any time, any of the following:
(a) Liens for taxes, assessments and other governmental
charges or requirements not delinquent or which can thereafter be paid
without penalty or which are currently being contested in good faith by
appropriate proceedings;
5
<PAGE>
(b) mechanics', workmen's, repairmen's, materialmen's,
warehousemen's and carriers' Liens, Liens or privileges of any
employees of the Company for salary or wages earned, but not yet
payable, and other Liens, including without limitation Liens for
worker's compensation awards, arising in the ordinary course of
business for charges or requirements which are not delinquent or which
are being contested in good faith and by appropriate proceedings;
(c) Liens in respect of judgments or awards with respect to
which the Company shall (i) in good faith be prosecuting an appeal or
other proceeding for review and with respect to which the Company shall
have secured a stay of execution pending such appeal or other
proceeding or (ii) have the right to prosecute an appeal or other
proceeding for review;
(d) easements, leases, reservations or other rights of others
in, on and/or over, and laws, regulations and restrictions affecting,
and defects and irregularities in record title to, the property of the
Company or any part thereof; provided, however, that such easements,
leases, reservations, rights, laws, regulations, restrictions, defects
and irregularities do not, in the reasonable judgment of the Company,
in the aggregate materially impair the use by the Company of its
property considered as a whole for the purposes for which it is held by
the Company;
(e) any defects or irregularities in title to any
rights-of-way and/or to any real estate used or to be used primarily
for right-of-way purposes or held under lease, easement, license or
similar right; provided, however, that (i) the Company shall have
obtained from the apparent owner of the lands or estates therein
covered by any such right-of-way a sufficient right, by the terms of
the instrument granting such right-of-way, lease, easement, license or
similar right, to the use thereof for the purpose for which the Company
acquired the same, (ii) the Company has power under eminent domain, or
similar statutes, to remove such defects or irregularities or (iii)
such defects or irregularities may be otherwise remedied without undue
effort or expense;
(f) Liens securing indebtedness neither created, assumed nor
guaranteed by the Company nor on account of which it customarily pays
interest, existing at the date of the execution and delivery of this
Indenture, or, as to property hereafter acquired, at the time of the
acquisition thereof by the Company, upon real estate or rights in or
relating to real estate acquired by the Company for rights of way for
distribution and transmission lines and for pipes, substations,
structures and appurtenances thereto;
(g) leases existing at the date of the execution and delivery
of this Indenture affecting property owned by the Company at said date
and renewals and extensions thereof and leases for a term of not more
than ten (10) years (including extensions or renewals at the option of
the tenant) affecting property acquired by the Company after said date;
(h) any controls, restrictions, obligations, duties and/or
other burdens imposed by any federal, state, municipal or other law, or
by any rule, regulation or order of any Governmental Authority, upon
any property of the Company or the operation or use thereof or upon the
Company with respect to any of its property or the operation or use
thereof or with respect to any franchise, grant, license, permit or
public purpose requirement, or any rights reserved to or otherwise
vested in any Governmental Authority to impose any such controls,
restrictions, obligations, duties and/or other burdens;
6
<PAGE>
(i) Liens granted on air or water pollution control or sewage
or solid waste disposal facilities of the Company in connection with
the issuance of industrial development revenue bonds;
(j) any right which any Governmental Authority may have by
virtue of any franchise, license, contract or statute to purchase, or
designate a purchaser of or order the sale of, any property of the
Company upon payment of cash or reasonable compensation therefor or to
terminate any franchise, license or other rights or to regulate the
property and business of the Company;
(k) any Liens which have been bonded for the full amount in
dispute or for the payment of which other adequate security
arrangements have been made or which, in the opinion of counsel, are
not material;
(l) Prepaid Liens;
(m) Liens resulting from good faith deposits made in
connection with bids, tenders, contracts or leases to which the Company
is a party and Liens resulting from deposits made to secure public or
statutory obligations of the Company or for the purpose of obtaining a
stay or discharge in the course of any legal proceedings;
(n) the pledge or assignment in the ordinary course of
business of electricity, gas (either natural or artificial) or steam,
accounts receivable or customers' installment paper;
(o) rights reserved to or vested in others to take or receive
any part of the electricity, gas (either natural or artificial), steam
or any by-products thereof generated or produced by or from any
properties of the Company or with respect to any other rights
concerning electricity, gas (either natural or artificial) or steam
supply, transportation, or storage which are in use in the ordinary
course of the electricity, gas (either natural or artificial) or steam
business;
(p) any landlord's Lien;
(q) Liens incurred pursuant to Section 907; and
(r) Liens or encumbrances not otherwise permitted if, at the
time of incurrence and after giving effect thereto, the aggregate of
all obligations of the Company and its subsidiaries secured thereby
does not exceed 10% of Tangible Net Worth.
"PERSON" means any individual, corporation, partnership, joint venture,
trust or unincorporated organization or any Governmental Authority thereof.
"PLACE OF PAYMENT", when used with respect to the Securities of any
series, or Tranche thereof, means the place or places, specified as contemplated
by Section 301, at which, subject to Section 602, principal of and premium, if
any, and interest, if any, on the Securities of such series or Tranche are
payable.
"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
7
<PAGE>
of a mutilated, destroyed, lost or stolen Security shall be deemed (to the
extent lawful) to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"PREPAID LIEN" means any Lien securing indebtedness for the payment of
which money in the necessary amount shall have been irrevocably deposited in
trust with the trustee or other holder of such Lien; provided, however, that if
such indebtedness is to be redeemed or otherwise prepaid prior to the stated
maturity thereof, any notice requisite to such redemption or prepayment shall
have been given in accordance with the mortgage or other instrument creating
such Lien or irrevocable instructions to give such notice shall have been given
to such trustee or other holder.
"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.
"REQUIRED CURRENCY" has the meaning specified in Section 311.
"RESPONSIBLE OFFICER", when used with respect to the Trustee, means any
officer of the Trustee assigned by the Trustee to administer its corporate trust
matters.
"SECURITIES" has the meaning stated in the first recital of this
Indenture and more particularly means any securities authenticated and delivered
under this Indenture.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective
meanings specified in Section 305.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest on the
Securities of any series means a date fixed by the Trustee pursuant to Section
307.
"STATED INTEREST RATE" means a rate (whether fixed or variable) at
which an obligation by its terms is stated to bear simple interest. Any
calculation or other determination to be made under this Indenture by reference
to the Stated Interest Rate on a Security shall be made without regard to the
effective interest cost to the Company of such Security and without regard to
the Stated Interest Rate on, or the effective cost to the Company of, any other
indebtedness the Company's obligations in respect of which are evidenced or
secured in whole or in part by such Security.
"STATED MATURITY", when used with respect to any obligation or any
installment of principal thereof or interest thereon, means the date on which
the principal of such obligation or such installment of principal or interest is
stated to be due and payable (without regard to any provisions for redemption,
prepayment, acceleration, purchase or extension).
"TANGIBLE NET WORTH" means (i) common stockholders' equity appearing on
the most recent balance sheet of the Company (or consolidated balance sheet of
the Company and its subsidiaries if the Company then has one or more
subsidiaries the accounts of which are consolidated with the accounts of the
Company) prepared in accordance with generally accepted accounting principles
less (ii) intangible assets (excluding intangible assets recoverable through
rates as prescribed by applicable regulatory authorities).
8
<PAGE>
"TRANCHE" means a group of Securities which (a) are of the same series
and (b) have identical terms except as to principal amount and/or date of
issuance.
"TRUST INDENTURE ACT" means, as of any time, the Trust Indenture Act of
1939, or any successor statute, as in effect at such time.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
with respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "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.
"UNITED STATES" means the United States of America, its Territories,
its possessions and other areas subject to its political jurisdiction.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided in this Indenture, upon
any application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall, if requested by the
Trustee, furnish to the Trustee an Officer's Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each Person signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such Person, such
Person has made such examination or investigation as is necessary to
enable such Person to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
Person, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
9
<PAGE>
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 such Officer's Certificate or opinion are
based are erroneous. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Whenever, subsequent to the receipt by the Trustee of any
Board Resolution, Officer's Certificate, Opinion of Counsel or other document or
instrument, a clerical, typographical or other inadvertent or unintentional
error or omission shall be discovered therein, a new document or instrument may
be substituted therefor in corrected form with the same force and effect as if
originally filed in the corrected form and, irrespective of the date or dates of
the actual execution and/or delivery thereof, such substitute document or
instrument shall be deemed to have been executed and/or delivered as of the date
or dates required with respect to the document or instrument for which it is
substituted. Anything in this Indenture to the contrary notwithstanding, if any
such corrective document or instrument indicates that action has been taken by
or at the request of the Company which could not have been taken had the
original document or instrument not contained such error or omission, the action
so taken shall not be invalidated or otherwise rendered ineffective but shall be
and remain in full force and effect, except to the extent that such action was a
result of willful misconduct or bad faith. Without limiting the generality of
the foregoing, any Securities issued under the authority of such defective
document or instrument shall nevertheless be the valid obligations of the
Company entitled to the benefits of this Indenture equally and ratably with all
other Outstanding Securities, except as aforesaid.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, election, waiver or other action provided by this Indenture to
be made, given or taken by Holders may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such
Holders in person or by an agent duly appointed in writing or,
alternatively, may be embodied in and evidenced by the record of
Holders voting in favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders duly called and held in
accordance with the provisions of Article Thirteen, or a combination of
such instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when such
instrument or instruments or record or both are delivered to the
Trustee and, where it is hereby expressly required, to the Company.
Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Holders signing such instrument or instruments
and so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the holding
by any Person of a Security, shall be sufficient for any purpose of
this Indenture and (subject to Section 901) conclusive in favor of the
Trustee and the Company, if made in the manner provided in this
Section. The record of any meeting of Holders shall be proved in the
manner provided in Section 1306.
10
<PAGE>
(b) 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 or may be proved in any other manner which
the Trustee and the Company deem sufficient. 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.
(c) The principal amount (except as otherwise contemplated in
clause (y) of the proviso to the definition of Outstanding) and serial
numbers of Securities held by any Person, and the date of holding the
same, shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act of a Holder shall bind every
future Holder of the same Security and the Holder of every Security
issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee or the Company in reliance thereon,
whether or not notation of such action is made upon such Security.
(e) Until such time as written instruments shall have been
delivered to the Trustee with respect to the requisite percentage of
principal amount of Securities for the action contemplated by such
instruments, any such instrument executed and delivered by or on behalf
of a Holder may be revoked with respect to any or all of such
Securities by written notice by such Holder or any subsequent Holder,
proven in the manner in which such instrument was proven.
(f) Securities of any series, or any Tranche thereof,
authenticated and delivered after any Act of Holders may, and shall if
required by the Trustee, bear a notation in form approved by the
Trustee as to any action taken by such Act of Holders. If the Company
shall so determine, new Securities of any series, or any Tranche
thereof, so modified as to conform, in the opinion of the Trustee and
the Company, to such action may be prepared and executed by the Company
and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series or Tranche.
(g) If the Company shall solicit from Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, by Company Order, fix in advance a
record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or
other Act, but the Company shall have no obligation to do so. If such a
record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such
record date, but only the Holders of record at the close of business on
the record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of the
Outstanding Securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or
other Act, and for that purpose the Outstanding Securities shall be
computed as of the record date.
SECTION 105. NOTICES, ETC. TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice,
consent, election, 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, the Trustee by any Holder or by the Company, or the Company by the Trustee
or by any Holder, shall be sufficient for every purpose hereunder (unless
otherwise herein
11
<PAGE>
expressly provided) if in writing and delivered personally to an officer or
other responsible employee of the addressee, or transmitted by facsimile
transmission, telex or other direct written electronic means to such telephone
number or other electronic communications address as the parties hereto shall
from time to time designate, or transmitted by registered mail, charges prepaid,
to the applicable address set opposite such party's name below or to such other
address as either party hereto may from time to time designate:
If to the Trustee, to:
----------------------------------
----------------------------------
----------------------------------
----------------------------------
Attention: ______________________
Telephone: ______________________
Telecopy: _______________________
If to the Company, to:
Interstate Power Company
1000 Main Street
P.O. Box 769
Dubuque, Iowa 52004-07691
Attention: General Counsel
Telephone: __________________
Telecopy: __________________
Any communication contemplated herein shall be deemed to have
been made, given, furnished and filed if personally delivered, on the date of
delivery, if transmitted by facsimile transmission, telex or other direct
written electronic means, on the date of transmission, and if transmitted by
certified or registered mail, on the date of receipt.
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided herein, where this
Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given, and shall be deemed given, to Holders if in writing and
mailed, first-class postage prepaid, to each Holder affected by such event, at
the address of such Holder as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice.
In 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 to
Holders by mail, then such notification as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every purpose
hereunder. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders.
Any notice required by this Indenture may be waived in writing
by the Person entitled to receive such notice, either before or after the event
otherwise to be specified therein, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the
12
<PAGE>
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision of this Indenture limits, qualifies or
conflicts with another provision hereof which is required or deemed to be
included in this Indenture by, or is otherwise governed by, any of the
provisions of the Trust Indenture Act, such other provision shall control; and
if any provision hereof otherwise conflicts with the Trust Indenture Act, the
Trust Indenture Act shall control.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings in this Indenture 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
and Trustee shall bind their respective successors and assigns, whether so
expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or the Securities
shall be held to be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or the Securities, express or
implied, shall give to any Person, other than the parties hereto, their
successors hereunder, and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York, except to the
extent that the law of any other jurisdiction shall be mandatorily applicable.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities other than a provision in Securities of any series, or any Tranche
thereof, or in the Board Resolution or Officer's Certificate which establishes
the terms of the Securities of such series or Tranche, which specifically states
that such provision shall apply in lieu of this Section) payment of interest or
principal and premium, if any, need not be made at such Place of Payment on such
date, but may be made on the next succeeding Business Day at such Place of
Payment, except that if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business Day in
each case with the same force and effect as if made on the Interest Payment Date
or Redemption Date, or at the Stated Maturity, and, if such payment is made or
duly provided for on such Business Day, no interest shall accrue on the amount
13
<PAGE>
so payable for the period from and after such Interest Payment Date, Redemption
Date or Stated Maturity, as the case may be, to such Business Day.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The definitive Securities of each series shall be in
substantially the form or forms thereof established in the indenture
supplemental hereto establishing such series or in a Board Resolution
establishing such series, or in an Officer's Certificate pursuant to such
supplemental indenture or Board Resolution, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. If the form or forms of
Securities of any series are established in a Board Resolution or in an
Officer's Certificate pursuant to a Board Resolution, such Board Resolution and
Officer's Certificate, if any, shall be 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.
Unless otherwise specified as contemplated by Sections 301 or
1201 (g), the Securities of each series shall be issuable in registered form
without coupons. The definitive Securities shall be produced in such manner as
shall be determined by the officers executing such Securities, as evidenced by
their execution thereof.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in
substantially the form set forth below:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
___________________________________
___________, Trustee
By: _______________________________
Authorized Officer
ARTICLE THREE
14
<PAGE>
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. Prior to
the authentication and delivery of Securities of any series there shall be
established by specification in a supplemental indenture or in a Board
Resolution, or in an Officer's Certificate pursuant to a supplemental indenture
or a Board Resolution:
(a) the title of the Securities of such series (which shall
distinguish the Securities of such series from Securities of all other
series);
(b) any limit upon the aggregate principal amount of the
Securities of such 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 such series pursuant to Section 304, 305, 306, 406
or 1206 and, except for any Securities which, pursuant to Section 303,
are deemed never to have been authenticated and delivered hereunder);
(c) the Person or Persons (without specific identification) to
whom interest on Securities of such series, or any Tranche thereof,
shall be payable on any Interest Payment Date, if other than the
Persons in whose names such Securities (or one or more Predecessor
Securities) are registered at the close of business on the Regular
Record Date for such interest;
(d) the date or dates on which the principal of the Securities
of such series, or any Tranche thereof, is payable or any formula or
other method or other means by which such date or dates shall be
determined, by reference to an index or other fact or event
ascertainable outside of this Indenture or otherwise (without regard to
any provisions for redemption, prepayment, acceleration, purchase or
extension);
(e) the rate or rates at which the Securities of such series,
or any Tranche thereof, shall bear interest, if any (including the rate
or rates at which overdue principal shall bear interest, if different
from the rate or rates at which such Securities shall bear interest
prior to Maturity, and, if applicable, the rate or rates at which
overdue premium or interest shall bear interest, if any), or any
formula or other method or other means by which such rate or rates
shall be determined, by reference to an index or other fact or event
ascertainable outside of this Indenture or otherwise; the date or dates
from which such interest shall accrue; the Interest Payment Dates on
which such interest shall be payable and the Regular Record Date, if
any, for the interest payable on such Securities on any Interest
Payment Date; the right of the Company, if any, to extend the interest
payment periods and the duration of any such extension as contemplated
by Section 312; and the basis of computation of interest, if other than
as provided in Section 310;
(f) the place or places at which or methods by which (1) the
principal of and premium, if any, and interest, if any, on Securities
of such series, or any Tranche thereof, shall be payable, (2)
registration of transfer of Securities of such series, or any Tranche
thereof, may be effected, (3) exchanges of Securities of such series,
or any Tranche thereof, may be effected and (4) notices and demands to
or upon the Company in respect of the
15
<PAGE>
Securities of such series, or any Tranche thereof, and this Indenture
may be served; the Security Registrar and any Paying Agent or Agents
for such series or Tranche; and if such is the case, that the principal
of such Securities shall be payable without presentment or surrender
thereof;
(g) the period or periods within which, or the date or dates
on which, the price or prices at which and the terms and conditions
upon which the Securities of such series, or any Tranche thereof, may
be redeemed, in whole or in part, at the option of the Company and any
restrictions on such redemptions, including but not limited to a
restriction on a partial redemption by the Company of the Securities of
any series, or any Tranche thereof, resulting in delisting of such
Securities from any national exchange;
(h) the obligation or obligations, if any, of the Company to
redeem or purchase the Securities of such series, or any Tranche
thereof, pursuant to any sinking fund or other mandatory redemption
provisions or at the option of a Holder thereof and the period or
periods within which or the date or dates on which, the price or prices
at which and the terms and conditions upon which such Securities shall
be redeemed or purchased, in whole or in part, pursuant to such
obligation, and applicable exceptions to the requirements of Section
404 in the case of mandatory redemption or redemption at the option of
the Holder;
(i) the denominations in which Securities of such series, or
any Tranche thereof, shall be issuable if other than denominations of
$1,000 and any integral multiple thereof;
(j) the currency or currencies, including composite
currencies, in which payment of the principal of and premium, if any,
and interest, if any, on the Securities of such series, or any Tranche
thereof, shall be payable (if other than in Dollars);
(k) if the principal of or premium, if any, or interest, if
any, on the Securities of such series, or any Tranche thereof, are to
be payable, at the election of the Company or a Holder thereof, in a
coin or currency other than that in which the Securities are stated to
be payable, the period or periods within which, and the terms and
conditions upon which, such election may be made;
(l) if the principal of or premium, if any, or interest, if
any, on the Securities of such series, or any Tranche thereof, are to
be payable, or are to be payable at the election of the Company or a
Holder thereof, in securities or other property, the type and amount of
such securities or other property, or the formulary or other method or
other means by which such amount shall be determined, and the period or
periods within which, and the terms and conditions upon which, any such
election may be made;
(m) if the amount payable in respect of principal of or
premium, if any, or interest, if any, on the Securities of such series,
or any Tranche thereof, may be determined with reference to an index or
other fact or event ascertainable outside of this Indenture, the manner
in which such amounts shall be determined to the extent not established
pursuant to clause (e) of this paragraph;
(n) if other than the principal amount thereof, the portion of
the principal amount of Securities of such series, or any Tranche
thereof, which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 802;
(o) any Events of Default, in addition to those specified in
Section 801, with respect to the Securities of such series, and any
covenants of the Company for the benefit of the
16
<PAGE>
Holders of the Securities of such series, or any Tranche thereof, in
addition to those set forth in Article Six;
(p) the terms, if any, pursuant to which the Securities of
such series, or any Tranche thereof, may be converted into or exchanged
for shares of capital stock or other securities of the Company or any
other Person;
(q) the obligations or instruments, if any, which shall be
considered to be Eligible Obligations in respect of the Securities of
such series, or any Tranche thereof, denominated in a currency other
than Dollars or in a composite currency, and any additional or
alternative provisions for the reinstatement of the Company's
indebtedness in respect of such Securities after the satisfaction and
discharge thereof as provided in Section 701;
(r) if the Securities of such series, or any Tranche thereof,
are to be issued in global form, (1) any limitations on the rights of
the Holder or Holders of such Securities to transfer or exchange the
same or to obtain the registration of transfer thereof, (2) any
limitations on the rights of the Holder or Holders thereof to obtain
certificates therefor in definitive form in lieu of temporary form and
(3) any and all other matters incidental to such Securities;
(s) if the Securities of such series, or any Tranche thereof,
are to be issuable as bearer securities, any and all matters incidental
thereto which are not specifically addressed in a supplemental
indenture as contemplated by clause (g) of Section 1201;
(t) to the extent not established pursuant to clause (r) of
this paragraph, any limitations on the rights of the Holders of the
Securities of such Series, or any Tranche thereof, to transfer or
exchange such Securities or to obtain the registration of transfer
thereof; and if a service charge will be made for the registration of
transfer or exchange of Securities of such series, or any Tranche
thereof, the amount or terms thereof;
(u) any exceptions to Section 113, or variation in the
definition of Business Day, with respect to the Securities of such
series, or any Tranche thereof; and
(v) any other terms of the Securities of such series, or any
Tranche thereof, not inconsistent with the provisions of this
Indenture.
With respect to Securities of a series subject to a Periodic
Offering, the indenture supplemental hereto or the Board Resolution which
establishes such series, or the Officer's Certificate pursuant to such
supplemental indenture or Board Resolution, as the case may be, may provide
general terms or parameters for Securities of such series and provide either
that the specific terms of Securities of such series, or any Tranche thereof,
shall be specified in a Company Order or that such terms shall be determined by
the Company or its agents in accordance with procedures specified in a Company
Order as contemplated by clause (b) of Section 303.
SECTION 302. DENOMINATIONS.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, the Securities of
each series shall be issuable in denominations of $1,000 and any integral
multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
17
<PAGE>
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, the Securities
shall be executed on behalf of the Company by an Authorized Officer and may have
the corporate seal of the Company affixed thereto or reproduced thereon and
attested by any other Authorized Officer. The signature of any or all of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at the time of execution Authorized 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.
The Trustee shall authenticate and deliver Securities of a
series, for original issue, at one time or from time to time in accordance with
the Company Order referred to below, upon receipt by the Trustee of:
(a) the instrument or instruments establishing the form or
forms and terms of such series, as provided in Sections 201 and 301;
(b) a Company Order requesting the authentication and delivery
of such Securities and, to the extent that the terms of such Securities
shall not have been established in an indenture supplemental hereto or
in a Board Resolution, or in an Officer's Certificate pursuant to a
supplemental indenture or Board Resolution, all as contemplated by
Sections 201 and 301, either (1) establishing such terms or (2) in the
case of Securities of a series subject to a Periodic Offering,
specifying procedures, acceptable to the Trustee, by which such terms
are to be established (which procedures may provide, to the extent
acceptable to the Trustee, for authentication and delivery pursuant to
oral or electronic instructions from the Company or any agent or agents
thereof, which oral instructions are to be promptly confirmed
electronically or in writing), in either case in accordance with the
instrument or instruments delivered pursuant to clause (a) above;
(c) the Securities of such series, executed on behalf of the
Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect that:
(1) the form or forms of such Securities have been
duly authorized by the Company and have been established in
conformity with the provisions of this Indenture;
(2) the terms of such Securities have been duly
authorized by the Company and have been established in
conformity with the provisions of this Indenture; and
(3) such Securities, when authenticated and delivered
by the Trustee and issued and delivered by the Company in the
manner and subject to any conditions specified in such Opinion
of Counsel, will have been duly issued under this Indenture
and will constitute valid and legally binding obligations of
the Company, entitled to the benefits provided by this
Indenture, and enforceable in accordance with their terms,
subject, as to enforcement, to laws relating to or affecting
generally the enforcement of creditors' rights, including,
without limitation, bankruptcy and insolvency laws and to
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law);
18
<PAGE>
provided, however, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication of such
Securities (provided that such Opinion of Counsel addresses the authentication
and delivery of all Securities of such series) and that in lieu of the opinions
described in clauses (2) and (3) above Counsel may opine that:
(x) when the terms of such Securities shall have been
established pursuant to a Company Order or Orders or pursuant to such
procedures (acceptable to the Trustee) as may be specified from time to
time by a Company Order or Orders, all as contemplated by and in
accordance with the instrument or instruments delivered pursuant to
clause (a) above, such terms will have been duly authorized by the
Company and will have been established in conformity with the
provisions of this Indenture; and
(y) such Securities, when authenticated and delivered by the
Trustee in accordance with this Indenture and the Company Order or
Orders or specified procedures referred to in paragraph (x) above and
issued and delivered by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will have been duly
issued under this Indenture and will constitute valid and legally
binding obligations of the Company, entitled to the benefits provided
by the Indenture, and enforceable in accordance with their terms,
subject, as to enforcement, to laws relating to or affecting generally
the enforcement of creditors' rights, including, without limitation,
bankruptcy and insolvency laws, and to general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
With respect to Securities of a series subject to a Periodic
Offering, the Trustee may conclusively rely, as to the authorization by the
Company of any of such Securities, the form and terms thereof and the legality,
validity, binding effect and enforceability thereof, upon the Opinion of Counsel
and other documents delivered pursuant to Sections 201 and 301 and this Section,
as applicable, at or prior to the time of the first authentication of Securities
of such series unless and until such opinion or other documents have been
superseded or revoked or expire by their terms. In connection with the
authentication and delivery of Securities of a series subject to a Periodic
Offering, the Trustee shall be entitled to assume that the Company's
instructions to authenticate and deliver such Securities do not violate any
rules, regulations or orders of any Governmental Authority having jurisdiction
over the Company.
If the form or terms of the Securities of any series have been
established by or pursuant to a Board Resolution or an Officer's Certificate as
permitted by Sections 201 or 301, the Trustee shall not be required to
authenticate such Securities if the issuance 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.
Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, each Security shall
be dated the date of its authentication.
Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, no Security shall
be entitled to any benefit under this Indenture or be valid or obligatory for
any purpose unless there appears on such Security a certificate of
authentication substantially in the form provided for herein executed by the
Trustee or its agent by manual signature, and such certificate upon any Security
shall be conclusive evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder and is entitled to the benefits of
this Indenture. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder to the Company, or any Person acting on
its behalf, but shall never have been
19
<PAGE>
issued and sold by the Company, and the Company shall deliver such Security to
the Security Registrar for cancellation as provided in Section 309 together with
a written statement (which need not comply with Section 102 and need not be
accompanied by an Officer's Certificate and an Opinion of Counsel) stating that
such Security has never been issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits hereof.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any
series, or any Tranche thereof, the Company may execute, and upon Company Order
the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued, 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; provided,
however, that temporary Securities need not recite specific redemption, sinking
fund, conversion or exchange provisions.
Unless otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, after the
preparation of definitive Securities of such series or Tranche, the temporary
Securities of such series or Tranche shall be exchangeable, without charge to
the Holder thereof, for definitive Securities of such series or Tranche upon
surrender of such temporary Securities at the office or agency of the Company
maintained pursuant to Section 602 in a Place of Payment for such Securities.
Upon such surrender of temporary Securities, the Company shall, except as
aforesaid, execute and the Trustee shall authenticate and deliver in exchange
therefor definitive Securities of the same series and Tranche, of authorized
denominations and of like tenor and aggregate principal amount.
Until exchanged in full as hereinabove provided, temporary
Securities shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and Tranche and of like
tenor authenticated and delivered hereunder.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept in each office designated
pursuant to Section 602, with respect to the Securities of each series or any
Tranche thereof, a register (all registers kept in accordance with this Section
being 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 of such series or Tranche and the registration of
transfer thereof. The Company shall designate one Person to maintain the
Security Register for the Securities of each series on a consolidated basis, and
such Person is referred to herein, with respect to such series, as the "Security
Registrar." Anything herein to the contrary notwithstanding, the Company may
designate one or more of its offices as an office in which a register with
respect to the Securities of one or more series, or any Tranche or Tranches
thereof, shall be maintained, and the Company may designate itself the Security
Registrar with respect to one or more of such series. The Security Register
shall be open for inspection by the Trustee and the Company at all reasonable
times.
Except as otherwise specified as contemplated by Section 301
with respect to the Securities of any series, or any Tranche thereof, upon
surrender for registration of transfer of any Security of such series or Tranche
at the office or agency of the Company maintained pursuant to Section 602 in a
Place of Payment for such series or Tranche, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or
20
<PAGE>
more new Securities of the same series and Tranche, of authorized denominations
and of like tenor and aggregate principal amount.
Except as otherwise specified as contemplated by Section 301
with respect to the Securities of any series, or any Tranche thereof, any
Security of such series or Tranche may be exchanged at the option of the Holder,
for one or more new Securities of the same series and Tranche, of authorized
denominations and of like tenor and aggregate principal amount, upon surrender
of the Securities to be exchanged at any such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
All Securities delivered upon any registration of transfer or
exchange of Securities shall be 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, the Trustee or
the Security Registrar) be duly endorsed or shall be accompanied by a written
instrument of transfer in form satisfactory to the Company, the Trustee or the
Security Registrar, as the case may be, duly executed by the Holder thereof or
his attorney duly authorized in writing.
Unless otherwise specified as contemplated by Section 301 with
respect to Securities of any series, or any Tranche thereof, 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, 406 or 1206 not involving any transfer.
The Company shall not be required to execute or to provide for
the registration of transfer of or the exchange of (a) Securities of any series,
or any Tranche thereof, during a period of 15 days immediately preceding the
date notice is to be given identifying the serial numbers of the Securities of
such series or Tranche called for redemption or (b) any Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and Tranche, and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a)
evidence to their satisfaction of the ownership of and the destruction, loss or
theft of any Security and (b) such security or indemnity as may be reasonably
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
is held by a Person purporting to be the owner of such Security, the Company
shall execute and the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security, a new Security of the same series and
Tranche, and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
21
<PAGE>
Notwithstanding the foregoing, 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
reasonable expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone
other than the Holder of such new Security, and any such new Security shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of such series duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, 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.
Subject to Section 312, 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 related 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 (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a date (herein called 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 promptly cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder of Securities of such series at the
address of such Holder as it appears in the Security
22
<PAGE>
Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities of
such series (or their respective Predecessor Securities) are registered
at the close of business on such Special Record Date.
(b) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and
Section 305, 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.
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
absolute owner of such Security for the purpose of receiving payment of
principal of and premium, if any, and (subject to Sections 305 and 307)
interest, if any, on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the
contrary.
SECTION 309. CANCELLATION BY SECURITY REGISTRAR.
All Securities surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to any Person other
than the Security Registrar, be delivered to the Security Registrar and, if not
theretofore canceled, shall be promptly canceled by the Security Registrar. The
Company may at any time deliver to the Security Registrar for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever or which the Company shall not have
issued and sold, and all Securities so delivered shall be promptly canceled by
the Security Registrar. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Securities held by the
Security Registrar shall be disposed of in accordance with a Company Order
delivered to the Security Registrar and the Trustee, and the Security Registrar
shall promptly deliver a certificate of disposition to the Trustee and the
Company unless, by a Company Order, similarly delivered, the Company shall
direct that canceled Securities be returned to it. The Security Registrar shall
promptly deliver evidence of any cancellation of a Security in accordance with
this Section 309 to the Trustee and the Company.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, or any Tranche thereof, interest on the Securities
of each series shall be computed on the basis of a 360-day year consisting of
twelve 30-day months and on the basis of the actual number of days elapsed
within any month in relation to the deemed 30 days of such month.
23
<PAGE>
SECTION 311. PAYMENT TO BE IN PROPER CURRENCY.
In the case of the Securities of any series, or any Tranche
thereof, denominated in any currency other than Dollars or in a composite
currency (the "Required Currency"), except as otherwise specified with respect
to such Securities as contemplated by Section 301, the obligation of the Company
to make any payment of the principal thereof, or the premium, if any, or
interest, if any, thereon, shall not be discharged or satisfied by any tender by
the Company, or recovery by the Trustee, in any currency other than the Required
Currency, except to the extent that such tender or recovery shall result in the
Trustee timely holding the full amount of the Required Currency then due and
payable. If any such tender or recovery is in a currency other than the Required
Currency, the Trustee may take such actions as it considers appropriate to
exchange such currency for the Required Currency. The costs and risks of any
such exchange, including without limitation the risks of delay and exchange rate
fluctuation, shall be borne by the Company, the Company shall remain fully
liable for any shortfall or delinquency in the full amount of Required Currency
then due and payable, and in no circumstances shall the Trustee be liable
therefor except in the case of its negligence or willful misconduct.
SECTION 312. EXTENSION OF INTEREST PAYMENT.
The Company shall have the right at any time, so long as the
Company is not in default in the payment of interest on the Securities of any
series hereunder, to extend interest payment periods on all Securities of one
or more series, or Tranches thereof, if so specified as contemplated by Section
301 with respect to such Securities and upon such terms as may be specified as
contemplated by Section 301 with respect to such Securities.
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 401. APPLICABILITY OF ARTICLE.
Securities of any series, or any Tranche thereof, which are
redeemable before their Stated Maturity shall be redeemable in accordance with
their terms and (except as otherwise specified as contemplated by Section 301
for Securities of such series or Tranche) in accordance with this Article.
SECTION 402. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution or an Officer's Certificate. The Company shall,
at least 45 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee in
writing of such Redemption Date and of the principal amount of such Securities
to be redeemed. In the case of any redemption of Securities (a) prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture or (b) pursuant to an election of the
Company which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Officer's Certificate
evidencing compliance with such restriction or condition.
SECTION 403. SELECTION OF SECURITIES TO BE REDEEMED.
24
<PAGE>
If less than all the Securities of any series, or any Tranche
thereof, are to be redeemed, the particular Securities to be redeemed shall be
selected by the Security Registrar from the Outstanding Securities of such
series or Tranche not previously called for redemption, by such method as shall
be provided for any particular series or Tranche, or, in the absence of any such
provision, by such method of random selection as the Security Registrar shall
deem fair and appropriate and which may, in any case, provide for the selection
for redemption of portions (equal to the minimum authorized denomination for
Securities of such series or Tranche or any integral multiple thereof) of the
principal amount of Securities of such series or Tranche of a denomination
larger than the minimum authorized denomination for Securities of such series or
Tranche; provided, however, that if, as indicated in an Officer's Certificate,
the Company shall have offered to purchase all or any principal amount of the
Securities then Outstanding of any series, or any Tranche thereof, and less than
all of such Securities as to which such offer was made shall have been tendered
to the Company for such purchase, the Security Registrar, if so directed by
Company Order, shall select for redemption all or any principal amount of such
Securities which have not been so tendered.
The Security Registrar shall promptly notify the Company and the
Trustee in writing of the Securities selected for redemption and, in the case of
any Securities selected to be redeemed in part, the principal amount thereof to
be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 404. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in
Section 106 to the Holders of the Securities to be redeemed not less than 30 nor
more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any series or Tranche are
to be redeemed, the identification of the particular Securities to be
redeemed and the portion of the principal amount of any Security to be
redeemed in part,
(d) that on the Redemption Date the Redemption Price, together
with accrued interest, if any, to the Redemption Date, 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,
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and accrued interest, if
any, unless it shall have been specified as contemplated by Section 301
with respect to such Securities that such surrender shall not be
required,
(f) that the redemption is for a sinking or other fund, if such
is the case, and
25
<PAGE>
(g) such other matters as the Company shall deem desirable or
appropriate.
Unless otherwise specified with respect to any Securities in
accordance with Section 301, with respect to any notice of redemption of
Securities at the election of the Company, unless, upon the giving of such
notice, such Securities shall be deemed to have been paid in accordance with
Section 701, such notice may state that such redemption shall be conditional
upon the receipt by the Paying Agent or Agents for such Securities, on or prior
to the date fixed for such redemption, of money sufficient to pay the principal
of and premium, if any, and interest, if any, on such Securities and that if
such money shall not have been so received such notice shall be of no force or
effect and the Company shall not be required to redeem such Securities. In the
event that such notice of redemption contains such a condition and such money is
not so received, the redemption shall not be made and within a reasonable time
thereafter notice shall be given, in the manner in which the notice of
redemption was given, that such money was not so received and such redemption
was not required to be made, and the Paying Agent or Agents for the Securities
otherwise to have been redeemed shall promptly return to the Holders thereof any
of such Securities which had been surrendered for payment upon such redemption.
Notice of redemption of Securities to be redeemed at the election
of the Company, and any notice of non-satisfaction of a condition for redemption
as aforesaid, shall be given by the Company or, at the Company's request, by the
Security Registrar in the name and at the expense of the Company. Notice of
mandatory redemption of Securities shall be given by the Security Registrar in
the name and at the expense of the Company.
SECTION 405. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, and the
conditions, if any, set forth in such notice having been satisfied, the
Securities or portions thereof 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, in the case of an unconditional notice of redemption,
the Company shall default in the payment of the Redemption Price and accrued
interest, if any) such Securities or portions thereof, if interest-bearing,
shall cease to bear interest. Upon surrender of any such Security for redemption
in accordance with such notice, such Security or portion thereof shall be paid
by the Company at the Redemption Price, together with accrued interest, if any,
to the Redemption Date; provided, however, that no such surrender shall be a
condition to such payment if so specified as contemplated by Section 301 with
respect to such Security; and provided, further, that except as otherwise
specified as contemplated by Section 301 with respect to such Security, any
installment of interest on any Security the Stated Maturity of which installment
is on or prior to the Redemption Date shall be payable to the Holder of such
Security, or one or more Predecessor Securities, registered as such at the close
of business on the related Regular Record Date according to the terms of such
Security and subject to the provisions of Section 307.
SECTION 406. SECURITIES REDEEMED IN PART.
Upon the surrender of any Security which is to be redeemed only in
part 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), the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security, without
service charge, a new Security or Securities of the same series and Tranche, of
any authorized denomination requested by such Holder and of like tenor and in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
26
<PAGE>
ARTICLE FIVE
SINKING FUNDS
SECTION 501. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of the Securities of any series, or any Tranche thereof,
except as otherwise specified as contemplated by Section 301 for Securities of
such series or Tranche.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series, or any Tranche thereof, is herein referred to
as a "mandatory sinking fund payment", and any payment in excess of such minimum
amount provided for by the terms of Securities of any series, or any Tranche
thereof, is herein referred to as an "optional sinking fund payment". If
provided for by the terms of Securities of any series, or any Tranche thereof,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 502. Each sinking fund payment shall be applied to the
redemption of Securities of the series or Tranche in respect of which it was
made as provided for by the terms of such Securities.
SECTION 502. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (a) may deliver to the Trustee Outstanding Securities
(other than any previously called for redemption) of a series or Tranche in
respect of which a mandatory sinking fund payment is to be made and (b) may
apply as a credit Securities of such series or Tranche which have been (1)
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 or (2) repurchased by the
Company in the open market, by tender offer or otherwise, in each case in
satisfaction of all or any part of such mandatory sinking fund payment;
provided, however, that no Securities shall be applied in satisfaction of a
mandatory sinking fund payment if such Securities shall have been previously so
applied. Securities so applied shall be received and credited for such purpose
by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced accordingly.
SECTION 503. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days prior to each sinking fund payment date for
the Securities of any series, or any Tranche thereof, the Company shall deliver
to the Trustee an Officer's Certificate specifying:
(a) the amount of the next succeeding mandatory sinking fund
payment for such series or Tranche;
(b) the amount, if any, of the optional sinking fund payment to
be made together with such mandatory sinking fund payment;
(c) the aggregate sinking fund payment;
27
<PAGE>
(d) the portion, if any, of such aggregate sinking fund payment
which is to be satisfied by the payment of cash;
(e) the portion, if any, of such aggregate sinking fund payment
which is to be satisfied by delivering and crediting Securities of such
series or Tranche pursuant to Section 502 and stating the basis for such
credit and that such Securities have not previously been so credited,
and the Company shall also deliver to the Trustee any Securities to be
so delivered. If the Company shall not deliver such Officer's
Certificate, the next succeeding sinking fund payment for such series or
Tranche shall be made entirely in cash in the amount of the mandatory
sinking fund payment. Not less than 40 days before each such sinking
fund payment date the Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section
403 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
404. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in
Sections 405 and 406.
ARTICLE SIX
COVENANTS
SECTION 601. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company shall pay the principal of and premium, if any, and
interest, if any, on the Securities of each series in accordance with the terms
of such Securities and this Indenture.
SECTION 602. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of Payment for the
Securities of each series, or any Tranche thereof, an office or agency where
payment of such Securities shall be made, where the registration of transfer or
exchange of such Securities may be effected and where notices and demands to or
upon the Company in respect of such Securities and this Indenture may be served.
The Company shall give prompt written notice to the Trustee of the location, and
any change in the location, of each such office or agency and prompt notice to
the Holders of any such change in the manner specified in Section 106. If at any
time the Company shall fail to maintain any such required office or agency in
respect of Securities of any series, or any Tranche thereof, or shall fail to
furnish the Trustee with the address thereof, payment of such Securities shall
be made, registration of transfer or exchange thereof may be effected and
notices and demands in respect thereof may be served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
for all such purposes in any such event.
The Company may also from time to time designate one or more other
offices or agencies with respect to the Securities of one or more series, or any
Tranche thereof, for any or all of the foregoing purposes and may from time to
time rescind such designations; provided, however, that, unless otherwise
specified as contemplated by Section 301 with respect to the Securities of such
series or Tranche, no such designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or agency for such purposes
in each Place of Payment for such Securities in accordance with the requirements
set forth above. The Company shall give prompt written notice to the Trustee,
and prompt notice to the Holders in the manner specified in Section 106, of any
such designation or rescission and of any change in the location of any such
other office or agency.
28
<PAGE>
Anything herein to the contrary notwithstanding, any office or
agency required by this Section may be maintained at an office of the Company,
in which event the Company shall perform all functions to be performed at such
office or agency.
SECTION 603. 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 the Securities of any series, or any Tranche thereof, it shall, on or
before each due date of the principal of and premium, if any, and interest, if
any, on any of such Securities, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the principal and premium
or interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided. The Company shall promptly notify the
Trustee of any failure by the Company (or any other obligor on such Securities)
to make any payment of principal of or premium, if any, or interest, if any, on
such Securities.
Whenever the Company shall have one or more Paying Agents for the
Securities of any series, or any Tranche thereof, it shall, on or before each
due date of the principal of and premium, if any, and interest, if any, on such
Securities, deposit with such Paying Agents sums sufficient (without
duplication) to pay the principal and premium or interest so becoming due, such
sums to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying Agent is the Trustee)
the Company shall promptly notify the Trustee of any failure by it so to act.
The Company shall cause each Paying Agent for the Securities of
any series, or any Tranche thereof, other than the Company or 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 shall:
(a) hold all sums held by it for the payment of the principal of
and premium, if any, or interest, if any, on such Securities in trust
for the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any failure by the Company (or any
other obligor upon such Securities) to make any payment of principal of
or premium, if any, or interest, if any, on such Securities; and
(c) at any time during the continuance of any such failure, upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent and furnish to the Trustee
such information as it possesses regarding the names and addresses of
the Persons entitled to such sums.
The Company may at any time 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, if
so stated in a Company Order delivered to the Trustee, in accordance with the
provisions of Article Seven; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of and premium,
if any, or interest, if any, on any Security and remaining unclaimed for two
years after such principal and premium, if any, or interest,
29
<PAGE>
if any, 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, upon such payment or discharge, the Holder of such Security shall, as an
unsecured general creditor and not as a Holder of an Outstanding Security, look
only to the Company for payment of the amount so due and payable and remaining
unpaid, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such payment to the Company, may at the
expense of the Company cause to be mailed, on one occasion only, notice to such
Holder that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such mailing, any
unclaimed balance of such money then remaining will be paid to the Company.
SECTION 604. CORPORATE EXISTENCE.
Subject to the rights of the Company under Article Eleven, the
Company shall do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence.
SECTION 605. MAINTENANCE OF PROPERTIES.
The Company shall cause (or, with respect to property owned in
common with others, make reasonable effort to cause) all its properties used or
useful in the conduct of its business to be maintained and kept in good
condition, repair and working order and shall cause (or, with respect to
property owned in common with others, make reasonable effort to cause) to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as, in the judgment of the Company, may be necessary so that the
business carried on in connection therewith may be properly conducted; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing, or causing the discontinuance of, the operation and maintenance
of any of its properties if such discontinuance is, in the judgment of the
Company, desirable in the conduct of its business.
SECTION 606. ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
Not later than October 1 in each year, commencing October 1, 1997,
the Company shall deliver to the Trustee an Officer's Certificate which need not
comply with Section 102, executed by the principal executive officer, the
principal financial officer or the principal accounting officer of the Company,
as to such officer's knowledge of the Company's compliance with all conditions
and covenants under this Indenture, such compliance to be determined without
regard to any period of grace or requirement of notice under this Indenture.
SECTION 607. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in (a) Section 602 or any additional
covenant or restriction specified with respect to the Securities of any series,
or any Tranche thereof, as contemplated by Section 301 if before the time for
such compliance the Holders of at least a majority in aggregate principal amount
of the Outstanding Securities of all series and Tranches with respect to which
compliance with Section 602 or such additional covenant or restriction is to be
omitted, considered as one class, shall, by Act of such Holders, either waive
such compliance in such instance or generally waive compliance with such term,
provision or condition and (b) Section 604, 605 or Article Eleven if before the
time for such compliance the Holders of at least a majority in principal amount
of Securities Outstanding under this Indenture shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such term, provision or condition; but, in the case of (a) or (b), no such
waiver
30
<PAGE>
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 608. LIMITATIONS ON LIENS.
So long as there remain outstanding any Securities of any series
to which this Section 608 applies under the terms of the series, the Company
shall not, and will not permit any subsidiary to, create or suffer to be created
or to exist any Lien on any of its properties or assets now owned or hereinafter
acquired to secure any indebtedness, without making effective provision whereby
the Securities (together with, if the Company shall so determine, any other debt
of the Company or any subsidiary then existing or thereafter created that is not
subordinate to such Securities) of such series shall be equally and ratably
secured with (or prior to) any and all such indebtedness and with any other
indebtedness similarly entitled to be equally and ratably secured. However, this
restriction shall not apply to or prevent the creation or existence of:
(a) the Liens of the Mortgage or any indenture supplemental to
any thereof subjecting any property to the Lien thereof or confirming
the Lien thereof upon any property, whether now owned or hereafter
acquired;
(b) Liens on property existing at the time of acquisition or
construction of such property (or created within one year after
completion of such acquisition or construction), whether by purchase,
merger,construction or otherwise (or on the property of a subsidiary at
the date it became a subsidiary), or to secure the payment of all or any
part of the purchase price or construction cost thereof, including the
extension of any such Liens to repairs, renewals, replacements,
substitutions, betterments, additions, extensions and improvements then
or thereafter made on the property subject thereto;
(c) any extensions, renewals or replacements (or successive
extensions, renewals or replacements), in whole or in part of Liens
permitted by the foregoing clauses (a) and (b);
(d) the pledge of any bonds or other securities at any time issued
under any of the Liens permitted by clauses (a), (b), or (c); or
(e) Permitted Liens.
Further, this restriction shall not apply to or prevent the creation or
existence of leases made, or existing on property acquired, in the ordinary
course of business.
ARTICLE SEVEN
SATISFACTION AND DISCHARGE
SECTION 701. SATISFACTION AND DISCHARGE OF SECURITIES.
Any Security or Securities, or any portion of the principal amount
thereof, shall be deemed to have been paid for all purposes of this Indenture,
and the entire indebtedness of the Company in respect thereof shall be deemed to
have been satisfied and discharged, if there shall have been irrevocably
deposited with the Trustee or any Paying Agent (other than the Company), in
trust:
31
<PAGE>
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the Maturity of such
Securities or portions thereof, Eligible Obligations, which shall not
contain provisions permitting the redemption or other prepayment thereof
at the option of the issuer thereof, the principal of and the interest
on which when due, without any regard to reinvestment thereof, will
provide moneys which, together with the money, if any, deposited with or
held by the Trustee or such Paying Agent, shall be sufficient, or
(c) a combination of (a) or (b) which shall be sufficient,
to pay when due the principal of and premium, if any, and interest, if any, due
and to become due on such Securities or portions thereof on or prior to
Maturity; provided, however, that in the case of the provision for payment or
redemption of less than all the Securities of any series or Tranche, such
Securities or portions thereof shall have been selected by the Security
Registrar as provided herein and, in the case of a redemption, the notice
requisite to the validity of such redemption shall have been given or
irrevocable authority shall have been given by the Company to the Trustee to
give such notice, under arrangements satisfactory to the Trustee; and provided,
further, that the Company shall have delivered to the Trustee and such Paying
Agent:
(x) if such deposit shall have been made prior to the Maturity of
such Securities, a Company Order stating that the money and Eligible
Obligations deposited in accordance with this Section shall be held in
trust, as provided in Section 703;
(y) if Eligible Obligations shall have been deposited, an Opinion
of Counsel that the obligations so deposited constitute Eligible
Obligations and do not contain provisions permitting the redemption or
other prepayment at the option of the issuer thereof, and an opinion of
an independent public accountant of nationally recognized standing,
selected by the Company, to the effect that the requirements set forth
in clause (b) above have been satisfied; and
(z) if such deposit shall have been made prior to the Maturity of
such Securities, an Officer's Certificate stating the Company's
intention that, upon delivery of such Officer's Certificate, its
indebtedness in respect of such Securities or portions thereof will have
been satisfied and discharged as contemplated in this Section.
Upon the deposit of money or Eligible Obligations, or both, in
accordance with this Section, together with the documents required by clauses
(x), (y) and (z) above, the Trustee shall, upon receipt of a Company Request,
acknowledge in writing that the Security or Securities or portions thereof with
respect to which such deposit was made are deemed to have been paid for all
purposes of this Indenture and that the entire indebtedness of the Company in
respect thereof has been satisfied and discharged as contemplated in this
Section. In the event that all of the conditions set forth in the preceding
paragraph shall have been satisfied in respect of any Securities or portions
thereof except that, for any reason, the Officer's Certificate specified in
clause (z) shall not have been delivered, such Securities or portions thereof
shall nevertheless be deemed to have been paid for all purposes of this
Indenture, and the Holders of such Securities or portions thereof shall
nevertheless be no longer entitled to the benefits of this Indenture or of any
of the covenants of the Company under Article Six (except the covenants
contained in Sections 602, 603 and 604) or any other covenants made in respect
of such Securities or portions thereof as contemplated by Section 301, but the
indebtedness of the Company in respect of such Securities or portions thereof
shall not be deemed to have been satisfied and discharged prior to Maturity for
any other purpose, and the Holders of such Securities or portions thereof shall
continue to be entitled to look to the Company for payment of the indebtedness
represented
32
<PAGE>
thereby; and, upon Company Request, the Trustee shall acknowledge in writing
that such Securities or portions thereof are deemed to have been paid for all
purposes of this Indenture.
If payment at Stated Maturity of less than all of the Securities
of any series, or any Tranche thereof, is to be provided for in the manner and
with the effect provided in this Section, the Security Registrar shall select
such Securities, or portions of principal amount thereof, in the manner
specified by Section 403 for selection for redemption of less than all the
Securities of a series or Tranche.
In the event that Securities which shall be deemed to have been
paid for purposes of this Indenture, and, if such is the case, in respect of
which the Company's indebtedness shall have been satisfied and discharged, all
as provided in this Section do not mature and are not to be redeemed within the
sixty (60) day period commencing with the date of the deposit of moneys or
Eligible Obligations, as aforesaid, the Company shall, as promptly as
practicable, give a notice, in the same manner as a notice of redemption with
respect to such Securities, to the Holders of such Securities to the effect that
such deposit has been made and the effect thereof.
Notwithstanding that any Securities shall be deemed to have been
paid for purposes of this Indenture, as aforesaid, the obligations of the
Company and the Trustee in respect of such Securities under Sections 304, 305,
306, 403, 404, 406, 503 (as to notice of redemption), 602, 603, 907, 909, 910
and 915 and this Article Seven shall survive.
The Company shall pay, and shall indemnify the Trustee or any
Paying Agent with which Eligible Obligations shall have been deposited as
provided in this Section against, any tax, fee or other charge imposed on or
assessed against such Eligible Obligations or the principal or interest received
in respect of such Eligible Obligations, including, but not limited to, any such
tax payable by any entity deemed, for tax purposes, to have been created as a
result of such deposit.
Anything herein to the contrary notwithstanding, (a) if, at any
time after a Security would be deemed to have been paid for purposes of this
Indenture, and, if such is the case, the Company's indebtedness in respect
thereof would be deemed to have been satisfied or discharged, pursuant to this
Section (without regard to the provisions of this paragraph), the Trustee or any
Paying Agent, as the case may be, shall be required to return the money or
Eligible Obligations, or combination thereof, deposited with it as aforesaid to
the Company or its representative under any applicable Federal or State
bankruptcy, insolvency or other similar law, such Security shall thereupon be
deemed retroactively not to have been paid and any satisfaction and discharge of
the Company's indebtedness in respect thereof shall retroactively be deemed not
to have been effected, and such Security shall be deemed to remain Outstanding
and (b) any satisfaction and discharge of the Company's indebtedness in respect
of any Security shall be subject to the provisions of the last paragraph of
Section 603.
SECTION 702. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further
effect (except as hereinafter expressly provided), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) no Securities remain Outstanding hereunder; and
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company;
33
<PAGE>
provided, however, that if, in accordance with the last paragraph of Section
701, any Security, previously deemed to have been paid for purposes of this
Indenture, shall be deemed retroactively not to have been so paid, this
Indenture shall thereupon be deemed retroactively not to have been satisfied and
discharged, as aforesaid, and to remain in full force and effect, and the
Company shall execute and deliver such instruments as the Trustee shall
reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge of this Indenture
as aforesaid, the obligations of the Company and the Trustee under Sections 304,
305, 306, 403, 404, 406, 503 (as to notice of redemption), 602, 603, 907, 909,
910 and 915 and this Article Seven shall survive.
Upon satisfaction and discharge of this Indenture as provided in
this Section, the Trustee shall assign, transfer and turn over to the Company,
subject to the lien provided by Section 907, any and all money, securities and
other property then held by the Trustee for the benefit of the Holders of the
Securities other than money and Eligible Obligations held by the Trustee
pursuant to Section 703.
SECTION 703. APPLICATION OF TRUST MONEY.
Neither the Eligible Obligations nor the money deposited pursuant
to Section 701, nor the principal or interest payments on any such Eligible
Obligations, shall be withdrawn or used for any purpose other than, and such
Eligible Obligations and money deposited and the principal and interest payments
on any such Eligible Obligations shall be held in trust for, the payment of the
principal of and premium, if any, and interest, if any, on the Securities or
portions of principal amount thereof in respect of which such deposit was made,
all subject, however, to the provisions of Section 603; provided, however, that,
so long as there shall not have occurred and be continuing an Event of Default,
any cash received from such principal or interest payments on such Eligible
Obligations, if not then needed for such purpose, shall, to the extent
practicable, be invested in Eligible Obligations of the type described in clause
(b) in the first paragraph of Section 701 maturing at such times and in such
amounts as shall be sufficient, together with any other moneys and the principal
of and interest on any other Eligible Obligations then held by the Trustee, to
pay when due the principal of and premium, if any, and interest, if any, due and
to become due on such Securities or portions thereof on and prior to the
Maturity thereof, and interest earned from such reinvestment shall be paid over
to the Company as received, free and clear of any trust, lien or pledge under
this Indenture except the lien provided by Section 907; and provided, further,
that, so long as there shall not have occurred and be continuing an Event of
Default, any moneys held in accordance with this Section on the Maturity of all
such Securities in excess of the amount required to pay the principal of and
premium, if any, and interest, if any, then due on such Securities shall be paid
over to the Company free and clear of any trust, lien or pledge under this
Indenture except the lien provided by Section 907; and provided, further, that
if an Event of Default shall have occurred and be continuing, moneys to be paid
over to the Company pursuant to this Section shall be held until such Event of
Default shall have been waived or cured.
34
<PAGE>
35
<PAGE>
ARTICLE EIGHT
EVENTS OF DEFAULT; REMEDIES
SECTION 801. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events:
(a) failure to pay interest, if any, on any Security of such
series within sixty (60) days after the same becomes due and payable;
provided, however, that a valid extension of the interest payment period
by the Company as contemplated in Section 312 of this Indenture shall
not constitute a failure to pay interest for this purpose; or
(b) failure to pay the principal of or premium, if any, on any
Security of such series within ten (10) days after its Maturity; or
(c) failure to perform, or breach of, any covenant or warranty of
the Company in this Indenture (other than a covenant or warranty a
default in the performance of which or breach of which is elsewhere in
this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of one or more series
of Securities other than such series) 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 33% in principal amount of the Outstanding Securities of such
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, unless the Trustee, or the Trustee and the Holders of a
principal amount of Securities of such series not less than the
principal amount of Securities the Holders of which gave such notice, as
the case may be, shall agree in writing to an extension of such period
prior to its expiration; provided, however, that the Trustee, or the
Trustee and the Holders of such principal amount of Securities of such
series, as the case may be, shall be deemed to have agreed to an
extension of such period if corrective action is initiated by the
Company within such period and is being diligently pursued; or
(d) the entry by a court having jurisdiction in the premises of
(1) 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 (2) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition by one or more Persons other than
the Company seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any applicable Federal
or State law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official for the Company or for
any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and any such decree or order for relief or
any such other decree or order shall have remained unstayed and in
effect for a period of 90 consecutive days; or
(e) 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 a
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement
of any bankruptcy or insolvency case or proceeding
36
<PAGE>
against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or State
law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official 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 authorization of such action by the Board of Directors; or
(f) any other Event of Default specified with respect to
Securities of such series.
SECTION 802. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default shall have occurred and be continuing with
respect to Securities of any series at the time Outstanding, then in every such
case the Trustee or the Holders of not less than 33% in principal amount of the
Outstanding Securities of such series may declare the principal amount (or, if
any of the Securities of such series are Discount Securities, such portion of
the principal amount of such Securities as may be specified in the terms thereof
as contemplated by Section 301) of all of the Securities of such series to be
due and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon receipt by the Company of notice of such
declaration such principal amount (or specified amount) shall become immediately
due and payable; provided, however, that if an Event of Default shall have
occurred and be continuing with respect to more than one series of Securities,
the Trustee or the Holders of not less than 33% in aggregate principal amount of
the Outstanding Securities of all such series, considered as one class (and not
the Holders of the Securities of any one of such series), may make such
declaration of acceleration.
At any time after such a declaration of acceleration with respect
to Securities of any series shall have been made and before a judgment or decree
for payment of the money due shall have been obtained by the Trustee as
hereinafter in this Article provided, the Event or Events of Default giving rise
to such declaration of acceleration shall, without further act, be deemed to
have been waived, and such declaration and its consequences shall, without
further act, be deemed to have been rescinded and annulled, if
(a) the Company shall have paid or deposited with the Trustee a
sum sufficient to pay
(1) all overdue interest on all Securities of such series;
(2) the principal of and premium, if any, on any Securities
of such series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or
rates prescribed therefor in such Securities;
(3) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities;
(4) all amounts due to the Trustee under Section 907;
and
(b) any other Event or Events of Default with respect to
Securities of such series, other than the non-payment of the principal
of Securities of such series which shall have become due solely by such
declaration of acceleration, shall have been cured or waived as provided
in Section 813.
37
<PAGE>
No such rescission shall affect any subsequent Event of Default or impair any
right consequent thereon.
SECTION 803. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
If an Event of Default described in clause (a) or (b) of Section
801 shall have occurred and be continuing, the Company shall, upon demand of the
Trustee, pay to it, for the benefit of the Holders of the Securities of the
series with respect to which such Event of Default shall have occurred, the
whole amount then due and payable on such Securities for principal and premium,
if any, and interest, if any, and, to the extent permitted by law, interest on
premium, if any, and on any overdue principal and interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover any amounts due to the Trustee under
Section 907.
If the Company shall fail to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to Securities of any series
shall have occurred and be 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 804. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal,
premium, if any, and interest, if any, owing and unpaid in respect of
the Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for amounts due to the Trustee under Section 907)
and of the Holders allowed in such judicial proceeding, and
(b) 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 amounts due it under Section 907.
38
<PAGE>
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 805. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders in respect of which such judgment has been
recovered.
SECTION 806. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal or
premium, if any, or interest, if any, upon presentation of the Securities in
respect of which or for the benefit of which such money shall have been
collected and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
907;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities for principal of and premium, if any, and interest, if any,
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, premium, if any, and interest, if any, respectively; and
THIRD: To the Company.
SECTION 807. LIMITATION ON SUITS.
No Holder 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:
(a) such Holder shall have previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of such series;
(b) the Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of all series in respect of which
an Event of Default shall have occurred and be continuing, considered as
one class, shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(c) such Holder or Holders shall have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
39
<PAGE>
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity shall have failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request shall have
been given to the Trustee during such 60-day period by the Holders of a
majority in aggregate principal amount of the Outstanding Securities of
all series in respect of which an Event of Default shall have occurred
and be continuing, considered as one class;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 808. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST.
Notwithstanding any other provision in this Indenture, the Holder
of any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and premium, if any, and (subject to Section
307 and 312) interest, if any, on such Security on the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
SECTION 809. 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 shall have
been discontinued or abandoned for any reason, or shall have 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, and Trustee and such
Holder shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and such Holder
shall continue as though no such proceeding had been instituted.
SECTION 810. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided 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 811. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to exercise
any right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 812. CONTROL BY HOLDERS OF SECURITIES.
40
<PAGE>
If an Event of Default shall have occurred and be continuing in
respect of a series of Securities, the Holders of a majority in principal amount
of the Outstanding Securities of such series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series; provided, however, that if an Event of
Default shall have occurred and be continuing with respect to more than one
series of Securities, the Holders of a majority in aggregate principal amount of
the Outstanding Securities of all such series, considered as one class, shall
have the right to make such direction, and not the Holders of the Securities of
any one of such series; and provided, further, that
(a) such direction shall not be in conflict with any rule of law
or with this Indenture, and could not involve the Trustee in personal
liability in circumstances where indemnity would not, in the Trustee's
sole discretion, be adequate, and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 813. 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
(a) in the payment of the principal of or premium, if any, or
interest, if any, on any Security of such series, or
(b) in respect of a covenant or provision hereof which under
Section 1202 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
and all Events 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 814. UNDERTAKING FOR COSTS.
The Company and the Trustee agree, and each Holder by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in aggregate
principal amount of the Outstanding Securities of all series in respect of which
such suit may be brought, considered as one class, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of or premium, if
any, or interest, if any, on any Security on or after the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date).
SECTION 815. WAIVER OF STAY OR EXTENSION LAWS.
41
<PAGE>
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE NINE
THE TRUSTEE
SECTION 901. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default with
respect to Securities of any series,
(1) the Trustee undertakes to perform, with respect to
Securities of such series, such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may, with respect to Securities of such series, conclusively rely,
as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty
to examine the same to determine whether or not they conform to
the requirements of this Indenture.
(b) In case an Event of Default with respect to Securities of
any series shall have occurred and be continuing, the Trustee shall
exercise, with respect to Securities of such series, such of the rights
and powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own wilful misconduct, except that
(1) this clause (c) shall not be construed to limit the
effect of clause (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Trustee was negligent in ascertaining the
pertinent facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a
42
<PAGE>
majority in principal amount of the Outstanding Securities of any
one or more series, as provided herein, relating to the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect to
the Securities of such series; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to
the provisions of this Section.
SECTION 902. NOTICE OF DEFAULTS.
The Trustee shall give notice of any default hereunder with
respect to the Securities of any series to the Holders of Securities of such
series in the manner and to the extent required to do so by the Trust Indenture
Act, unless such default shall have been cured or waived; provided, however,
that in the case of any default of the character specified in clause (c) of
Section 801, no such notice to Holders shall be given until at least 75 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.
SECTION 903. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 901 and to the applicable
provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order,
or as otherwise expressly provided herein, and any resolution of the
Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel 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;
43
<PAGE>
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any Holder pursuant to this Indenture, unless such Holder
shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall (subject to applicable legal requirements) be
entitled to examine, during normal business hours, the books, records
and premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due
care by it hereunder; and
(h) except as otherwise provided in Section 801, the Trustee shall
not be charged with knowledge of any Event of Default with respect to
the Securities of any series for which it is acting as Trustee unless
either (1) a Responsible Officer of the Trustee shall have actual
knowledge of the Event of Default or (2) written notice of such Event of
Default shall have been given to the Trustee by the Company, any other
obligor on such Securities or by any Holder of such Securities.
SECTION 904. 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
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 905. MAY HOLD SECURITIES.
Each of the Trustee, any Authenticating Agent, any Paying Agent,
any Security Registrar or any other agent of the Company or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
and, subject to Sections 908 and 913, may otherwise deal with the Company with
the same rights it would have if it were not the Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
SECTION 906. 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 or investment of any money received
by it hereunder except as expressly provided herein or otherwise agreed with,
and for the sole benefit of, the Company.
SECTION 907. COMPENSATION AND REIMBURSEMENT.
44
<PAGE>
The Company shall
(a) pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances reasonably 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 to
the extent that any such expense, disbursement or advance may be
attributable to its negligence, wilful misconduct or bad faith; and
(c) indemnify the Trustee and hold it harmless from and against,
any loss, liability or expense reasonably incurred by it arising out of
or in connection with the acceptance or administration of the trust or
trusts hereunder or the performance of its duties 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, except to the extent any such loss,
liability or expense may be attributable to its negligence, wilful
misconduct or bad faith.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee as such other than
property and funds held in trust under Section 703 (except as otherwise provided
in Section 703). "Trustee" for purposes of this Section shall include any
predecessor Trustee; provided, however, that the negligence, wilful misconduct
or bad faith of any Trustee hereunder shall not affect the rights of any other
Trustee hereunder.
SECTION 908. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee shall have or acquire any conflicting interest
within the meaning of the Trust Indenture Act, it shall either eliminate such
conflicting interest or resign to the extent, in the manner and with the effect,
and subject to the conditions, provided in the Trust Indenture Act and this
Indenture. For purposes of Section 310(b)(1) of the Trust Indenture Act and to
the extent permitted thereby, the Trustee, in its capacity as trustee in respect
of the Securities of any series, shall not be deemed to have a conflicting
interest arising from its capacity as trustee in respect of the Securities of
any other series.
SECTION 909. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be
(a) a corporation organized and doing business under the laws of
the United States, any State or Territory thereof or the District of
Columbia, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by Federal or State authority, or
(b) if and to the extent permitted by the Commission by rule,
regulation or order upon application, a corporation or other Person
organized and doing business under the laws of a foreign government,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000 or the Dollar
equivalent of the applicable foreign currency and subject to supervision
or examination by authority of such
45
<PAGE>
foreign government or a political subdivision thereof substantially
equivalent to supervision or examination applicable to United States
institutional trustees,
and, in either case, qualified and eligible under this Article and the Trust
Indenture Act. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of such supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 910. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 911.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required
by Section 911 shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of
such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered
to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 908 after
written request therefor by the Company or by any Holder who has
been a bona fide Holder for at least six months, or
(2) the Trustee shall cease to be eligible under Section
909 and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (A) the Company by a Board Resolution may remove
the Trustee with respect to all Securities or (B) subject to Section
814, any Holder who has been a bona fide Holder for at least six months
may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any
cause (other than as contemplated in clause (B) in clause (d) of this
Section), 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
46
<PAGE>
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 911. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act
of the Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable
requirements of Section 911, become the successor Trustee with respect
to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have been so appointed by
the Company or the Holders and accepted appointment in the manner
required by Section 911, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of itself
and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to
the Securities of such series.
(f) So long as no event which is, or after notice or lapse of
time, or both, would become, an Event of Default shall have occurred and
be continuing, and except with respect to a Trustee appointed by Act of
the Holders of a majority in principal amount of the Outstanding
Securities pursuant to subsection (e) of this Section, if the Company
shall have delivered to the Trustee (1) a Board Resolution appointing a
successor Trustee, effective as of a date specified therein, and (2) an
instrument of acceptance of such appointment, effective as of such date,
by such successor Trustee in accordance with Section 911, the Trustee
shall be deemed to have resigned as contemplated in subsection (b) of
this Section, the successor Trustee shall be deemed to have been
appointed by the Company pursuant to subsection (e) of this Section and
such appointment shall be deemed to have been accepted as contemplated
in Section 911, all as of such date, and all other provisions of this
Section and Section 911 shall be applicable to such resignation,
appointment and acceptance except to the extent inconsistent with this
clause (f).
(g) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities
of any series by mailing written notice of such event by first-class
mail, postage prepaid, to all Holders of Securities of such series as
their names and addresses appear in the Security Register. Each notice
shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its corporate trust office.
SECTION 911. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of all series, 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, 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 all
sums owed to it, 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.
47
<PAGE>
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to
the Securities of such series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested
in the retiring Trustee and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust
and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and
delivery of such supplemental indenture the resignation or removal of
the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, 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,
upon payment of all sums owed to it, shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any instruments which fully vest in and confirm to such
successor Trustee all such rights, powers and trusts referred to in
clause (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified
and eligible under this Article.
SECTION 912. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 913. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If the Trustee shall be or become a creditor of the Company or any
other obligor upon the Securities (other than by reason of a relationship
described in Section 311(b) of the Trust Indenture Act), the Trustee shall be
subject to any and all applicable provisions of the Trust Indenture Act
48
<PAGE>
regarding the collection of claims against the Company or such other obligor.
For purposes of Section 311(b) of the Trust Indenture Act:
(a) the term "cash transaction" means any transaction in which
full payment for goods or securities sold is made within seven days
after delivery of the goods or securities in currency or in checks or
other orders drawn upon banks or bankers and payable upon demand;
(b) the term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company or such obligor for the purpose of financing the
purchase, processing, manufacturing, shipment, storage or sale of goods,
wares or merchandise and which is secured by documents evidencing title
to, possession of, or a lien upon, the goods, wares or merchandise or
the receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security
is received by the Trustee simultaneously with the creation of the
creditor relationship with the Company or such obligor arising from the
making, drawing, negotiating or incurring of the draft, bill of
exchange, acceptance or obligation.
SECTION 914. CO-TRUSTEES AND SEPARATE TRUSTEES.
At any time or times, for the purpose of meeting the legal
requirements of any applicable jurisdiction, the Company and the Trustee shall
have power to appoint, and, upon the written request of the Trustee or of the
Holders of at least thirty-three per centum (33%) in principal amount of the
Securities then Outstanding, the Company shall for such purpose join with the
Trustee in the execution and delivery of all instruments and agreements
necessary or proper to appoint, one or more Persons approved by the Trustee
either to act as co-trustee, jointly with the Trustee, or to act as separate
trustee, in either case with such powers as may be provided in the instrument of
appointment, and to vest in such Person or Persons, in the capacity aforesaid,
any property, title, right or power deemed necessary or desirable, subject to
the other provisions of this Section. If the Company does not join in such
appointment within 15 days after the receipt by it of a request so to do, or if
an Event of Default shall have occurred and be continuing, the Trustee alone
shall have power to make such appointment.
Should any written instrument or instruments from the Company be
required by any co-trustee or separate trustee so appointed to more fully
confirm to such co-trustee or separate trustee such property, title, right or
power, any and all such instruments shall, on request, be executed, acknowledged
and delivered by the Company.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the following
conditions:
(a) the Securities shall be authenticated and delivered, and all
rights, powers, duties and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, the Trustee hereunder, shall
be exercised solely, by the Trustee;
(b) the rights, powers, duties and obligations hereby conferred or
imposed upon the Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or
performed either by the Trustee or by the Trustee and such co-trustee or
separate trustee jointly, as shall be provided in the instrument
appointing such co-trustee or separate trustee, except to the extent
that under any law of any jurisdiction in which any particular act is to
be performed, the Trustee shall be incompetent or unqualified to perform
49
<PAGE>
such act, in which event such rights, powers, duties and obligations
shall be exercised and performed by such co-trustee or separate
trustee;
(c) the Trustee at any time, by an instrument in writing executed
by it, with the concurrence of the Company, may accept the resignation
of or remove any co-trustee or separate trustee appointed under this
Section, and, if an Event of Default shall have occurred and be
continuing, the Trustee shall have power to accept the resignation of,
or remove, any such co-trustee or separate trustee without the
concurrence of the Company. Upon the written request of the Trustee, the
Company shall join with the Trustee in the execution and delivery of all
instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate
trustee so resigned or removed may be appointed in the manner provided
in this Section;
(d) no co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Trustee, or
any other such trustee hereunder; and
(e) any Act of Holders delivered to the Trustee shall be deemed to
have been delivered to each such co-trustee and separate trustee.
SECTION 915. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents with
respect to the Securities of one or more series, or any Tranche thereof, which
shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series or Tranche issued upon original issuance, exchange, registration
of transfer or partial redemption thereof or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States, any State or Territory thereof or the
District of Columbia or the Commonwealth of Puerto Rico, authorized under such
laws to act as Authenticating Agent, having a combined capital and surplus of
not less than $50,000,000 and subject to supervision or examination by Federal
or State authority. If such Authenticating Agent publishes reports of condition
at least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
50
<PAGE>
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, in accordance
with, and subject to the provisions of Section 907.
The provisions of Sections 308, 904 and 905 shall be applicable to
each Authenticating Agent.
If an appointment with respect to the Securities of one or more
series, or any Tranche thereof, shall be made pursuant to this Section, the
Securities of such series or Tranche may have endorsed thereon, in addition to
the Trustee's certificate of authentication, an alternate certificate of
authentication substantially in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated: _________________________________,
As Trustee
By:_________________________________
As Authenticating Agent
By:_________________________________
Authorized Signatory
If all of the Securities of a series may not be originally issued
at one time, and if the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of Payment
where the Company wishes to have Securities of such series authenticated upon
original issuance, the Trustee, if so requested by the Company in writing (which
writing need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel), shall appoint, in accordance with this Section and in
accordance with such procedures as shall be acceptable to the Trustee, an
Authenticating Agent having an office in a Place of Payment designated by the
Company with respect to such series of Securities.
51
<PAGE>
ARTICLE TEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 1001. LISTS OF HOLDERS.
Semiannually, not later than January 1 and July 1 in each year,
commencing January 1, 1998, and at such other times as the Trustee may request
in writing, the Company shall furnish or cause to be furnished to the Trustee
information as to the names and addresses of the Holders, and the Trustee shall
preserve such information and similar information received by it in any other
capacity and afford to the Holders access to information so preserved by it, all
to such extent, if any, and in such manner as shall be required by the Trust
Indenture Act; provided, however, that no such list need be furnished so long as
the Trustee shall be the Security Registrar.
SECTION 1002. REPORTS BY TRUSTEE AND COMPANY.
Not later than July 1 in each year, commencing July 1, 1998, the
Trustee shall transmit to the Holders, the Commission and each securities
exchange upon which any Securities are listed, a report, dated as of the next
preceding May 15, with respect to any events and other matters described in
Section 313(a) of the Trust Indenture Act, in such manner and to the extent
required by the Trust Indenture Act. The Trustee shall transmit to the Holders,
the Commission and each securities exchange upon which any Securities are
listed,, and the Company shall file with the Trustee (within thirty (30) days
after filing with the Commission in the case of reports which pursuant to the
Trust Indenture Act must be filed with the Commission and furnished to the
Trustee) and transmit to the Holders, such other information, reports and other
documents, if any, at such times and in such manner, as shall be required by the
Trust Indenture Act.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, CONVEYANCE OR OTHER TRANSFER
SECTION 1101. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other
corporation, or convey or otherwise transfer or lease its properties and assets
substantially as an entirety to any Person, unless
(a) the corporation 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 Person organized and existing
under the laws of the United States, any State thereof or the District
of Columbia, and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, the due and punctual payment of the principal of and
premium, if any, and interest, if any, on all Outstanding Securities and
the performance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(b) immediately after giving effect to such transaction and
treating any indebtedness for borrowed money which becomes an obligation
of the Company as a result of such transaction as having been incurred
by the Company at the time of such transaction, no Event
52
<PAGE>
of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have occurred and be
continuing; and
(c) the Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, or other transfer or lease and such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transactions have been
complied with.
SECTION 1102. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation by the Company with or merger by the
Company into any other corporation or any conveyance, or other transfer or lease
of the properties and assets of the Company substantially as an entirety in
accordance with Section 1101, the successor corporation formed by such
consolidation or into which the Company is merged or the Person 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 Outstanding hereunder.
ARTICLE TWELVE
SUPPLEMENTAL INDENTURES
SECTION 1201. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(a) 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, all as provided in Article Eleven; or
(b) to add one or more covenants of the Company or other
provisions for the benefit of all Holders or for the benefit of the
Holders of, or to remain in effect only so long as there shall be
Outstanding, Securities of one or more specified series, or one or more
specified Tranches thereof, or to surrender any right or power herein
conferred upon the Company; or
(c) to add any additional Events of Default with respect to all or
any series of Securities Outstanding hereunder; or
(d) to change or eliminate any provision of this Indenture or to
add any new provision to this Indenture; provided, however, that if such
change, elimination or addition shall adversely affect the interests of
the Holders of Securities of any series or Tranche Outstanding on the
date of such indenture supplemental hereto in any material respect, such
change, elimination or addition shall become effective (1) with respect
to such series or Tranche only pursuant to the provisions of Section
1202 hereof or (2) when no Security of such series or Tranche remains
Outstanding; or
53
<PAGE>
(e) to provide collateral security for all but not part of the
Securities; or
(f) to establish the form or terms of Securities of any series or
Tranche as contemplated by Sections 201 and 301; or
(g) to provide for the authentication and delivery of bearer
securities and coupons appertaining thereto representing interest, if
any, thereon and for the procedures for the registration, exchange and
replacement thereof and for the giving of notice to, and the
solicitation of the vote or consent of, the holders thereof, and for any
and all other matters incidental thereto; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a separate or successor Trustee or co-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 clause (b) of Section 911; or
(i) to provide for the procedures required to permit the Company
to utilize, at its option, a non-certificated system of registration for
all, or any series or Tranche of, the Securities; or
(j) to change any place or places where (1) the principal of and
premium, if any, and interest, if any, on all or any series of
Securities, or any Tranche thereof, shall be payable, (2) all or any
series of Securities, or any Tranche thereof, may be surrendered for
registration of transfer, (3) all or any series of Securities, or any
Tranche thereof, may be surrendered for exchange and (4) notices and
demands to or upon the Company in respect of all or any series of
Securities, or any Tranche thereof, and this Indenture may be served; or
(k) 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 changes to the provisions hereof or to add
other provisions with respect to matters or questions arising under this
Indenture, provided that such other changes or additions shall not
adversely affect the interests of the Holders of Securities of any
series or Tranche in any material respect.
Without limiting the generality of the foregoing, if the Trust
Indenture Act as in effect at the date of the execution and delivery of this
Indenture or at any time thereafter shall be amended and
(x) if any such amendment shall require one or more changes to any
provisions hereof or the inclusion herein of any additional provisions,
or shall by operation of law be deemed to effect such changes or
incorporate such provisions by reference or otherwise, this Indenture
shall be deemed to have been amended so as to conform to such amendment
to the Trust Indenture Act, and the Company and the Trustee may, without
the consent of any Holders, enter into an indenture supplemental hereto
to effect or evidence such changes or additional provisions; or
(y) if any such amendment shall permit one or more changes to, or
the elimination of, any provisions hereof which, at the date of the
execution and delivery hereof or at any time thereafter, are required by
the Trust Indenture Act to be contained herein, this Indenture shall be
deemed to have been amended to effect such changes or elimination, and
the Company and the Trustee may, without the consent of any Holders,
enter into an indenture supplemental hereto to evidence such amendment
hereof.
54
<PAGE>
SECTION 1202. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities of all series then Outstanding
under this Indenture, considered as one class, by Act of said Holders delivered
to the Company and the Trustee, the Company, 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; provided,
however, that if there shall be Securities of more than one series Outstanding
hereunder and if a proposed supplemental indenture shall directly affect the
rights of the Holders of Securities of one or more, but less than all, of such
series, then the consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all series so directly
affected, considered as one class, shall be required; and provided, further,
that if the Securities of any series shall have been issued in more than one
Tranche and if the proposed supplemental indenture shall directly affect the
rights of the Holders of Securities of one or more, but less than all, of such
Tranches, then the consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all Tranches so directly
affected, considered as one class, shall be required; and provided, further,
that no such supplemental indenture shall:
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on (except as provided in
Section 312 hereof), any Security, or reduce the principal amount
thereof or the rate of interest thereon (or the amount of any
installment of interest thereon) or change the method of calculating
such rate or reduce any premium payable upon the redemption thereof, or
reduce the amount of the principal of a Discount Security that would be
due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 802, or change the coin or currency (or
other property), in which any Security or any premium or the interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity of any
Security (or, in the case of redemption, on or after the Redemption
Date), without, in any such case, the consent of the Holder of such
Security, or
(b) reduce the percentage in principal amount of the Outstanding
Securities of any series or any Tranche thereof, the consent of the
Holders of which is required for any such supplemental indenture, or the
consent of the Holders of which is required for any waiver of compliance
with any provision of this Indenture or of any default hereunder and its
consequences, or reduce the requirements of Section 1304 for quorum or
voting, without, in any such case, the consent of the Holders of each
Outstanding Security of such series or Tranche, or
(c) modify any of the provisions of this Section, Section 607 or
Section 813 with respect to the Securities of any series, or any Tranche
thereof, or except to increase the percentages in principal amount
referred to in this Section or such other Sections or to provide that
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, or the deletion of
this proviso, in accordance with the requirements of clause (b) of
Section 911 and clause (h) of Section 1201.
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 of one or
more Tranches thereof, or which modifies the rights of the Holders of Securities
of such series or Tranches with respect to such covenant or other provision,
shall be
55
<PAGE>
deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series or Tranche.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof. A
waiver by a Holder of such Holder's right to consent under this Section shall be
deemed to be a consent of such Holder.
SECTION 1203. 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 901) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties, immunities or liabilities under this Indenture or
otherwise.
SECTION 1204. 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. Any supplemental indenture permitted by this
Article may restate this Indenture in its entirety, and, upon the execution and
delivery thereof, any such restatement shall supersede this Indenture as
theretofore in effect for all purposes.
SECTION 1205. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 1206. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series, or any Tranche thereof, 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, or
any Tranche thereof, so modified as to conform, in the opinion of the Trustee
and the Company, to any such supplemental indenture may be prepared and executed
by the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series or Tranche.
SECTION 1207. MODIFICATION WITHOUT SUPPLEMENTAL INDENTURE.
If the terms of any particular series of Securities shall have
been established in a Board Resolution or an Officer's Certificate pursuant to a
Board Resolution as contemplated by Section 301, and not in an indenture
supplemental hereto, additions to, changes in or the elimination of any of such
terms may be effected by means of a supplemental Board Resolution or Officer's
Certificate, as the case may be, delivered to, and accepted by, the Trustee;
provided, however, that such supplemental Board Resolution or Officer's
Certificate shall not be accepted by the Trustee or otherwise be effective
unless all conditions set forth in this Indenture which would be required to be
satisfied if such additions, changes or elimination were contained in a
supplemental indenture shall have been
56
<PAGE>
appropriately satisfied. Upon the acceptance thereof by the Trustee, any such
supplemental Board Resolution or Officer's Certificate shall be deemed to be a
"supplemental indenture" for purposes of Section 1204 and 1206.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of one or more, or all, series,
or any Tranche or Tranches thereof, may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series or Tranches.
SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Securities of one or more, or all, series, or any Tranche or Tranches
thereof, for any purpose specified in Section 1301, to be held at such
time and at such place in the Borough of Manhattan, The City of New
York, as the Trustee shall determine, or, with the approval of the
Company, at any other place. Notice of every such meeting, setting forth
the time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be given, in the manner
provided in Section 106, not less than 21 nor more than 180 days prior
to the date fixed for the meeting.
(b) If the Trustee shall have been requested to call a meeting of
the Holders of Securities of one or more, or all, series, or any Tranche
or Tranches thereof, by the Company or by the Holders of 33% in
aggregate principal amount of all of such series and Tranches,
considered as one class, for any purpose specified in Section 1301, by
written request setting forth in reasonable detail the action proposed
to be taken at the meeting, and the Trustee shall not have given the
notice of such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided
herein, then the Company or the Holders of Securities of such series and
Tranches in the amount above specified, as the case may be, may
determine the time and the place in the Borough of Manhattan, The City
of New York, or in such other place as shall be determined or approved
by the Company, for such meeting and may call such meeting for such
purposes by giving notice thereof as provided in clause (a) of this
Section.
(c) Any meeting of Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, shall be valid without
notice if the Holders of all Outstanding Securities of such series or
Tranches are present in person or by proxy and if representatives of the
Company and the Trustee are present, or if notice is waived in writing
before or after the meeting by the Holders of all Outstanding Securities
of such series, or any Tranche or Tranches thereof, or by such of them
as are not present at the meeting in person or by proxy, and by the
Company and the Trustee.
SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS.
57
<PAGE>
To be entitled to vote at any meeting of Holders of Securities of
one or more, or all, series, or any Tranche or Tranches thereof, a Person shall
be (a) a Holder of one or more Outstanding Securities of such series or
Tranches, or (b) a Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such series or
Tranches by such Holder or Holders. The only Persons who shall be entitled to
attend any meeting of Holders of Securities of any series or Tranche shall be
the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 1304. QUORUM; ACTION.
The Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of the series and Tranches with respect to
which a meeting shall have been called as hereinbefore provided, considered as
one class, shall constitute a quorum for a meeting of Holders of Securities of
such series and Tranches; provided, however, that if any action is to be taken
at such meeting which this Indenture expressly provides may be taken by the
Holders of a specified percentage, which is less than a majority, in principal
amount of the Outstanding Securities of such series and Tranches, considered as
one class, the Persons entitled to vote such specified percentage in principal
amount of the Outstanding Securities of such series and Tranches, considered as
one class, shall constitute a quorum. In the absence of a quorum within one hour
of the time appointed for any such meeting, the meeting shall, if convened at
the request of Holders of Securities of such series and Tranches, be dissolved.
In any other case the meeting may be adjourned for such period as may be
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for such period as may be determined
by the chairman of the meeting prior to the adjournment of such adjourned
meeting. Except as provided by clause (e) of Section 1305, notice of the
reconvening of any meeting adjourned for more than 30 days shall be given as
provided in clause (a) of Section 1302 not less than ten days prior to the date
on which the meeting is scheduled to be reconvened. Notice of the reconvening of
an adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Outstanding Securities of such series and Tranches
which shall constitute a quorum.
Except as limited by Section 1202, any resolution presented to a
meeting or adjourned meeting duly reconvened at which a quorum is present as
aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in aggregate principal amount of the Outstanding Securities of the
series and Tranches with respect to which such meeting shall have been called,
considered as one class; provided, however, that, except as so limited, any
resolution with respect to any action which this Indenture expressly provides
may be taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of such series and
Tranches, considered as one class, may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Securities of such series and Tranches, considered as one
class.
Any resolution passed or decision taken at any meeting of Holders
of Securities duly held in accordance with this Section shall be binding on all
the Holders of Securities of the series and Tranches with respect to which such
meeting shall have been held, whether or not present or represented at the
meeting.
58
<PAGE>
SECTION 1305. ATTENDANCE AT MEETINGS; DETERMINATION OF VOTING RIGHTS; CONDUCT
AND ADJOURNMENT OF MEETINGS.
(a) Attendance at meetings of Holders of Securities may be in
person or by proxy; and, to the extent permitted by law, any such proxy
shall remain in effect and be binding upon any future Holder of the
Securities with respect to which it was given unless and until
specifically revoked by the Holder or future Holder of such Securities
before being voted.
(b) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable
for any meeting of Holders of Securities in regard to proof of the
holding of such Securities and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence
of the right to vote, and such other matters concerning the conduct of
the meeting as it shall deem appropriate. Except as otherwise permitted
or required by any such regulations, the holding of Securities shall be
proved in the manner specified in Section 104 and the appointment of any
proxy shall be proved in the manner specified in Section 104. Such
regulations may provide that written instruments appointing proxies,
regular on their face, may be presumed valid and genuine without the
proof specified in Section 104 or other proof.
(c) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders as provided in clause (b) of Section
1302, in which case the Company or the Holders of Securities of the
series and Tranches calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of the
Persons entitled to vote a majority in aggregate principal amount of the
Outstanding Securities of all series and Tranches represented at the
meeting, considered as one class.
(d) At any meeting each Holder or proxy shall be entitled to one
vote for each $1 principal amount of Securities held or represented by
him; provided, however, that no vote shall be cast or counted at any
meeting in respect of any Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding. The chairman
of the meeting shall have no right to vote, except as a Holder of a
Security or proxy.
(e) Any meeting duly called pursuant to Section 1302 at which a
quorum is present may be adjourned from time to time by Persons entitled
to vote a majority in aggregate principal amount of the Outstanding
Securities of all series and Tranches represented at the meeting,
considered as one class; and the meeting may be held as so adjourned
without further notice.
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders
shall be by written ballots on which shall be subscribed the signatures of the
Holders or of their representatives by proxy and the principal amounts and
serial numbers of the Outstanding Securities, of the series and Tranches with
respect to which the meeting shall have been called, held or represented by
them. The permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports of all votes cast at the meeting. A record of the
proceedings of each meeting of Holders shall be prepared by the secretary of the
meeting and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits
59
<PAGE>
by one or more persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was given as provided in
Section 1302 and, if applicable, Section 1304. Each copy shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one such copy shall be delivered to the Company, and another to the
Trustee to be preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
SECTION 1307. ACTION WITHOUT MEETING.
In lieu of a vote of Holders at a meeting as hereinbefore
contemplated in this Article, any request, demand, authorization, direction,
notice, consent, waiver or other action may be made, given or taken by Holders
by written instruments as provided in Section 104.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 1401. LIABILITY SOLELY CORPORATE.
No recourse shall be had for the payment of the principal of or
premium, if any, or interest, if any, on any Securities, or any part thereof, or
for any claim based thereon or otherwise in respect thereof, or of the
indebtedness represented thereby, or upon any obligation, covenant or agreement
under this Indenture, against any incorporator, stockholder, officer or
director, as such, past, present or future of the Company or of any predecessor
or successor corporation (either directly or through the Company or a
predecessor or successor corporation), whether by virtue of any constitutional
provision, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly agreed and understood that this
Indenture and all the Securities are solely corporate obligations, and that no
personal liability whatsoever shall attach to, or be incurred by, any
incorporator, stockholder, officer or director, past, present or future, of the
Company or of any predecessor or successor corporation, either directly or
indirectly through the Company or any predecessor or successor corporation,
because of the indebtedness hereby authorized or under or by reason of any of
the obligations, covenants or agreements contained in this Indenture or in any
of the Securities or to be implied herefrom or therefrom, and that any such
personal liability is hereby expressly waived and released as a condition of,
and as part of the consideration for, the execution of this Indenture and the
issuance of the Securities.
-------------------------
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
INTERSTATE POWER COMPANY
60
<PAGE>
By: ________________________________
ATTEST:
___________________________________
________________________________,
TRUSTEE
By: ________________________________
ATTEST:
___________________________________
61
<PAGE>
STATE OF IOWA )
) ss.:
COUNTY OF _____ )
On the ____ day of _________, ____, before me personally came
_______________, to me known, who, being by me duly sworn, did depose and say
that he is the _______________ of Interstate Power Company, the corporation
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,
acknowledging the instrument to be the free act and deed of said corporation.
________________________________
Notary Public
[Notarial Seal]
STATE OF _______ )
) ss.:
COUNTY OF ______ )
On the ____ day of _________, ____, before me personally came
_______________, to me known, who, being by me duly sworn, did depose and say
that he is a _______________ of ________________________________, the national
banking association described in and which executed the foregoing instrument;
that he knows the seal of said national banking association; that the seal
affixed to said instrument is the seal of said national banking association;
that it was so affixed by authority of the Board of Directors of said national
banking association, and that he signed his name thereto by like authority,
acknowledging the instrument to be the free act and deed of said national
banking association.
________________________________
Notary Public
[Notarial Seal]
-i-
Exhibit A-3
__________________________________________
INTERSTATE POWER COMPANY
TO
___________________________, Trustee
_________
Indenture
(For Unsecured Subordinated Debt Securities)
Dated as of __________, ____
__________________________________________
<PAGE>
TABLE OF CONTENTS
RECITAL OF THE COMPANY 1
ARTICLE ONE Definitions and Other Provisions of General
Application 1
SECTION 101. Definitions 1
Act 2
Affiliate 2
Authenticating Agent 2
Authorized Officer 2
Board of Directors 2
Board Resolution 2
Business Day 2
Commission 2
Company 2
Company Request or Company Order 2
Corporate Trust Office 2
Defaulted Interest 3
Discount Security 3
Dollar or $ 3
Eligible Obligations 3
Event of Default 3
Governmental Authority 3
Government Obligations 3
Holder 3
Indenture 3
Interest Payment Date 4
Maturity 4
Officer's Certificate 4
Opinion of Counsel 4
Outstanding 4
Paying Agent 5
Periodic Offering 5
Person 5
Place of Payment 5
Predecessor Security 5
Redemption Date 5
Redemption Price 6
Regular Record Date 6
Required Currency 6
Responsible Officer 6
Securities 6
Security Register and Security Registrar 6
Senior Indebtedness 6
Special Record Date 6
Stated Interest Rate 6
Stated Maturity 6
Tranche 7
Trust Indenture Act 7
Trustee 7
United States 7
SECTION 102. Compliance Certificates and
Opinions 7
SECTION 103. Form of Documents Delivered
to Trustee 7
SECTION 104. Acts of Holders 8
SECTION 105. Notices, Etc. to Trustee and
Company 10
SECTION 106. Notice to Holders of Securities;
Waiver 10
SECTION 107. Conflict with Trust Indenture Act 11
SECTION 108. Effect of Headings and
Table of Contents 11
SECTION 109. Successors and Assigns 11
SECTION 110. Separability Clause 11
SECTION 111. Benefits of Indenture 11
SECTION 112. Governing Law 12
SECTION 113. Legal Holidays 12
ARTICLE TWO Security Forms 12
SECTION 201. Forms Generally 12
SECTION 202. Form of Trustee's
Certificate of Authentication 13
ARTICLE THREE The Securities 13
SECTION 301. Amount Unlimited; Issuable
in Series 13
SECTION 302. Denominations 16
SECTION 303. Execution, Authentication,
Delivery and Dating 16
SECTION 304. Temporary Securities 19
SECTION 305. Registration, Registration
of Transfer and Exchange 19
SECTION 306. Mutilated, Destroyed, Lost
and Stolen Securities 20
SECTION 307. Payment of Interest; Interest
Rights Preserved 21
SECTION 308. Persons Deemed Owners 22
SECTION 309. Cancellation by Security
Registrar 22
SECTION 310. Computation of Interest 23
SECTION 311. Payment to Be in Proper Currency 23
SECTION 312. Extension of Interest Payment 23
ARTICLE FOUR Redemption of Securities 23
SECTION 401. Applicability of Article 23
SECTION 402. Election to Redeem; Notice
to Trustee 23
SECTION 403. Selection of Securities to
Be Redeemed 24
SECTION 404. Notice of Redemption 24
SECTION 405. Securities Payable on
Redemption Date 25
SECTION 406. Securities Redeemed in Part 26
ARTICLE FIVE Sinking Funds 26
SECTION 501. Applicability of Article 26
SECTION 502. Satisfaction of Sinking
Fund Payments with Securities 26
SECTION 503. Redemption of Securities for
Sinking Fund 27
ARTICLE SIX Covenants 27
SECTION 601. Payment of Principal,
Premium and Interest 27
SECTION 602. Maintenance of Office or Agency 27
SECTION 603. Money for Securities Payments
to Be Held in Trust 28
SECTION 604. Corporate Existence 29
SECTION 605. Maintenance of Properties 29
SECTION 606. Annual Officer's Certificate
as to Compliance 30
SECTION 607. Waiver of Certain Covenants 30
ARTICLE SEVEN Satisfaction and Discharge 30
SECTION 701. Satisfaction and Discharge
of Securities 30
SECTION 702. Satisfaction and Discharge of
Indenture 32
SECTION 703. Application of Trust Money 33
ARTICLE EIGHT Events of Default; Remedies 34
SECTION 801. Events of Default 34
SECTION 802. Acceleration of Maturity;
Rescission and Annulment 35
SECTION 803. Collection of Indebtedness and
Suits for Enforcement by Trustee 36
SECTION 804. Trustee May File Proofs of Claim 36
SECTION 805. Trustee May Enforce Claims
Without Possession of Securities 37
SECTION 806. Application of Money Collected 37
SECTION 807. Limitation on Suits 38
SECTION 808. Unconditional Right of Holders
to Receive Principal, Premium
and Interest 38
SECTION 809. Restoration of Rights and
Remedies 38
SECTION 810. Rights and Remedies Cumulative 39
SECTION 811. Delay or Omission Not Waiver 39
SECTION 812. Control by Holders of Securities 39
SECTION 813. Waiver of Past Defaults 39
SECTION 814. Undertaking for Costs 40
SECTION 815. Waiver of Stay or Extension Laws 40
ARTICLE NINE The Trustee 40
SECTION 901. Certain Duties and
Responsibilities 40
SECTION 902. Notice of Defaults 41
SECTION 903. Certain Rights of Trustee 42
SECTION 904. Not Responsible for Recitals
or Issuance of Securities 43
SECTION 905. May Hold Securities 43
SECTION 906. Money Held in Trust 43
SECTION 907. Compensation and Reimbursement 43
SECTION 908. Disqualification; Conflicting
Interests 44
SECTION 909. Corporate Trustee Required;
Eligibility 44
SECTION 910. Resignation and Removal;
Appointment of Successor 45
SECTION 911. Acceptance of Appointment
by Successor 46
SECTION 912. Merger, Conversion, Consolidation
or Succession to Business 47
SECTION 913. Preferential Collection of
Claims Against Company 47
SECTION 914. Co-trustees and Separate Trustees 48
SECTION 915. Appointment of Authenticating
Agent 49
ARTICLE TEN Holders' Lists and Reports by Trustee
and Company 51
SECTION 1001. Lists of Holders 51
SECTION 1002. Reports by Trustee and Company 51
ARTICLE ELEVEN Consolidation, Merger, Conveyance
or Other Transfer 51
SECTION 1101. Company May Consolidate, Etc.,
Only on Certain Terms 51
SECTION 1102. Successor Corporation
Substituted 52
ARTICLE TWELVE Supplemental Indentures 52
SECTION 1201. Supplemental Indentures
Without Consent of Holders 52
SECTION 1202. Supplemental Indentures
With Consent of Holders 54
SECTION 1203. Execution of Supplemental
Indentures 55
SECTION 1204. Effect of Supplemental
Indentures 55
SECTION 1205. Conformity With Trust
Indenture Act 55
SECTION 1206. Reference in Securities to
Supplemental Indentures 56
SECTION 1207. Modification Without
Supplemental Indenture 56
ARTICLE THIRTEEN Meetings of Holders; Action
Without Meeting 56
SECTION 1301. Purposes for Which Meetings
May Be Called 56
SECTION 1302. Call, Notice and Place of
Meetings 56
SECTION 1303. Persons Entitled to Vote at
Meetings 57
SECTION 1304. Quorum; Action 57
SECTION 1305. Attendance at Meetings;
Determination of Voting Rights;
Conduct and Adjournment of
Meetings 58
SECTION 1306. Counting Votes and Recording
Action of Meetings 59
SECTION 1307. Action Without Meeting 59
ARTICLE FOURTEEN Immunity of Incorporators,
Stockholders,Officers and Directors 59
SECTION 1401. Liability Solely Corporate 59
ARTICLE FIFTEEN Subordination of Securities 60
SECTION 1501. Securities Subordinate to
Senior Indebtedness. 60
SECTION 1502. Payment Over of Proceeds
of Securities 60
SECTION 1503. Disputes with Holders of
Certain Senior Indebtedness 62
SECTION 1504. Subrogation 62
SECTION 1505. Obligation of the Company
Unconditional 62
SECTION 1506. Priority of Senior
Indebtedness Upon Maturity 63
SECTION 1507. Trustee as Holder of
Senior Indebtedness 63
SECTION 1508. Notice to Trustee to
Effectuate Subordination 63
SECTION 1509. Modification, Extension, etc.
of Senior Indebtedness 64
SECTION 1510. Trustee Has No Fiduciary
Duty to Holders of Senior
Indebtedness 64
SECTION 1511. Paying Agents Other Than the
Trustee 64
SECTION 1512. Rights of Holders of Senior
Indebtedness Not Impaired 64
SECTION 1513. Effect of Subordination
Provisions; Termination 64
Testimonium 66
Signatures and Seals 66
Acknowledgements 65
<PAGE>
IES UTILITIES INC.
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of ________, 1995
Trust Indenture Act Section Indenture Section
310 (a)(1) 909
(a)(2) 909
(a)(3) 914(b)
(a)(4) Not Applicable
(b) 908
910
311 (a) 913
(b) 913
(c) 913
312 (a) 1001
(b) 1001
(c) 1001
313 (a) 1002
(b) 1002
(c) 1002
(d) 1002
314 (a) 1002
(a)(4) 606
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
315 (a) 901
903
(b) 902
(c) 901
(d) 901
(e) 814
316 (a) 812
813
(a)(1)(A) 802
812
(a)(1)(B) 813
(a)(2) Not Applicable
(b) 808
317 (a)(1) 803
(a)(2) 804
(b) 603
318 (a) 107
<PAGE>
INDENTURE, dated as _____________, _____ between
INTERSTATE POWER COMPANY, a corporation duly organized and
existing under the laws of the State of Iowa (herein
called the "Company"), having its principal office at 1000
Main Street, Dubuque, Iowa 52004-07691, and _ _________________
_______, a national banking association organized and existing
under the laws of the united States of America, having its
principal corporate trust office at ___________________________
_________________________________________, as Trustee (herein
called the "Trustee").
RECITAL 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 subordinated debentures, notes
or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as
contemplated herein; and all acts necessary to make this
Indenture a valid agreement of the Company have been
performed.
For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise
requires, capitalized terms used herein shall have the
meanings assigned to them in Article One of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is
mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of
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:
(a) the terms defined in this Article have the
meanings assigned to them in this Article and include the
plural as well as the singular;
(b) all terms used herein without definition which
are defined in the Trust Indenture Act, either directly or
by reference therein, have the meanings assigned to them
therein;
(c) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with
generally accepted accounting principles in the United
States, and, except as otherwise herein expressly provided,
the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder
shall mean such accounting principles as are generally
accepted in the United States at the date of such
computation or, at the election of the Company from time to
time, at the date of the execution and delivery of this
Indenture; provided, however, that in determining generally
accepted accounting principles applicable to the Company,
the Company shall, to the extent required, conform to any
order, rule or regulation of any administrative agency,
regulatory authority or other governmental body having
jurisdiction over the Company; and
(d) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
Certain terms, used principally in Article Nine, are
defined in that Article.
"Act", when used with respect to any Holder of a
Security, has the meaning specified in Section 104.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For the purposes of this definition, "control" when
used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or
through one or more intermediaries, 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 (other than
the Company or an Affiliate of the Company) authorized by the
Trustee to act on behalf of the Trustee to authenticate one or
more series of Securities.
"Authorized Officer" means the Chairman of the Board,
the President, any Vice President, the Treasurer, any
Assistant Treasurer or any other duly authorized officer of
the Company.
"Board of Directors" means either the board of
directors of the Company or any committee thereof duly
authorized to act in respect of matters relating to this
Indenture.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors
and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to a Place of
Payment or any other particular location specified in the
Securities or this Indenture, means any day, other than a
Saturday or Sunday, which is not a day on which banking
institutions or trust companies in such Place of Payment or
other location are generally authorized or required by law,
regulation or executive order to remain closed, except as may
be otherwise specified as contemplated by Section 301.
"Commission" means the Securities and Exchange Commis
sion, as from time to time constituted, created under the
Securities Exchange Act of 1934, as amended, or, if at any
time after the date of execution and delivery of this
Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then
the body, if any, performing such duties at such time.
"Company" means the Person named as the "Company" in
the first paragraph of this Indenture 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 an
Authorized Officer and delivered to the Trustee.
"Corporate Trust Office" means the office of the
Trustee at which at any particular time its corporate trust
business shall be principally administered, which office at
the date of execution and delivery of this Indenture is
located at One First National Plaza, Suite 0126, Chicago,
Illinois 60670-0126.
"corporation" means a corporation, association, compa
ny, joint stock company or business trust.
"Defaulted Interest" has the meaning specified in
Section 307.
"Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 802. "interest" with respect to a
Discount Security means interest, if any, borne by such
Security at a Stated Interest Rate.
"Dollar" or "$" means a dollar or other equivalent
unit in such coin or currency of the United States as at the
time shall be legal tender for the payment of public and
private debts.
"Eligible Obligations" means:
(a) with respect to Securities denominated in
Dollars, Government Obligations; or
(b) with respect to Securities denominated in a
currency other than Dollars or in a composite currency,
such other obligations or instruments as shall be specified
with respect to such Securities, as contemplated by Section
301.
"Event of Default" has the meaning specified in
Section 801.
"Governmental Authority" means the government of the
United States or of any State or Territory thereof or of the
District of Columbia or of any county, municipality or other
political subdivision of any thereof, or any department,
agency, authority or other instrumentality of any of the
foregoing.
"Government Obligations" means:
(a) direct obligations of, or obligations
the timely payment of principal of and interest on
which are unconditionally guaranteed by, the
United States entitled to the benefit of the full
faith and credit thereof; and
(b) certificates, depositary receipts or
other instruments which evidence a direct
ownership interest in obligations described in
clause (a) above or in any specific interest or
principal payments due in respect thereof;
provided, however, that the custodian of such
obligations or specific interest or principal
payments shall be a bank or trust company (which
may include the Trustee or any Paying Agent)
subject to Federal or state supervision or
examination with a combined capital and surplus of
at least $50,000,000; and provided, further, that
except as may be otherwise required by law, such
custodian shall be obligated to pay to the holders
of such certificates, depositary receipts or other
instruments the full amount received by such
custodian in respect of such obligations or
specific payments and shall not be permitted to
make any deduction therefrom.
"Holder" means a Person in whose name a Security
is registered in the Security Register.
"Indenture" means this instrument as originally
executed and delivered 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 and shall include the
terms of particular series of Securities established as
contemplated by Section 301.
"Interest Payment Date", when used with respect to
any Security, means the Stated Maturity of an
installment of interest on such Security.
"Maturity", when used with respect to any
Security, means the date on which the principal of such
Security or an installment of principal becomes due and
payable as provided in such Security or in this
Indenture, whether at the Stated Maturity, by
declaration of acceleration, upon call for redemption
or otherwise.
"Officer's Certificate" means a certificate signed
by an Authorized Officer and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel for the Company, or other
counsel acceptable to the Trustee.
"Outstanding", when used with respect to
Securities, means, as of the date of determination, all
Securities theretofore authenticated and delivered
under this Indenture, except:
(a) Securities theretofore canceled by the
Trustee or delivered to the Trustee for
cancellation;
(b) Securities deemed to have been paid in
accordance with Section 701; and
(c) 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 and the Company that such
Securities are held by a bona fide purchaser or
purchasers in whose hands such Securities are
valid obligations of the Company;
provided, however, that in determining whether or not
the Holders of the requisite principal amount of the
Securities Outstanding under this Indenture, or the
Outstanding Securities of any series or Tranche, have
given any request, demand, authorization, direction,
notice, consent or waiver hereunder or whether or not a
quorum is present at a meeting of Holders of
Securities,
(x) Securities owned by the Company or any
other obligor upon the Securities or any Affiliate
of the Company or of such other obligor (unless
the Company, such Affiliate or such obligor owns
all Securities Outstanding under this Indenture,
or all Outstanding Securities of each such series
and each such Tranche, as the case may be,
determined without regard to this clause (x))
shall be disregarded and deemed not to be Out
standing, except that, in determining whether the
Trustee shall be protected in relying upon any
such request, demand, authorization, direction,
notice, consent or waiver or upon any such
determination as to the presence of a quorum, only
Securities which the Trustee knows to be so owned
shall be so disregarded; provided, however, that
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;
(y) the principal amount of a Discount
Security that shall be deemed to be Outstanding
for such purposes shall be the amount of the
principal thereof that would be due and payable as
of the date of such determination upon a
declaration of acceleration of the Maturity
thereof pursuant to Section 802; and
(z) the principal amount of any Security
which is denominated in a currency other than
Dollars or in a composite currency that shall be
deemed to be Outstanding for such purposes shall
be the amount of Dollars which could have been
purchased by the principal amount (or, in the case
of a Discount Security, the Dollar equivalent on
the date determined as set forth below of the
amount determined as provided in (y) above) of
such currency or composite currency evidenced by
such Security, in each such case certified to the
Trustee in an Officer's Certificate, based (1) on
the average of the mean of the buying and selling
spot rates quoted by three banks which are members
of the New York Clearing House Association
selected by the Company in effect at 11:00 A.M.
(New York time) in The City of New York on the
fifth Business Day preceding any such
determination or (2) if on such fifth Business Day
it shall not be possible or practicable to obtain
such quotations from such three banks, on such
other quotations or alternative methods of deter
mination which shall be as consistent as
practicable with the method set forth in (1)
above;
provided, further, that, in the case of any Security
the principal of which is payable from time to time
without presentment or surrender, the principal amount
of such Security that shall be deemed to be Outstanding
at any time for all purposes of this Indenture shall be
the original principal amount thereof less the
aggregate amount of principal thereof theretofore paid.
"Paying Agent" means any Person, including the
Company, authorized by the Company to pay the principal
of and premium, if any, or interest, if any, on any
Securities on behalf of the Company.
"Periodic Offering" means an offering of
Securities of a series from time to time any or all of
the specific terms of which Securities, including
without limitation the rate or rates of interest, if
any, thereon, the Stated Maturity or Maturities thereof
and the redemption provisions, if any, with respect
thereto, are to be determined by the Company or its
agents upon the issuance of such Securities.
"Person" means any individual, corporation,
partnership, joint venture, trust or unincorporated
organization or any Governmental Authority thereof.
"Place of Payment", when used with respect to the
Securities of any series, or Tranche thereof, means the
place or places, specified as contemplated by Section
301, at which, subject to Section 602, principal of and
premium, if any, and interest, if any, on the
Securities of such series or Tranche are payable.
"Predecessor Security" of any particular Security
means every previous Security evidencing all or a
portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this
definition, any Security authenticated and delivered
under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be
deemed (to the extent lawful) to evidence the same debt
as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such
redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any
Security to be redeemed, means the price at which it is
to be redeemed pursuant to this Indenture.
"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.
"Required Currency" has the meaning specified in
Section 311.
"Responsible Officer", when used with respect to
the Trustee, means any officer of the Trustee assigned
by the Trustee to administer its corporate trust
matters.
"Securities" has the meaning stated in the first
recital of this Indenture and more particularly means
any securities authenticated and delivered under this
Indenture.
"Security Register" and "Security Registrar" have
the respective meanings specified in Section 305.
"Senior Indebtedness" means all obligations (other
than non-recourse obligations and the indebtedness
issued under this Indenture) of, or guaranteed or
assumed by, the Company for borrowed money, including
both senior and subordinated indebtedness for borrowed
money (other than the Securities), or for the payment
of money relating to any lease which is capitalized on
the consolidated balance sheet of the Company and its
subsidiaries in accordance with generally accepted
accounting principles as in effect from time to time,
or evidenced by bonds, debentures, notes or other
similar instruments, and in each case, amendments,
renewals, extensions, modifications and refundings of
any such indebtedness or obligations, whether existing
as of the date of this Indenture or subsequently
incurred by the Company.
"Special Record Date" for the payment of any
Defaulted Interest on the Securities of any series
means a date fixed by the Trustee pursuant to Section
307.
"Stated Interest Rate" means a rate (whether fixed
or variable) at which an obligation by its terms is
stated to bear simple interest. Any calculation or
other determination to be made under this Indenture by
reference to the Stated Interest Rate on a Security
shall be made without regard to the effective interest
cost to the Company of such Security and without regard
to the Stated Interest Rate on, or the effective cost
to the Company of, any other indebtedness the Company's
obligations in respect of which are evidenced or
secured in whole or in part by such Security.
"Stated Maturity", when used with respect to any
obligation or any installment of principal thereof or
interest thereon, means the date on which the principal
of such obligation or such installment of principal or
interest is stated to be due and payable (without
regard to any provisions for redemption, prepayment,
acceleration, purchase or extension).
"Tranche" means a group of Securities which (a)
are of the same series and (b) have identical terms
except as to principal amount and/or date of issuance.
"Trust Indenture Act" means, as of any time, the
Trust Indenture Act of 1939, as amended, or any
successor statute, as in effect at such time.
"Trustee" means the Person named as the "Trustee"
in the first paragraph of this Indenture until a
successor Trustee shall have become such with respect
to one or more series of Securities pursuant to the
applicable provisions of this Indenture, and thereafter
"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.
"United States" means the United States of
America, its Territories, its possessions and other
areas subject to its political jurisdiction.
SECTION 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in
this Indenture, upon any application or request by the
Company to the Trustee to take any action under any
provision of this Indenture, the Company shall, if
requested by the Trustee, furnish to the Trustee an
Officer's Certificate stating that all conditions
precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion
of such counsel all such conditions precedent, if any,
have been complied with, except that in the case of any
such application or request as to which the furnishing
of such documents is specifically required by any
provision of this Indenture relating to such particular
application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to
compliance with a condition or covenant provided for in
this Indenture shall include:
(a) a statement that each Person signing
such certificate or opinion has read such covenant
or condition and the definitions herein relating
thereto;
(b) a brief statement as to the nature and
scope of the examination or investigation upon
which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each
such Person, such Person has made such examination
or investigation as is necessary to enable such
Person to express an informed opinion as to
whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the
opinion of each such Person, such condition or
covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are
required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion
of, only one such Person, or that they be so certified
or covered by only one document, but one such Person
may certify or give an opinion with respect to some
matters and one or more other such Persons as to other
matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of
the Company may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows,
or in the exercise of reasonable care should know, that
the certificate or opinion or representations with
respect to the matters upon which such Officer's
Certificate or opinion are based are erroneous. Any
such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an
officer or officers of the Company stating that the
information with respect to such factual matters is in
the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should
know, that the certificate or opinion or
representations with respect to such matters are
erroneous.
Where any Person is required to make, give or
execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments
under this Indenture, they may, but need not, be
consolidated and form one instrument.
Whenever, subsequent to the receipt by the
Trustee of any Board Resolution, Officer's Certificate,
Opinion of Counsel or other document or instrument, a
clerical, typographical or other inadvertent or
unintentional error or omission shall be discovered
therein, a new document or instrument may be
substituted therefor in corrected form with the same
force and effect as if originally filed in the
corrected form and, irrespective of the date or dates
of the actual execution and/or delivery thereof, such
substitute document or instrument shall be deemed to
have been executed and/or delivered as of the date or
dates required with respect to the document or
instrument for which it is substituted. Anything in
this Indenture to the contrary notwithstanding, if any
such corrective document or instrument indicates that
action has been taken by or at the request of the
Company which could not have been taken had the
original document or instrument not contained such
error or omission, the action so taken shall not be
invalidated or otherwise rendered ineffective but shall
be and remain in full force and effect, except to the
extent that such action was a result of willful
misconduct or bad faith. Without limiting the
generality of the foregoing, any Securities issued
under the authority of such defective document or
instrument shall nevertheless be the valid obligations
of the Company entitled to the benefits of this
Indenture equally and ratably with all other
Outstanding Securities, except as aforesaid.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization,
direction, notice, consent, election, waiver or
other action provided by this Indenture to be
made, given or taken by Holders may be embodied in
and evidenced by one or more instruments of
substantially similar tenor signed by such Holders
in person or by an agent duly appointed in writing
or, alternatively, may be embodied in and
evidenced by the record of Holders voting in favor
thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders
duly called and held in accordance with the
provisions of Article Thirteen, or a combination
of such instruments and any such record. Except
as herein otherwise expressly provided, such
action shall become effective when such instrument
or instruments or record or both are delivered to
the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or
instruments and any such record (and the action
embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders
signing such instrument or instruments and so
voting at any such meeting. Proof of execution of
any such instrument or of a writing appointing any
such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of
this Indenture and (subject to Section 901)
conclusive in favor of the Trustee and the
Company, if made in the manner provided in this
Section. The record of any meeting of Holders
shall be proved in the manner provided in Section
1306.
(b) 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 or may
be proved in any other manner which the Trustee
and the Company deem sufficient. 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.
(c) The principal amount (except as
otherwise contemplated in clause (y) of the
proviso to the definition of Outstanding) and
serial numbers of Securities held by any Person,
and the date of holding the same, shall be proved
by the Security Register.
(d) Any request, demand, authorization,
direction, notice, consent, election, waiver or
other Act of a Holder 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 Com
pany in reliance thereon, whether or not notation
of such action is made upon such Security.
(e) Until such time as written instruments
shall have been delivered to the Trustee with
respect to the requisite percentage of principal
amount of Securities for the action contemplated
by such instruments, any such instrument executed
and delivered by or on behalf of a Holder may be
revoked with respect to any or all of such
Securities by written notice by such Holder or any
subsequent Holder, proven in the manner in which
such instrument was proven.
(f) Securities of any series, or any Tranche
thereof, authenticated and delivered after any Act
of Holders may, and shall if required by the
Trustee, bear a notation in form approved by the
Trustee as to any action taken by such Act of
Holders. If the Company shall so determine, new
Securities of any series, or any Tranche thereof,
so modified as to conform, in the opinion of the
Trustee and the Company, to such action may be
prepared and executed by the Company and
authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series
or Tranche.
(g) If the Company shall solicit from
Holders any request, demand, authorization,
direction, notice, consent, waiver or other Act,
the Company may, at its option, by Company Order,
fix in advance a record date for the determination
of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver
or other Act, but the Company shall have no
obligation to do so. If such a record date is
fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act
may be given before or after such record date, but
only the Holders of record at the close of
business on the record date shall be deemed to be
Holders for the purposes of determining whether
Holders of the requisite proportion of the
Outstanding Securities have authorized or agreed
or consented to such request, demand,
authorization, direction, notice, consent, waiver
or other Act, and for that purpose the Outstanding
Securities shall be computed as of the record
date.
SECTION 105. Notices, Etc. to Trustee and Company.
Any request, demand, authorization,
direction, notice, consent, election, 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, the Trustee by any Holder or by the
Company, or 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 delivered personally to an officer or other
responsible employee of the addressee, or transmitted
by facsimile transmission, telex or other direct
written electronic means to such telephone number or
other electronic communications address as the parties
hereto shall from time to time designate, or
transmitted by registered mail, charges prepaid, to the
applicable address set opposite such party's name below
or to such other address as either party hereto may
from time to time designate:
If to the Trustee, to:
______________________________
______________________________
______________________________
______________________________
Attention: _____________________
Telephone: _____________________
Telecopy: _____________________
If to the Company, to:
Interstate Power Company
1000 Main Street
P.O. Box 769
Dubuque, Iowa 52004-07691
Attention: General Counsel
Telephone: _________________
Telecopy: _________________
Any communication contemplated herein shall
be deemed to have been made, given, furnished and filed
if personally delivered, on the date of delivery, if
transmitted by facsimile transmission, telex or other
direct written electronic means, on the date of
transmission, and if transmitted by registered mail, on
the date of receipt.
SECTION 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided
herein, where this Indenture provides for notice to
Holders of any event, such notice shall be sufficiently
given, and shall be deemed given, to Holders if in
writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at the address of
such Holder as it appears in the Security Register, not
later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such
notice.
In 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 to Holders
by mail, then such notification as shall be made with
the approval of the Trustee shall constitute a
sufficient notification for every purpose hereunder.
In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect
in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to
other Holders.
Any notice required by this Indenture may be
waived in writing by the Person entitled to receive
such notice, either before or after the event otherwise
to be specified therein, 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.
SECTION 107. Conflict with Trust Indenture Act.
If any provision of this Indenture limits,
qualifies or conflicts with another provision hereof
which is required or deemed to be included in this
Indenture by, or is otherwise governed by, any of the
provisions of the Trust Indenture Act, such other
provision shall control; and if any provision hereof
otherwise conflicts with the Trust Indenture Act, the
Trust Indenture Act shall control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings in this
Indenture 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 and Trustee shall bind their
respective successors and assigns, whether so expressed
or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or
the Securities shall be held to be invalid, illegal or
unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or the Securities,
express or implied, shall give to any Person, other
than the parties hereto, their successors hereunder,
the Holders, and so long as the notice described in
Section 1513 hereof has not been given, the holders of
Senior Indebtedness, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be
governed by and construed in accordance with the laws
of the State of New York, except to the extent that the
law of any other jurisdiction shall be mandatorily
applicable.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security
shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this
Indenture or of the Securities other than a provision
in Securities of any series, or any Tranche thereof, or
in the Board Resolution or Officer's Certificate which
establishes the terms of the Securities of such series
or Tranche, which specifically states that such provi
sion 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, except that if such Business Day is in the
next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day in each
case with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the
Stated Maturity, and, if such payment is made or duly
provided for on such Business Day, no interest shall
accrue on the amount so payable for the period from and
after such Interest Payment Date, Redemption Date or
Stated Maturity, as the case may be, to such Business
Day.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
The definitive Securities of each series
shall be in substantially the form or forms thereof
established in the indenture supplemental hereto
establishing such series or in a Board Resolution
establishing such series, or in an Officer's
Certificate pursuant to such supplemental indenture or
Board Resolution, in each case with such appropriate
insertions, omissions, substitutions and other
variations as are required or permitted by this
Indenture, and may have such letters, numbers or other
marks of identification and such legends or
endorsements placed thereon as may be required to
comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by
their execution of the Securities. If the form or
forms of Securities of any series are established in a
Board Resolution or in an Officer's Certificate
pursuant to a Board Resolution, such Board Resolution
and Officer's Certificate, if any, shall be 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.
Unless otherwise specified as contemplated by
Section 301, the Securities of each series shall be
issuable in registered form without coupons. The
definitive Securities shall be produced in such manner
as shall be determined by the officers executing such
Securities, as evidenced by their execution thereof.
SECTION 202. Form of Trustee's Certificate of
Authentication.
The Trustee's certificate of authentication
shall be in substantially the form set forth below:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
____________________________, 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. Prior to the authentication and delivery of
Securities of any series there shall be established by
specification in a supplemental indenture or in a Board
Resolution, or in an Officer's Certificate pursuant to
a supplemental indenture or a Board Resolution:
(a) the title of the Securities of such
series (which shall distinguish the Securities of
such series from Securities of all other series);
(b) any limit upon the aggregate principal
amount of the Securities of such 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
such series pursuant to Section 304, 305, 306, 406
or 1206 and, except for any Securities which,
pursuant to Section 303, are deemed never to have
been authenticated and delivered hereunder);
(c) the Person or Persons (without specific
identification) to whom interest on Securities of
such series, or any Tranche thereof, shall be
payable on any Interest Payment Date, if other
than the Persons in whose names such Securities
(or one or more Predecessor Securities) are
registered at the close of business on the Regular
Record Date for such interest;
(d) the date or dates on which the principal
of the Securities of such series, or any Tranche
thereof, is payable or any formula or other method
or other means by which such date or dates shall
be determined, by reference to an index or other
fact or event ascertainable outside of this
Indenture or otherwise (without regard to any
provisions for redemption, prepayment,
acceleration, purchase or extension);
(e) the rate or rates at which the
Securities of such series, or any Tranche thereof,
shall bear interest, if any (including the rate or
rates at which overdue principal shall bear
interest, if different from the rate or rates at
which such Securities shall bear interest prior to
Maturity, and, if applicable, the rate or rates at
which overdue premium or interest shall bear
interest, if any), or any formula or other method
or other means by which such rate or rates shall
be determined, by reference to an index or other
fact or event ascertainable outside of this
Indenture or otherwise; the date or dates from
which such interest shall accrue; the Interest
Payment Dates on which such interest shall be
payable and the Regular Record Date, if any, for
the interest payable on such Securities on any
Interest Payment Date; the right of the Company,
if any, to extend the interest payment periods and
the duration of any such extension as contemplated
by Section 312; and the basis of computation of
interest, if other than as provided in Section
310;
(f) the place or places at which or methods
by which (1) the principal of and premium, if any,
and interest, if any, on Securities of such
series, or any Tranche thereof, shall be payable,
(2) registration of transfer of Securities of such
series, or any Tranche thereof, may be effected,
(3) exchanges of Securities of such series, or any
Tranche thereof, may be effected and (4) notices
and demands to or upon the Company in respect of
the Securities of such series, or any Tranche
thereof, and this Indenture may be served; the
Security Registrar and any Paying Agent or Agents
for such series or Tranche; and if such is the
case, that the principal of such Securities shall
be payable without presentment or surrender
thereof;
(g) the period or periods within which, or
the date or dates on which, the price or prices at
which and the terms and conditions upon which the
Securities of such series, or any Tranche thereof,
may be redeemed, in whole or in part, at the
option of the Company and any restrictions on such
redemptions, including but not limited to a
restriction on a partial redemption by the Company
of the Securities of any series, or any Tranche
thereof, resulting in delisting of such Securities
from any national exchange;
(h) the obligation or obligations, if any,
of the Company to redeem or purchase the
Securities of such series, or any Tranche thereof,
pursuant to any sinking fund or other mandatory
redemption provisions or at the option of a Holder
thereof and the period or periods within which or
the date or dates on which, the price or prices at
which and the terms and conditions upon which such
Securities shall be redeemed or purchased, in
whole or in part, pursuant to such obligation, and
applicable exceptions to the requirements of
Section 404 in the case of mandatory redemption or
redemption at the option of the Holder;
(i) the denominations in which Securities of
such series, or any Tranche thereof, shall be
issuable if other than denominations of $1,000 and
any integral multiple thereof;
(j) the currency or currencies, including
composite currencies, in which payment of the
principal of and premium, if any, and interest, if
any, on the Securities of such series, or any
Tranche thereof, shall be payable (if other than
in Dollars);
(k) if the principal of or premium, if any,
or interest, if any, on the Securities of such
series, or any Tranche thereof, are to be payable,
at the election of the Company or a Holder
thereof, in a coin or currency other than that in
which the Securities are stated to be payable, the
period or periods within which, and the terms and
conditions upon which, such election may be made;
(l) if the principal of or premium, if any,
or interest, if any, on the Securities of such
series, or any Tranche thereof, are to be payable,
or are to be payable at the election of the
Company or a Holder thereof, in securities or
other property, the type and amount of such
securities or other property, or the formulary or
other method or other means by which such amount
shall be determined, and the period or periods
within which, and the terms and conditions upon
which, any such election may be made;
(m) if the amount payable in respect of
principal of or premium, if any, or interest, if
any, on the Securities of such series, or any
Tranche thereof, may be determined with reference
to an index or other fact or event ascertainable
outside of this Indenture, the manner in which
such amounts shall be determined to the extent not
established pursuant to clause (e) of this
paragraph;
(n) if other than the principal amount
thereof, the portion of the principal amount of
Securities of such series, or any Tranche thereof,
which shall be payable upon declaration of ac
celeration of the Maturity thereof pursuant to
Section 802;
(o) any Events of Default, in addition to
those specified in Section 801, with respect to
the Securities of such series, and any covenants
of the Company for the benefit of the Holders of
the Securities of such series, or any Tranche
thereof, in addition to those set forth in Article
Six;
(p) the terms, if any, pursuant to which the
Securities of such series, or any Tranche thereof,
may be converted into or exchanged for shares of
capital stock or other securities of the Company
or any other Person;
(q) the obligations or instruments, if any,
which shall be considered to be Eligible
Obligations in respect of the Securities of such
series, or any Tranche thereof, denominated in a
currency other than Dollars or in a composite
currency, and any additional or alternative
provisions for the reinstatement of the Company's
indebtedness in respect of such Securities after
the satisfaction and discharge thereof as provided
in Section 701;
(r) if the Securities of such series, or any
Tranche thereof, are to be issued in global form,
(1) any limitations on the rights of the Holder or
Holders of such Securities to transfer or exchange
the same or to obtain the registration of transfer
thereof, (2) any limitations on the rights of the
Holder or Holders thereof to obtain certificates
therefor in definitive form in lieu of temporary
form and (3) any and all other matters incidental
to such Securities;
(s) if the Securities of such series, or any
Tranche thereof, are to be issuable as bearer
securities, any and all matters incidental thereto
which are not specifically addressed in a
supplemental indenture as contemplated by clause
(g) of Section 1201;
(t) to the extent not established pursuant
to clause (r) of this paragraph, any limitations
on the rights of the Holders of the Securities of
such Series, or any Tranche thereof, to transfer
or exchange such Securities or to obtain the
registration of transfer thereof; and if a service
charge will be made for the registration of
transfer or exchange of Securities of such series,
or any Tranche thereof, the amount or terms
thereof;
(u) any exceptions to Section 113, or
variation in the definition of Business Day, with
respect to the Securities of such series, or any
Tranche thereof; and
(v) any other terms of the Securities of
such series, or any Tranche thereof, not
inconsistent with the provisions of this
Indenture.
The Securities of each series, or any Tranche
thereof, shall be subordinated in the right of payment
to Senior Indebtedness as provided in Article Fifteen.
With respect to Securities of a series
subject to a Periodic Offering, the indenture
supplemental hereto or the Board Resolution which
establishes such series, or the Officer's Certificate
pursuant to such supplemental indenture or Board
Resolution, as the case may be, may provide general
terms or parameters for Securities of such series and
provide either that the specific terms of Securities of
such series, or any Tranche thereof, shall be specified
in a Company Order or that such terms shall be
determined by the Company or its agents in accordance
with procedures specified in a Company Order as
contemplated by clause (b) of Section 303.
SECTION 302. Denominations.
Unless otherwise provided as contemplated by
Section 301 with respect to any series of Securities,
or any Tranche thereof, the Securities of each series
shall be issuable in denominations of $1,000 and any
integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and
Dating.
Unless otherwise provided as contemplated by
Section 301 with respect to any series of Securities,
or any Tranche thereof, the Securities shall be
executed on behalf of the Company by an Authorized
Officer and may have the corporate seal of the Company
affixed thereto or reproduced thereon and attested by
any other Authorized Officer. The signature of any or
all of these officers on the Securities may be manual
or facsimile.
Securities bearing the manual or facsimile
signatures of individuals who were at the time of
execution Authorized 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.
The Trustee shall authenticate and deliver
Securities of a series, for original issue, at one time
or from time to time in accordance with the Company
Order referred to below, upon receipt by the Trustee
of:
(a) the instrument or instruments
establishing the form or forms and terms of such
series, as provided in Sections 201 and 301;
(b) a Company Order requesting the
authentication and delivery of such Securities
and, to the extent that the terms of such
Securities shall not have been established in an
indenture supplemental hereto or in a Board
Resolution, or in an Officer's Certificate
pursuant to a supplemental indenture or Board
Resolution, all as contemplated by Sections 201
and 301, either (1) establishing such terms or (2)
in the case of Securities of a series subject to a
Periodic Offering, specifying procedures, accept
able to the Trustee, by which such terms are to be
established (which procedures may provide, to the
extent acceptable to the Trustee, for
authentication and delivery pursuant to oral or
electronic instructions from the Company or any
agent or agents thereof, which oral instructions
are to be promptly confirmed electronically or in
writing), in either case in accordance with the
instrument or instruments delivered pursuant to
clause (a) above;
(c) the Securities of such series, executed
on behalf of the Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect
that:
(1) the form or forms of such
Securities have been duly authorized by the
Company and have been established in
conformity with the provisions of this
Indenture;
(2) the terms of such Securities
have been duly authorized by the Company and
have been established in conformity with the
provisions of this Indenture; and
(3) such Securities, when
authenticated and delivered by the Trustee
and issued and delivered by the Company in
the manner and subject to any conditions
specified in such Opinion of Counsel, will
have been duly issued under this Indenture
and will constitute valid and legally binding
obligations of the Company, entitled to the
benefits provided by this Indenture, and
enforceable in accordance with their terms,
subject, as to enforcement, to laws relating
to or affecting generally the enforcement of
creditors' rights, including, without
limitation, bankruptcy and insolvency laws
and to general principles of equity
(regardless of whether such enforceability is
considered in a proceeding in equity or at
law);
provided, however, that, with respect to Securities of
a series subject to a Periodic Offering, the Trustee
shall be entitled to receive such Opinion of Counsel
only once at or prior to the time of the first
authentication of such Securities (provided that such
Opinion of Counsel addresses the authentication and
delivery of all Securities of such series) and that in
lieu of the opinions described in clauses (2) and (3)
above Counsel may opine that:
(x) when the terms of such Securities shall
have been established pursuant to a Company Order
or Orders or pursuant to such procedures
(acceptable to the Trustee) as may be specified
from time to time by a Company Order or Orders,
all as contemplated by and in accordance with the
instrument or instruments delivered pursuant to
clause (a) above, such terms will have been duly
authorized by the Company and will have been
established in conformity with the provisions of
this Indenture; and
(y) such Securities, when authenticated and
delivered by the Trustee in accordance with this
Indenture and the Company Order or Orders or
specified procedures referred to in paragraph (x)
above and issued and delivered by the Company in
the manner and subject to any conditions specified
in such Opinion of Counsel, will have been duly
issued under this Indenture and will constitute
valid and legally binding obligations of the
Company, entitled to the benefits provided by the
Indenture, and enforceable in accordance with
their terms, subject, as to enforcement, to laws
relating to or affecting generally the enforcement
of creditors' rights, including, without
limitation, bankruptcy and insolvency laws and to
general principles of equity (regardless of
whether such enforceability is considered in a
proceeding in equity or at law).
With respect to Securities of a series
subject to a Periodic Offering, the Trustee may
conclusively rely, as to the authorization by the
Company of any of such Securities, the form and terms
thereof and the legality, validity, binding effect and
enforceability thereof, upon the Opinion of Counsel and
other documents delivered pursuant to Sections 201 and
301 and this Section, as applicable, at or prior to the
time of the first authentication of Securities of such
series unless and until such opinion or other documents
have been superseded or revoked or expire by their
terms. In connection with the authentication and
delivery of Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to
assume that the Company's instructions to authenticate
and deliver such Securities do not violate any rules,
regulations or orders of any Governmental Authority
having jurisdiction over the Company.
If the form or terms of the Securities of any
series have been established by or pursuant to a Board
Resolution or an Officer's Certificate as permitted by
Sections 201 or 301, the Trustee shall not be required
to authenticate such Securities if the issuance 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.
Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities,
or any Tranche thereof, each Security shall be dated
the date of its authentication.
Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities,
or any Tranche thereof, no Security shall be entitled
to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially
in the form provided for herein executed by the Trustee
or its agent by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the
only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled
to the benefits of this Indenture. Notwithstanding the
foregoing, if any Security shall have been
authenticated and delivered hereunder to the Company,
or any Person acting on its behalf, but shall never
have been issued and sold by the Company, and the
Company shall deliver such Security to the Security
Registrar for cancellation as provided in Section 309
together with a written statement (which need not
comply with Section 102 and need not be accompanied by
an Officer's Certificate and an Opinion of Counsel)
stating that such Security has never been issued and
sold by the Company, for all purposes of this Indenture
such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never
be entitled to the benefits hereof.
SECTION 304. Temporary Securities.
Pending the preparation of definitive
Securities of any series, or any Tranche thereof, the
Company may execute, and upon Company Order the Trustee
shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the defi
nitive Securities in lieu of which they are issued,
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; provided,
however, that temporary Securities need not recite
specific redemption, sinking fund, conversion or
exchange provisions.
Unless otherwise specified as contemplated by
Section 301 with respect to the Securities of any
series, or any Tranche thereof, after the preparation
of definitive Securities of such series or Tranche, the
temporary Securities of such series or Tranche shall be
exchangeable, without charge to the Holder thereof, for
definitive Securities of such series or Tranche upon
surrender of such temporary Securities at the office or
agency of the Company maintained pursuant to Section
602 in a Place of Payment for such Securities. Upon
such surrender of temporary Securities, the Company
shall, except as aforesaid, execute and the Trustee
shall authenticate and deliver in exchange therefor
definitive Securities of the same series and Tranche,
of authorized denominations and of like tenor and
aggregate principal amount.
Until exchanged in full as hereinabove
provided, temporary Securities shall in all respects be
entitled to the same benefits under this Indenture as
definitive Securities of the same series and Tranche
and of like tenor authenticated and delivered here
under.
SECTION 305. Registration, Registration of Transfer
and Exchange.
The Company shall cause to be kept in each
office designated pursuant to Section 602, with respect
to the Securities of each series or any Tranche
thereof, a register (all registers kept in accordance
with this Section being 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 of
such series or Tranche and the registration of transfer
thereof. The Company shall designate one Person to
maintain the Security Register for the Securities of
each series on a consolidated basis, and such Person is
referred to herein, with respect to such series, as the
"Security Registrar." Anything herein to the contrary
notwithstanding, the Company may designate one or more
of its offices as an office in which a register with
respect to the Securities of one or more series, or any
Tranche or Tranches thereof, shall be maintained, and
the Company may designate itself the Security Registrar
with respect to one or more of such series. The
Security Register shall be open for inspection by the
Trustee and the Company at all reasonable times.
Except as otherwise specified as contemplated
by Section 301 with respect to the Securities of any
series, or any Tranche thereof, upon surrender for
registration of transfer of any Security of such series
or Tranche at the office or agency of the Company
maintained pursuant to Section 602 in a Place of
Payment for such series or Tranche, the Company shall
execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or
transferees, one or more new Securities of the same
series and Tranche, of authorized denominations and of
like tenor and aggregate principal amount.
Except as otherwise specified as contemplated
by Section 301 with respect to the Securities of any
series, or any Tranche thereof, any Security of such
series or Tranche may be exchanged at the option of the
Holder, for one or more new Securities of the same
series and Tranche, of authorized denominations and of
like tenor and aggregate principal amount, upon surren
der of the Securities to be exchanged at any such
office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute,
and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is
entitled to receive.
All Securities delivered upon any
registration of transfer or exchange of Securities
shall be 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, the Trustee or the Security
Registrar) be duly endorsed or shall be accompanied by
a written instrument of transfer in form satisfactory
to the Company, the Trustee or the Security Registrar,
as the case may be, duly executed by the Holder thereof
or his attorney duly authorized in writing.
Unless otherwise specified as contemplated by
Section 301 with respect to Securities of any series,
or any Tranche thereof, 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 regis
tration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 406 or 1206 not
involving any transfer.
The Company shall not be required to execute
or to provide for the registration of transfer of or
the exchange of (a) Securities of any series, or any
Tranche thereof, during a period of 15 days immediately
preceding the date notice is to be given identifying
the serial numbers of the Securities of such series or
Tranche called for redemption or (b) any Security so
selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in
part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities.
If any mutilated Security is surrendered to
the Trustee, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a
new Security of the same series and Tranche, and of
like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company
and the Trustee (a) evidence to their satisfaction of
the ownership of and the destruction, loss or theft of
any Security and (b) such security or indemnity as may
be reasonably 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 is held by a Person purporting to be the
owner of such Security, the Company shall execute and
the Trustee shall authenticate and deliver, in lieu of
any such destroyed, lost or stolen Security, a new
Security of the same series and Tranche, and of like
tenor and principal amount and bearing a number not
contemporaneously outstanding.
Notwithstanding the foregoing, 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 reasonable expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Security of any series issued
pursuant to this Section in lieu of any destroyed, lost
or stolen Security shall constitute an original
additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security
shall be at any time enforceable by anyone other than
the Holder of such new Security, and any such new
Security shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all
other Securities of such series duly issued hereunder.
The provisions of this Section are exclusive
and shall preclude (to the extent lawful) all other
rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen
Securities.
SECTION 307. Payment of Interest; Interest Rights
Preserved.
Unless otherwise specified as contemplated by
Section 301 with respect to the Securities of any
series, or any Tranche thereof, 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.
Subject to Section 312, 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
related 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 (a) or (b) below:
(a) The Company may elect to make payment of
any Defaulted Interest to the Persons in whose
names the Securities of such series (or their
respective Predecessor Securities) are registered
at the close of business on a date (herein called
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 promptly cause notice of the
proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of
Securities of such series at the address of such
Holder as it appears in the Security Register, not
less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose
names the Securities of such series (or their
respective Predecessor Securities) are registered
at the close of business on such Special Record
Date.
(b) The Company may make payment of any
Defaulted Interest on the Securities of any series
in any other lawful manner not inconsistent with
the requirements of any securities exchange on
which such Securities may be listed, and upon such
notice as may be required by such exchange, if,
after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable
by the Trustee.
Subject to the foregoing provisions of this
Section and Section 305, 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.
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 absolute owner
of such Security for the purpose of receiving payment
of principal of and premium, if any, and (subject to
Sections 305 and 307) interest, if any, on such
Security and for all other purposes whatsoever, whether
or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the
contrary.
SECTION 309. Cancellation by Security Registrar.
All Securities surrendered for payment, re
demption, registration of transfer or exchange shall,
if surrendered to any Person other than the Security
Registrar, be delivered to the Security Registrar and,
if not theretofore canceled, shall be promptly canceled
by the Security Registrar. The Company may at any time
deliver to the Security Registrar for cancellation any
Securities previously authenticated and delivered
hereunder which the Company may have acquired in any
manner whatsoever or which the Company shall not have
issued and sold, and all Securities so delivered shall
be promptly canceled by the Security Registrar. No
Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in
this Section, except as expressly permitted by this
Indenture. All canceled Securities held by the
Security Registrar shall be disposed of in accordance
with a Company Order delivered to the Security
Registrar and the Trustee, and the Security Registrar
shall promptly deliver a certificate of disposition to
the Trustee and the Company unless, by a Company Order,
similarly delivered, the Company shall direct that
canceled Securities be returned to it. The Security
Registrar shall promptly deliver evidence of any
cancellation of a Security in accordance with this
Section 309 to the Trustee and the Company.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated
by Section 301 for Securities of any series, or any
Tranche thereof, interest on the Securities of each
series shall be computed on the basis of a 360-day year
consisting of twelve 30-day months and on the basis of
the actual number of days elapsed within any month in
relation to the deemed 30 days of such month.
SECTION 311. Payment to Be in Proper Currency.
In the case of the Securities of any series,
or any Tranche thereof, denominated in any currency
other than Dollars or in a composite currency (the "Re
quired Currency"), except as otherwise specified with
respect to such Securities as contemplated by Section
301, the obligation of the Company to make any payment
of the principal thereof, or the premium, if any, or
interest, if any, thereon, shall not be discharged or
satisfied by any tender by the Company, or recovery by
the Trustee, in any currency other than the Required
Currency, except to the extent that such tender or
recovery shall result in the Trustee timely holding the
full amount of the Required Currency then due and
payable. If any such tender or recovery is in a
currency other than the Required Currency, the Trustee
may take such actions as it considers appropriate to
exchange such currency for the Required Currency. The
costs and risks of any such exchange, including without
limitation the risks of delay and exchange rate fluctua
tion, shall be borne by the Company, the Company shall
remain fully liable for any shortfall or delinquency in
the full amount of Required Currency then due and
payable, and in no circumstances shall the Trustee be
liable therefor except in the case of its negligence or
willful misconduct.
SECTION 312. Extension of Interest Payment.
The Company shall have the right at any time, so
long as the Company is not in default in the payment of
interest on the Securities of any series hereunder, to
extend interest payment periods on all Securities of
one or more series, or Tranches thereof, if so
specified as contemplated by Section 301 with respect
to such Securities and upon such terms as may be
specified as contemplated by Section 301 with respect
to such Securities.
ARTICLE FOUR
Redemption of Securities
SECTION 401. Applicability of Article.
Securities of any series, or any Tranche
thereof, which are redeemable before their Stated
Maturity shall be redeemable in accordance with their
terms and (except as otherwise specified as con
templated by Section 301 for Securities of such series
or Tranche) in accordance with this Article.
SECTION 402. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any
Securities shall be evidenced by a Board Resolution or
an Officer's Certificate. The Company shall, at least
45 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory
to the Trustee), notify the Trustee in writing of such
Redemption Date and of the principal amount of such
Securities to be redeemed. In the case of any
redemption of Securities (a) prior to the expiration of
any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture
or (b) pursuant to an election of the Company which is
subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with
an Officer's Certificate evidencing compliance with
such restriction or condition.
SECTION 403. Selection of Securities to Be Redeemed.
If less than all the Securities of any
series, or any Tranche thereof, are to be redeemed, the
particular Securities to be redeemed shall be selected
by the Security Registrar from the Outstanding
Securities of such series or Tranche not previously
called for redemption, by such method as shall be
provided for any particular series or Tranche, or, in
the absence of any such provision, by such method of
random selection as the Security Registrar shall deem
fair and appropriate and which may, in any case,
provide for the selection for redemption of portions
(equal to the minimum authorized denomination for
Securities of such series or Tranche or any integral
multiple thereof) of the principal amount of Securities
of such series or Tranche of a denomination larger than
the minimum authorized denomination for Securities of
such series or Tranche; provided, however, that if, as
indicated in an Officer's Certificate, the Company
shall have offered to purchase all or any principal
amount of the Securities then Outstanding of any
series, or any Tranche thereof, and less than all of
such Securities as to which such offer was made shall
have been tendered to the Company for such purchase,
the Security Registrar, if so directed by Company
Order, shall select for redemption all or any principal
amount of such Securities which have not been so
tendered.
The Security Registrar shall promptly notify
the Company and the Trustee in writing of the
Securities selected for redemption and, in the case of
any Securities selected to be redeemed in part, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless
the context otherwise requires, all provisions relating
to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only
in part, to the portion of the principal amount of such
Securities which has been or is to be redeemed.
SECTION 404. Notice of Redemption.
Notice of redemption shall be given in the
manner provided in Section 106 to the Holders of the
Securities to be redeemed not less than 30 nor more
than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of
any series or Tranche are to be redeemed, the
identification of the particular Securities to be
redeemed and the portion of the principal amount
of any Security to be redeemed in part,
(d) that on the Redemption Date the
Redemption Price, together with accrued interest,
if any, to the Redemption Date, 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,
(e) the place or places where such
Securities are to be surrendered for payment of
the Redemption Price and accrued interest, if any,
unless it shall have been specified as
contemplated by Section 301 with respect to such
Securities that such surrender shall not be
required,
(f) that the redemption is for a
sinking or other fund, if such is the case, and
(g) such other matters as the Company
shall deem desirable or appropriate.
Unless otherwise specified with respect to
any Securities in accordance with Section 301, with
respect to any notice of redemption of Securities at
the election of the Company, unless, upon the giving of
such notice, such Securities shall be deemed to have
been paid in accordance with Section 701, such notice
may state that such redemption shall be conditional
upon the receipt by the Paying Agent or Agents for such
Securities, on or prior to the date fixed for such
redemption, of money sufficient to pay the principal of
and premium, if any, and interest, if any, on such
Securities and that if such money shall not have been
so received such notice shall be of no force or effect
and the Company shall not be required to redeem such
Securities. In the event that such notice of
redemption contains such a condition and such money is
not so received, the redemption shall not be made and
within a reasonable time thereafter notice shall be
given, in the manner in which the notice of redemption
was given, that such money was not so received and such
redemption was not required to be made, and the Paying
Agent or Agents for the Securities otherwise to have
been redeemed shall promptly return to the Holders
thereof any of such Securities which had been
surrendered for payment upon such redemption.
Notice of redemption of Securities to be
redeemed at the election of the Company, and any notice
of non-satisfaction of a condition for redemption as
aforesaid, shall be given by the Company or, at the
Company's request, by the Security Registrar in the
name and at the expense of the Company. Notice of
mandatory redemption of Securities shall be given by
the Security Registrar in the name and at the expense
of the Company.
SECTION 405. Securities Payable on Redemption Date.
Notice of redemption having been given as
aforesaid, and the conditions, if any, set forth in
such notice having been satisfied, the Securities or
portions thereof 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, in the case of an unconditional
notice of redemption, the Company shall default in the
payment of the Redemption Price and accrued interest,
if any) such Securities or portions thereof, if
interest-bearing, shall cease to bear interest. Upon
surrender of any such Security for redemption in
accordance with such notice, such Security or portion
thereof shall be paid by the Company at the Redemption
Price, together with accrued interest, if any, to the
Redemption Date; provided, however, that no such
surrender shall be a condition to such payment if so
specified as contemplated by Section 301 with respect
to such Security; and provided, further, that except as
otherwise specified as contemplated by Section 301 with
respect to such Security, any installment of interest
on any Security the Stated Maturity of which
installment is on or prior to the Redemption Date shall
be payable to the Holder of such Security, or one or
more Predecessor Securities, registered as such at the
close of business on the related Regular Record Date
according to the terms of such Security and subject to
the provisions of Section 307.
SECTION 406. Securities Redeemed in Part.
Upon the surrender of any Security which is
to be redeemed only in part 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), the Company shall
execute, and the Trustee shall authenticate and deliver
to the Holder of such Security, without service charge,
a new Security or Securities of the same series and
Tranche, of any authorized denomination requested by
such Holder and of like tenor and in aggregate
principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so
surrendered.
ARTICLE FIVE
Sinking Funds
SECTION 501. Applicability of Article.
The provisions of this Article shall be
applicable to any sinking fund for the retirement of
the Securities of any series, or any Tranche thereof,
except as otherwise specified as contemplated by
Section 301 for Securities of such series or Tranche.
The minimum amount of any sinking fund
payment provided for by the terms of Securities of any
series, or any Tranche thereof, is herein referred to
as a "mandatory sinking fund payment", and any payment
in excess of such minimum amount provided for by the
terms of Securities of any series, or any Tranche
thereof, is herein referred to as an "optional sinking
fund payment". If provided for by the terms of
Securities of any series, or any Tranche thereof, the
cash amount of any sinking fund payment may be subject
to reduction as provided in Section 502. Each sinking
fund payment shall be applied to the redemption of
Securities of the series or Tranche in respect of which
it was made as provided for by the terms of such
Securities.
SECTION 502. Satisfaction of Sinking Fund Payments
with Securities.
The Company (a) may deliver to the Trustee
Outstanding Securities (other than any previously
called for redemption) of a series or Tranche in
respect of which a mandatory sinking fund payment is to
be made and (b) may apply as a credit Securities of
such series or Tranche which have been (1) 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 or (2) repurchased by the
Company in the open market, by tender offer or
otherwise, in each case in satisfaction of all or any
part of such mandatory sinking fund payment; provided,
however, that no Securities shall be applied in
satisfaction of a mandatory sinking fund payment if
such Securities shall have been previously so applied.
Securities so applied shall be received and credited
for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through
operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced
accordingly.
SECTION 503. Redemption of Securities for Sinking
Fund.
Not less than 45 days prior to each sinking
fund payment date for the Securities of any series, or
any Tranche thereof, the Company shall deliver to the
Trustee an Officer's Certificate specifying:
(a) the amount of the next succeeding
mandatory sinking fund payment for such series or
Tranche;
(b) the amount, if any, of the optional
sinking fund payment to be made together with such
mandatory sinking fund payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such
aggregate sinking fund payment which is to be
satisfied by the payment of cash;
(e) the portion, if any, of such
aggregate sinking fund payment which is to be
satisfied by delivering and crediting Securities
of such series or Tranche pursuant to Section 502
and stating the basis for such credit and that
such Securities have not previously been so
credited, and the Company shall also deliver to
the Trustee any Securities to be so delivered. If
the Company shall not deliver such Officer's
Certificate, the next succeeding sinking fund
payment for such series or Tranche shall be made
entirely in cash in the amount of the mandatory
sinking fund payment. Not less than 40 days
before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner
specified in Section 403 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 404. Such notice having been
duly given, the redemption of such Securities
shall be made upon the terms and in the manner
stated in Sections 405 and 406.
ARTICLE SIX
Covenants
SECTION 601. Payment of Principal, Premium and
Interest.
The Company shall pay the principal of and
premium, if any, and interest, if any, on the
Securities of each series in accordance with the terms
of such Securities and this Indenture.
SECTION 602. Maintenance of Office or Agency.
The Company shall maintain in each Place of
Payment for the Securities of each series, or any
Tranche thereof, an office or agency where payment of
such Securities shall be made, where the registration
of transfer or exchange of such Securities may be
effected and where notices and demands to or upon the
Company in respect of such Securities and this
Indenture may be served. The Company shall give prompt
written notice to the Trustee of the location, and any
change in the location, of each such office or agency
and prompt notice to the Holders of any such change in
the manner specified in Section 106. If at any time
the Company shall fail to maintain any such required
office or agency in respect of Securities of any
series, or any Tranche thereof, or shall fail to
furnish the Trustee with the address thereof, payment
of such Securities shall be made, registration of
transfer or exchange thereof may be effected and
notices and demands in respect thereof may be served at
the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent for
all such purposes in any such event.
The Company may also from time to time
designate one or more other offices or agencies with
respect to the Securities of one or more series, or any
Tranche thereof, for any or all of the foregoing
purposes and may from time to time rescind such
designations; provided, however, that, unless otherwise
specified as contemplated by Section 301 with respect
to the Securities of such series or Tranche, no such
designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or
agency for such purposes in each Place of Payment for
such Securities in accordance with the requirements set
forth above. The Company shall give prompt written
notice to the Trustee, and prompt notice to the Holders
in the manner specified in Section 106, of any such
designation or rescission and of any change in the
location of any such other office or agency.
Anything herein to the contrary
notwithstanding, any office or agency required by this
Section may be maintained at an office of the Company,
in which event the Company shall perform all functions
to be performed at such office or agency.
SECTION 603. 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 the Securities of any
series, or any Tranche thereof, it shall, on or before
each due date of the principal of and premium, if any,
and interest, if any, on any of such Securities,
segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the
principal and premium or interest so becoming due until
such sums shall be paid to such Persons or otherwise
disposed of as herein provided. The Company shall
promptly notify the Trustee of any failure by the
Company (or any other obligor on such Securities) to
make any payment of principal of or premium, if any, or
interest, if any, on such Securities.
Whenever the Company shall have one or more
Paying Agents for the Securities of any series, or any
Tranche thereof, it shall, on or before each due date
of the principal of and premium, if any, and interest,
if any, on such Securities, deposit with such Paying
Agents sums sufficient (without duplication) to pay the
principal and premium or interest so becoming due, such
sums to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company
shall promptly notify the Trustee of any failure by it
so to act.
The Company shall cause each Paying Agent for
the Securities of any series, or any Tranche thereof,
other than the Company or 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
shall:
(a) hold all sums held by it for the
payment of the principal of and premium, if any,
or interest, if any, on such Securities in trust
for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any
failure by the Company (or any other obligor upon
such Securities) to make any payment of principal
of or premium, if any, or interest, if any, on
such Securities; and
(c) at any time during the continuance
of any such failure, upon the written request of
the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent and furnish
to the Trustee such information as it possesses
regarding the names and addresses of the Persons
entitled to such sums.
The Company may at any time 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, if so stated
in a Company Order delivered to the Trustee, in
accordance with the provisions of Article Seven; and,
upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any
Paying Agent, or then held by the Company, in trust for
the payment of the principal of and premium, if any, or
interest, if any, on any Security and remaining
unclaimed for two years after such principal and
premium, if any, or interest, if any, has become due
and payable shall be paid to the Company on Company
Request, or, if then held by the Company, shall be
discharged from such trust; and, upon such payment or
discharge, the Holder of such Security shall, as an
unsecured general creditor and not as a Holder of an
Outstanding Security, look only to the Company for
payment of the amount so due and payable and remaining
unpaid, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any
such payment to the Company, may at the expense of the
Company cause to be mailed, on one occasion only,
notice to such Holder that such money remains unclaimed
and that, after a date specified therein, which shall
not be less than 30 days from the date of such mailing,
any unclaimed balance of such money then remaining will
be paid to the Company.
SECTION 604. Corporate Existence.
Subject to the rights of the Company under
Article Eleven, the Company shall do or cause to be
done all things necessary to preserve and keep in full
force and effect its corporate existence.
SECTION 605. Maintenance of Properties.
The Company shall cause (or, with respect to
property owned in common with others, make reasonable
effort to cause) all its properties used or useful in
the conduct of its business to be maintained and kept
in good condition, repair and working order and shall
cause (or, with respect to property owned in common
with others, make reasonable effort to cause) to be
made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as, in the
judgment of the Company, may be necessary so that the
business carried on in connection therewith may be
properly conducted; provided, however, that nothing in
this Section shall prevent the Company from
discontinuing, or causing the discontinuance of, the
operation and maintenance of any of its properties if
such discontinuance is, in the judgment of the Company,
desirable in the conduct of its business.
SECTION 606. Annual Officer's Certificate as to
Compliance.
Not later than October 1 in each year,
commencing October 1, 1996, the Company shall deliver
to the Trustee an Officer's Certificate which need not
comply with Section 102, executed by the principal
executive officer, the principal financial officer or
the principal accounting officer of the Company, as to
such officer's knowledge of the Company's compliance
with all conditions and covenants under this Indenture,
such compliance to be determined without regard to any
period of grace or requirement of notice under this
Indenture.
SECTION 607. Waiver of Certain Covenants.
The Company may omit in any particular
instance to comply with any term, provision or
condition set forth in (a) Section 602 or any
additional covenant or restriction specified with
respect to the Securities of any series, or any Tranche
thereof, as contemplated by Section 301 if before the
time for such compliance the Holders of at least a
majority in aggregate principal amount of the
Outstanding Securities of all series and Tranches with
respect to which compliance with Section 602 or such
additional covenant or restriction is to be omitted,
considered as one class, shall, by Act of such Holders,
either waive such compliance in such instance or
generally waive compliance with such term, provision or
condition and (b) Section 604, 605 or Article Eleven if
before the time for such compliance the Holders of at
least a majority in principal amount of Securities
Outstanding under this Indenture shall, by Act of such
Holders, either waive such compliance in such instance
or generally waive compliance with such term, provision
or condition; but, in the case of (a) or (b), no such
waiver shall extend to or affect such term, provision
or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the
obligations of the Company and the duties of the
Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
ARTICLE SEVEN
Satisfaction and Discharge
SECTION 701. Satisfaction and Discharge of Securities.
Any Security or Securities, or any portion of
the principal amount thereof, shall be deemed to have
been paid for all purposes of this Indenture, and the
entire indebtedness of the Company in respect thereof
shall be deemed to have been satisfied and discharged,
if there shall have been irrevocably deposited with the
Trustee or any Paying Agent (other than the Company),
in trust:
(a) money in an amount which shall be
sufficient, or
(b) in the case of a deposit made prior
to the Maturity of such Securities or portions
thereof, Eligible Obligations, which shall not
contain provisions permitting the redemption or
other prepayment thereof at the option of the
issuer thereof, the principal of and the interest
on which when due, without any regard to
reinvestment thereof, will provide moneys which,
together with the money, if any, deposited with or
held by the Trustee or such Paying Agent, shall be
sufficient, or
(c) a combination of (a) or (b) which
shall be sufficient,
to pay when due the principal of and premium, if any,
and interest, if any, due and to become due on such
Securities or portions thereof on or prior to Maturity;
provided, however, that in the case of the provision
for payment or redemption of less than all the
Securities of any series or Tranche, such Securities or
portions thereof shall have been selected by the
Security Registrar as provided herein and, in the case
of a redemption, the notice requisite to the validity
of such redemption shall have been given or irrevocable
authority shall have been given by the Company to the
Trustee to give such notice, under arrangements
satisfactory to the Trustee; and provided, further,
that the Company shall have delivered to the Trustee
and such Paying Agent:
(x) if such deposit shall have been made
prior to the Maturity of such Securities, a
Company Order stating that the money and Eligible
Obligations deposited in accordance with this
Section shall be held in trust, as provided in
Section 703;
(y) if Eligible Obligations shall have been
deposited, an Opinion of Counsel that the
obligations so deposited constitute Eligible
Obligations and do not contain provisions
permitting the redemption or other prepayment at
the option of the issuer thereof, and an opinion
of an independent public accountant of nationally
recognized standing, selected by the Company, to
the effect that the requirements set forth in
clause (b) above have been satisfied; and
(z) if such deposit shall have been made
prior to the Maturity of such Securities, an
Officer's Certificate stating the Company's
intention that, upon delivery of such Officer's
Certificate, its indebtedness in respect of such
Securities or portions thereof will have been
satisfied and discharged as contemplated in this
Section.
Upon the deposit of money or Eligible Obli
gations, or both, in accordance with this Section,
together with the documents required by clauses (x),
(y) and (z) above, the Trustee shall, upon receipt of a
Company Request, acknowledge in writing that the
Security or Securities or portions thereof with respect
to which such deposit was made are deemed to have been
paid for all purposes of this Indenture and that the
entire indebtedness of the Company in respect thereof
has been satisfied and discharged as contemplated in
this Section. In the event that all of the conditions
set forth in the preceding paragraph shall have been
satisfied in respect of any Securities or portions
thereof except that, for any reason, the Officer's
Certificate specified in clause (z) shall not have been
delivered, such Securities or portions thereof shall
nevertheless be deemed to have been paid for all
purposes of this Indenture, and the Holders of such
Securities or portions thereof shall nevertheless be no
longer entitled to the benefits of this Indenture or of
any of the covenants of the Company under Article Six
(except the covenants contained in Sections 602, 603
and 604) or any other covenants made in respect of such
Securities or portions thereof as contemplated by
Section 301, but the indebtedness of the Company in
respect of such Securities or portions thereof shall
not be deemed to have been satisfied and discharged
prior to Maturity for any other purpose, and the
Holders of such Securities or portions thereof shall
continue to be entitled to look to the Company for
payment of the indebtedness represented thereby; and,
upon Company Request, the Trustee shall acknowledge in
writing that such Securities or portions thereof are
deemed to have been paid for all purposes of this
Indenture.
If payment at Stated Maturity of less than
all of the Securities of any series, or any Tranche
thereof, is to be provided for in the manner and with
the effect provided in this Section, the Security
Registrar shall select such Securities, or portions of
principal amount thereof, in the manner specified by
Section 403 for selection for redemption of less than
all the Securities of a series or Tranche.
In the event that Securities which shall be
deemed to have been paid for purposes of this
Indenture, and, if such is the case, in respect of
which the Company's indebtedness shall have been
satisfied and discharged, all as provided in this
Section do not mature and are not to be redeemed within
the sixty (60) day period commencing with the date of
the deposit of moneys or Eligible Obligations, as
aforesaid, the Company shall, as promptly as
practicable, give a notice, in the same manner as a
notice of redemption with respect to such Securities,
to the Holders of such Securities to the effect that
such deposit has been made and the effect thereof.
Notwithstanding that any Securities shall be
deemed to have been paid for purposes of this
Indenture, as aforesaid, the obligations of the Company
and the Trustee in respect of such Securities under
Sections 304, 305, 306, 403, 404, 406, 503 (as to
notice of redemption), 602, 603, 907, 909, 910 and 915
and this Article Seven shall survive.
The Company shall pay, and shall indemnify
the Trustee or any Paying Agent with which Eligible
Obligations shall have been deposited as provided in
this Section against, any tax, fee or other charge
imposed on or assessed against such Eligible
Obligations or the principal or interest received in
respect of such Eligible Obligations, including, but
not limited to, any such tax payable by any entity
deemed, for tax purposes, to have been created as a
result of such deposit.
Anything herein to the contrary
notwithstanding, (a) if, at any time after a Security
would be deemed to have been paid for purposes of this
Indenture, and, if such is the case, the Company's
indebtedness in respect thereof would be deemed to have
been satisfied or discharged, pursuant to this Section
(without regard to the provisions of this paragraph),
the Trustee or any Paying Agent, as the case may be,
shall be required to return the money or Eligible
Obligations, or combination thereof, deposited with it
as aforesaid to the Company or its representative under
any applicable Federal or State bankruptcy, insolvency
or other similar law, such Security shall thereupon be
deemed retroactively not to have been paid and any
satisfaction and discharge of the Company's
indebtedness in respect thereof shall retroactively be
deemed not to have been effected, and such Security
shall be deemed to remain Outstanding and (b) any
satisfaction and discharge of the Company's
indebtedness in respect of any Security shall be
subject to the provisions of the last paragraph of
Section 603.
SECTION 702. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request
cease to be of further effect (except as hereinafter
expressly provided), and the Trustee, at the expense of
the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this
Indenture, when
(a) no Securities remain Outstanding
hereunder; and
(b) the Company has paid or caused to be
paid all other sums payable hereunder by the
Company;
provided, however, that if, in accordance with the last
paragraph of Section 701, any Security, previously
deemed to have been paid for purposes of this
Indenture, shall be deemed retroactively not to have
been so paid, this Indenture shall thereupon be deemed
retroactively not to have been satisfied and
discharged, as aforesaid, and to remain in full force
and effect, and the Company shall execute and deliver
such instruments as the Trustee shall reasonably
request to evidence and acknowledge the same.
Notwithstanding the satisfaction and
discharge of this Indenture as aforesaid, the
obligations of the Company and the Trustee under Sec
tions 304, 305, 306, 403, 404, 406, 503 (as to notice
of redemption), 602, 603, 907, 909, 910 and 915 and
this Article Seven shall survive.
Upon satisfaction and discharge of this
Indenture as provided in this Section, the Trustee
shall assign, transfer and turn over to the Company,
subject to the lien provided by Section 907, any and
all money, securities and other property then held by
the Trustee for the benefit of the Holders of the
Securities other than money and Eligible Obligations
held by the Trustee pursuant to Section 703.
SECTION 703. Application of Trust Money.
Neither the Eligible Obligations nor the
money deposited pursuant to Section 701, nor the
principal or interest payments on any such Eligible
Obligations, shall be withdrawn or used for any purpose
other than, and such Eligible Obligations and money
deposited and the principal and interest payments on
any such Eligible Obligations shall be held in trust
for, the payment of the principal of and premium, if
any, and interest, if any, on the Securities or
portions of principal amount thereof in respect of
which such deposit was made, all subject, however, to
the provisions of Section 603; provided, however, that,
so long as there shall not have occurred and be
continuing an Event of Default, any cash received from
such principal or interest payments on such Eligible
Obligations, if not then needed for such purpose,
shall, to the extent practicable, be invested in
Eligible Obligations of the type described in clause
(b) in the first paragraph of Section 701 maturing at
such times and in such amounts as shall be sufficient
to pay when due the principal of and premium, if any,
and interest, if any, due and to become due on such
Securities or portions thereof on and prior to the
Maturity thereof, and interest earned from such
reinvestment shall be paid over to the Company as
received, free and clear of any trust, lien or pledge
under this Indenture except the lien provided by
Section 907; and provided, further, that, so long as
there shall not have occurred and be continuing an
Event of Default, any moneys held in accordance with
this Section on the Maturity of all such Securities in
excess of the amount required to pay the principal of
and premium, if any, and interest, if any, then due on
such Securities shall be paid over to the Company free
and clear of any trust, lien or pledge under this
Indenture except the lien provided by Section 907; and
provided, further, that if an Event of Default shall
have occurred and be continuing, moneys to be paid over
to the Company pursuant to this Section shall be held
until such Event of Default shall have been waived or
cured.
ARTICLE EIGHT
Events of Default; Remedies
SECTION 801. Events of Default.
"Event of Default", wherever used herein with
respect to Securities of any series, means any one of
the following events:
(a) failure to pay interest, if any, on
any Security of such series within sixty (60) days
after the same becomes due and payable (whether or
not payment is prohibited by the provisions of
Article Fifteen hereof); provided, however, that a
valid extension of the interest payment period by
the Company as contemplated in Section 312 of this
Indenture shall not constitute a failure to pay
interest for this purpose; or
(b) failure to pay the principal of or
premium, if any, on any Security of such series
within three (3) Business Days after its Maturity
(whether or not payment is prohibited by the
provisions of Article Fifteen hereof); or
(c) failure to perform, or breach of,
any covenant or warranty of the Company in this
Indenture (other than a covenant or warranty a
default in the performance of which or breach of
which is elsewhere in this Section specifically
dealt with or which has expressly been included in
this Indenture solely for the benefit of one or
more series of Securities other than such series)
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 33% in
principal amount of the Outstanding Securities of
such 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, unless the Trustee, or the
Trustee and the Holders of a principal amount of
Securities of such series not less than the
principal amount of Securities the Holders of
which gave such notice, as the case may be, shall
agree in writing to an extension of such period
prior to its expiration; provided, however, that
the Trustee, or the Trustee and the Holders of
such principal amount of Securities of such
series, as the case may be, shall be deemed to
have agreed to an extension of such period if
corrective action is initiated by the Company
within such period and is being diligently
pursued; or
(d) the entry by a court having
jurisdiction in the premises of (1) a decree or
order for relief in respect of the Company in an
involuntary case or proceeding under any appli
cable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (2) a
decree or order adjudging the Company a bankrupt
or insolvent, or approving as properly filed a
petition by one or more Persons other than the
Company seeking reorganization, arrangement,
adjustment or composition of or in respect of the
Company under any applicable Federal or State law,
or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar
official for the Company or for any substantial
part of its property, or ordering the winding up
or liquidation of its affairs, and any such decree
or order for relief or any such other decree or
order shall have remained unstayed and in effect
for a period of 90 consecutive days; or
(e) the commencement by the Company of
a voluntary case or proceeding under any
applicable Federal or State bankruptcy, insol
vency, 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 a case or proceeding under any
applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or
to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the
filing by it of a petition or answer or consent
seeking reorganization or relief under any
applicable Federal or State law, or the consent by
it to the filing of such petition or to the
appointment of or taking possession by a
custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official 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 authorization
of such action by the Board of Directors; or
(f) any other Event of Default
specified with respect to Securities of such
series.
SECTION 802. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default shall have occurred
and be continuing with respect to Securities of any
series at the time Outstanding, then in every such case
the Trustee or the Holders of not less than 33% in
principal amount of the Outstanding Securities of such
series may declare the principal amount (or, if any of
the Securities of such series are Discount Securities,
such portion of the principal amount of such Securities
as may be specified in the terms thereof as
contemplated by Section 301) of all of the Securities
of such series to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if
given by Holders), and upon receipt by the Company of
notice of such declaration such principal amount (or
specified amount) shall become immediately due and pay
able (provided that the payment of principal of such
Securities shall remain subordinated to the extent
provided in Article Fifteen hereof); provided, however,
that if an Event of Default shall have occurred and be
continuing with respect to more than one series of
Securities, the Trustee or the Holders of not less than
33% in aggregate principal amount of the Outstanding
Securities of all such series, considered as one class
(and not the Holders of the Securities of any one of
such series), may make such declaration of
acceleration.
At any time after such a declaration of
acceleration with respect to Securities of any series
shall have been made and before a judgment or decree
for payment of the money due shall have been obtained
by the Trustee as hereinafter in this Article provided,
the Event or Events of Default giving rise to such
declaration of acceleration shall, without further act,
be deemed to have been waived, and such declaration and
its consequences shall, without further act, be deemed
to have been rescinded and annulled, if
(a) the Company shall have paid or
deposited with the Trustee a sum sufficient to pay
(1) all overdue interest on all
Securities of such series;
(2) the principal of and premium,
if any, on any Securities of such series
which have become due otherwise than by such
declaration of acceleration and interest
thereon at the rate or rates prescribed
therefor in such Securities;
(3) to the extent that payment of
such interest is lawful, interest upon
overdue interest at the rate or rates
prescribed therefor in such Securities;
(4) all amounts due to the Trustee
under Section 907;
and
(b) any other Event or Events of Default
with respect to Securities of such series, other
than the non-payment of the principal of
Securities of such series which shall have become
due solely by such declaration of acceleration,
shall have been cured or waived as provided in
Section 813.
No such rescission shall affect any subsequent Event of
Default or impair any right consequent thereon.
SECTION 803. Collection of Indebtedness and Suits for
Enforcement by Trustee.
If an Event of Default described in clause
(a) or (b) of Section 801 shall have occurred and be
continuing, the Company shall, upon demand of the
Trustee, pay to it, for the benefit of the Holders of
the Securities of the series with respect to which such
Event of Default shall have occurred, the whole amount
then due and payable on such Securities for principal
and premium, if any, and interest, if any, and, to the
extent permitted by law, interest on premium, if any,
and on any overdue principal and interest, at the rate
or rates prescribed therefor in such Securities, and,
in addition thereto, such further amount as shall be
sufficient to cover any amounts due to the Trustee
under Section 907.
If the Company shall fail to pay such amounts
forthwith upon such demand, the Trustee, in its own
name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sums so
due and unpaid, may prosecute such proceeding to
judgment or final decree and may enforce the same
against the Company or any other obligor upon such
Securities and collect the moneys adjudged or decreed
to be payable in the manner provided by law out of the
property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to
Securities of any series shall have occurred and be
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 804. Trustee May File Proofs of Claim.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor
upon the Securities or the property of the Company or
of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the
Securities shall then be due and payable as therein
expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any
demand on the Company for the payment of overdue
principal or interest) shall be entitled and empowered,
by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the
whole amount of principal, premium, if any, and
interest, if any, owing and unpaid in respect of
the Securities and to file such other papers or
documents as may be necessary or advisable in
order to have the claims of the Trustee (including
any claim for amounts due to the Trustee under
Section 907) and of the Holders allowed in such
judicial proceeding, and
(b) 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 amounts due it under Section 907.
Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder
thereof or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
SECTION 805. Trustee May Enforce Claims Without
Possession of Securities.
All rights of action and claims under this
Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any
of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery
of judgment shall, after provision for the payment of
the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders in respect of
which such judgment has been recovered.
SECTION 806. Application of Money Collected.
Subject to the provisions of Article Fifteen,
any money collected by the Trustee pursuant to this
Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal or
premium, if any, or interest, if any, upon presentation
of the Securities in respect of which or for the
benefit of which such money shall have been collected
and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully
paid:
First: To the payment of all amounts due the
Trustee under Section 907;
Second: To the payment of the amounts then
due and unpaid upon the Securities for principal
of and premium, if any, and interest, if any, 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, premium, if any, and interest, if any,
respectively; and
Third: To the Company.
SECTION 807. Limitation on Suits.
No Holder 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:
(a) such Holder shall have previously
given written notice to the Trustee of a
continuing Event of Default with respect to the
Securities of such series;
(b) the Holders of not less than a
majority in aggregate principal amount of the
Outstanding Securities of all series in respect of
which an Event of Default shall have occurred and
be continuing, considered as one class, shall have
made written request to the Trustee to institute
proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(c) such Holder or Holders shall have
offered to the Trustee reasonable indemnity
against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its
receipt of such notice, request and offer of
indemnity shall have failed to institute any such
proceeding; and
(e) no direction inconsistent with such
written request shall have been given to the
Trustee during such 60-day period by the Holders
of a majority in aggregate principal amount of the
Outstanding Securities of all series in respect of
which an Event of Default shall have occurred and
be continuing, considered as one class;
it being understood and intended that no one or more of
such Holders shall have any right in any manner
whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the
rights of any other of such Holders or to obtain or to
seek to obtain priority or preference over any other of
such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for
the equal and ratable benefit of all of such Holders.
SECTION 808. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the
right, which is absolute and unconditional, to receive
payment of the principal of and premium, if any, and
(subject to Section 307 and 312) interest, if any, on
such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemp
tion, 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 809. 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 shall have been
discontinued or abandoned for any reason, or shall have
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, and
Trustee and such Holder shall be restored severally and
respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and
such Holder shall continue as though no such proceeding
had been instituted.
SECTION 810. Rights and Remedies Cumulative.
Except as otherwise provided 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 here
under, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right
or remedy.
SECTION 811. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any
Holder to exercise any right or remedy accruing upon
any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee
or by the Holders, as the case may be.
SECTION 812. Control by Holders of Securities.
If an Event of Default shall have occurred
and be continuing in respect of a series of Securities,
the Holders of a majority in principal amount of the
Outstanding Securities of such series shall have the
right to direct the time, method and place of
conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred
on the Trustee, with respect to the Securities of such
series; provided, however, that if an Event of Default
shall have occurred and be continuing with respect to
more than one series of Securities, the Holders of a
majority in aggregate principal amount of the
Outstanding Securities of all such series, considered
as one class, shall have the right to make such
direction, and not the Holders of the Securities of any
one of such series; and provided, further, that
(a) such direction shall not be in
conflict with any rule of law or with this
Indenture, and could not involve the Trustee in
personal liability in circumstances where
indemnity would not, in the Trustee's sole
discretion, be adequate, and
(b) the Trustee may take any other
action deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION 813. 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
(a) in the payment of the principal of
or premium, if any, or interest, if any, on any
Security of such series, or
(b) in respect of a covenant or
provision hereof which under Section 1202 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 and all Events 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 814. Undertaking for Costs.
The Company and the Trustee agree, and each
Holder by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right
or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted
by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due
regard to the merits and good faith of the claims or
defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit
instituted by the Company, to any suit instituted by
the Trustee, to any suit instituted by any Holder, or
group of Holders, holding in the aggregate more than
10% in aggregate principal amount of the Outstanding
Securities of all series in respect of which such suit
may be brought, considered as one class, or to any suit
instituted by any Holder for the enforcement of the
payment of the principal of or premium, if any, or
interest, if any, on any Security on or after the
Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on or after
the Redemption Date).
SECTION 815. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it
may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the
performance of this Indenture; and the Company (to the
extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee,
but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE NINE
The Trustee
SECTION 901. Certain Duties and Responsibilities.
(a) Except during the continuance of an
Event of Default with respect to Securities of any
series,
(1) the Trustee undertakes to
perform, with respect to Securities of such
series, such duties and only such duties as
are specifically set forth in this Indenture,
and no implied covenants or obligations shall
be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on
its part, the Trustee may, with respect to
Securities of such series, conclusively rely,
as to the truth of the statements and the
correctness of the opinions expressed
therein, upon certificates or opinions
furnished to the Trustee and conforming to
the requirements of this Indenture; but in
the case of any such certificates or opinions
which by any provision hereof are
specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not
they conform to the requirements of this
Indenture.
(b) In case an Event of Default with respect
to Securities of any series shall have occurred
and be continuing, the Trustee shall exercise,
with respect to Securities of such series, such of
the rights and powers vested in it by this
Indenture, and use the same degree of care and
skill in their exercise, as a prudent man would
exercise or use under the circumstances in the
conduct of his own affairs.
(c) No provision of this Indenture shall be
construed to relieve the Trustee from liability
for its own negligent action, its own negligent
failure to act, or its own willful misconduct,
except that
(1) this clause (c) shall not be
construed to limit the effect of clause (a)
of this Section;
(2) the Trustee shall not be
liable for any error of judgment made in good
faith by a Responsible Officer, unless it
shall be proved that the Trustee was
negligent in ascertaining the pertinent
facts;
(3) the Trustee shall not be
liable with respect to any action taken or
omitted to be taken by it in good faith in
accordance with the direction of the Holders
of a majority in principal amount of the
Outstanding Securities of any one or more
series, as provided herein, relating to the
time, method and place of conducting any
proceeding for any remedy available to the
Trustee, or exercising any trust or power
conferred upon the Trustee, under this
Indenture with respect to the Securities of
such series; and
(4) no provision of this Indenture
shall require the Trustee to expend or risk
its own funds or otherwise incur any
financial liability in the performance of any
of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall
have reasonable grounds for believing that
repayment of such funds or adequate indemnity
against such risk or liability is not
reasonably assured to it.
(d) Whether or not therein expressly so
provided, every provision of this Indenture
relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 902. Notice of Defaults.
The Trustee shall give notice of any default
hereunder with respect to the Securities of any series
to the Holders of Securities of such series in the
manner and to the extent required to do so by the Trust
Indenture Act, unless such default shall have been
cured or waived; provided, however, that in the case of
any default of the character specified in clause (c) of
Section 801, no such notice to Holders shall be given
until at least 75 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.
SECTION 903. Certain Rights of Trustee.
Subject to the provisions of Section 901 and
to the applicable provisions of the Trust Indenture
Act:
(a) the Trustee may rely and shall be
protected in acting or refraining from acting upon
any resolution, certificate, statement,
instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or
document believed by it to be genuine and to have
been signed or presented by the proper party or
parties;
(b) any request or direction of the Company
mentioned herein shall be sufficiently evidenced
by a Company Request or Company Order, or as
otherwise expressly provided herein, and any
resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this
Indenture the Trustee shall deem it desirable that
a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officer's
Certificate;
(d) the Trustee may consult with counsel and
the written advice of such counsel or any Opinion
of Counsel shall be full and complete
authorization and protection in respect of any
action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation
to exercise any of the rights or powers vested in
it by this Indenture at the request or direction
of any Holder pursuant to this Indenture, unless
such Holder shall have offered to the Trustee
reasonable security or indemnity against the
costs, expenses and liabilities which might be
incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make
any investigation into the facts or matters stated
in any resolution, certificate, statement,
instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may
make such further inquiry or investigation into
such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further
inquiry or investigation, it shall (subject to
applicable legal requirements) be entitled to
examine, during normal business hours, the books,
records and premises of the Company, personally or
by agent or attorney;
(g) the Trustee may execute any of the
trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents
or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on
the part of any agent or attorney appointed with
due care by it hereunder; and
(h) except as otherwise provided in Section
801, the Trustee shall not be charged with
knowledge of any Event of Default with respect to
the Securities of any series for which it is
acting as Trustee unless either (1) a Responsible
Officer of the Trustee shall have actual knowledge
of the Event of Default or (2) written notice of
such Event of Default shall have been given to the
Trustee by the Company, any other obligor on such
Securities or by any Holder of such Securities.
SECTION 904. 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 responsibility for their correctness.
The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities.
Neither the Trustee nor any Authenticating Agent shall
be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 905. May Hold Securities.
Each of the Trustee, any Authenticating
Agent, any Paying Agent, any Security Registrar or any
other agent of the Company or the Trustee, in its
individual or any other capacity, may become the owner
or pledgee of Securities and, subject to Sections 908
and 913, may otherwise deal with the Company with the
same rights it would have if it were not the Trustee,
Authenticating Agent, Paying Agent, Security Registrar
or such other agent.
SECTION 906. 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 or investment of any money
received by it hereunder except as expressly provided
herein or otherwise agreed with, and for the sole
benefit of, the Company.
SECTION 907. Compensation and Reimbursement.
The Company shall
(a) pay to the Trustee from time to time
reasonable compensation for all services rendered
by it hereunder (which compensation shall not be
limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) except as otherwise expressly provided
herein, reimburse the Trustee upon its request for
all reasonable expenses, disbursements and
advances reasonably 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 to the extent that any such
expense, disbursement or advance may be
attributable to its negligence, willful misconduct
or bad faith; and
(c) indemnify the Trustee and hold it
harmless from and against, any loss, liability or
expense reasonably incurred by it arising out of
or in connection with the acceptance or
administration of the trust or trusts hereunder or
the performance of its duties 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, except to the extent any such
loss, liability or expense may be attributable to
its negligence, willful misconduct or bad faith.
As security for the performance of the
obligations of the Company under this Section, the
Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee
as such other than property and funds held in trust
under Section 703 (except as otherwise provided in
Section 703). "Trustee" for purposes of this Section
shall include any predecessor Trustee; provided,
however, that the negligence, willful misconduct or bad
faith of any Trustee hereunder shall not affect the
rights of any other Trustee hereunder.
SECTION 908. Disqualification; Conflicting Interests.
If the Trustee shall have or acquire any
conflicting interest within the meaning of the Trust
Indenture Act, it shall either eliminate such
conflicting interest or resign to the extent, in the
manner and with the effect, and subject to the
conditions, provided in the Trust Indenture Act and
this Indenture. For purposes of Section 310(b)(1) of
the Trust Indenture Act and to the extent permitted
thereby, the Trustee, in its capacity as trustee in
respect of the Securities of any series, shall not be
deemed to have a conflicting interest arising from its
capacity as trustee in respect of the Securities of any
other series.
SECTION 909. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee
hereunder which shall be
(a) a corporation organized and doing
business under the laws of the United States, any
State or Territory thereof or the District of
Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital
and surplus of at least $50,000,000 and subject to
supervision or examination by Federal or State
authority, or
(b) if and to the extent permitted by
the Commission by rule, regulation or order upon
application, a corporation or other Person
organized and doing business under the laws of a
foreign government, authorized under such laws to
exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 or the
Dollar equivalent of the applicable foreign
currency and subject to supervision or examination
by authority of such foreign government or a
political subdivision thereof substantially
equivalent to supervision or examination
applicable to United States institutional
trustees,
and, in either case, qualified and eligible under this
Article and the Trust Indenture Act. If such corpora
tion publishes reports of condition at least annually,
pursuant to law or to the requirements of such
supervising or examining authority, then for the
purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most
recent report of condition so published. If at any
time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it
shall resign immediately in the manner and with the
effect hereinafter specified in this Article.
SECTION 910. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the
Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective
until the acceptance of appointment by the
successor Trustee in accordance with the
applicable requirements of Section 911.
(b) The Trustee may resign at any time
with respect to the Securities of one or more
series by giving written notice thereof to the
Company. If the instrument of acceptance by a
successor Trustee required by Section 911 shall
not have been delivered to the Trustee within 30
days after the giving of such notice of resigna
tion, the resigning Trustee may petition any court
of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities
of such series.
(c) The Trustee may be removed at any
time with respect to the Securities of any series
by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such
series delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to
comply with Section 908 after written request
therefor by the Company or by any Holder who
has been a bona fide Holder for at least six
months, or
(2) the Trustee shall cease to be
eligible under Section 909 and shall fail to
resign after written request therefor by the
Company or by any such Holder, or
(3) the Trustee shall become
incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed
or any public officer shall take charge or
control of the Trustee or of its property or
affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (A) the Company by a Board
Resolution may remove the Trustee with respect to
all Securities or (B) subject to Section 814, any
Holder who has been a bona fide Holder for at
least six months may, on behalf of himself and all
others similarly situated, petition any court of
competent jurisdiction for the removal of the
Trustee with respect to all Securities and the
appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be
removed or become incapable of acting, or if a
vacancy shall occur in the office of Trustee for
any cause (other than as contemplated in clause
(B) in clause (d) of this Section), 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 911. If,
within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities
of any series shall be appointed by Act of the
Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to
the Company and the retiring Trustee, the succes
sor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with
the applicable requirements of Section 911, become
the successor Trustee with respect to the
Securities of such series and to that extent
supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to
the Securities of any series shall have been so
appointed by the Company or the Holders and
accepted appointment in the manner required by
Section 911, any Holder who has been a bona fide
Holder of a Security of such series for at least
six months may, on behalf of itself and all others
similarly situated, petition any court of
competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities
of such series.
(f) So long as no event which is, or
after notice or lapse of time, or both, would
become, an Event of Default shall have occurred
and be continuing, and except with respect to a
Trustee appointed by Act of the Holders of a
majority in principal amount of the Outstanding
Securities pursuant to subsection (e) of this
Section, if the Company shall have delivered to
the Trustee (1) a Board Resolution appointing a
successor Trustee, effective as of a date
specified therein, and (2) an instrument of
acceptance of such appointment, effective as of
such date, by such successor Trustee in accordance
with Section 911, the Trustee shall be deemed to
have resigned as contemplated in subsection (b) of
this Section, the successor Trustee shall be
deemed to have been appointed by the Company
pursuant to subsection (e) of this Section and
such appointment shall be deemed to have been
accepted as contemplated in Section 911, all as of
such date, and all other provisions of this
Section and Section 911 shall be applicable to
such resignation, appointment and acceptance
except to the extent inconsistent with this clause
(f).
(g) The Company shall give notice of
each resignation and each removal of the Trustee
with respect to the Securities of any series and
each appointment of a successor Trustee with
respect to the Securities of any series by mailing
written notice of such event by first-class mail,
postage prepaid, to all Holders of Securities of
such series as their names and addresses appear in
the Security Register. Each notice shall include
the name of the successor Trustee with respect to
the Securities of such series and the address of
its corporate trust office.
SECTION 911. Acceptance of Appointment by Successor.
(a) In case of the appointment
hereunder of a successor Trustee with respect to
the Securities of all series, 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, shall
become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on the re
quest of the Company or the successor Trustee,
such retiring Trustee shall, upon payment of all
sums owed to it, execute and deliver an instrument
transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to
such successor Trustee all property and money held
by such retiring Trustee hereunder.
(b) In case of the appointment
hereunder of a successor Trustee with respect to
the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each
successor Trustee with respect to the Securities
of such 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 sup
plemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts here
under separate and apart from any trust or trusts
hereunder administered by any other such Trustee;
and upon the execution and delivery of such
supplemental indenture the resignation or removal
of the retiring Trustee shall become effective to
the extent provided therein and each such
successor Trustee, without any further act, 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, upon payment of
all sums owed to it, shall duly assign, transfer
and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder
with respect to the Securities of that or those
series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor
Trustee, the Company shall execute any instruments
which fully vest in and confirm to such successor
Trustee all such rights, powers and trusts
referred to in clause (a) or (b) of this Section,
as the case may be.
(d) No successor Trustee shall accept
its appointment unless at the time of such
acceptance such successor Trustee shall be
qualified and eligible under this Article.
SECTION 912. Merger, Conversion, Consolidation or
Succession to Business.
Any corporation into which the Trustee may be
merged or converted or with which it may be
consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding
to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such
authentication and deliver the Securities so
authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities.
SECTION 913. Preferential Collection of Claims Against
Company.
If the Trustee shall be or become a creditor
of the Company or any other obligor upon the Securities
(other than by reason of a relationship described in
Section 311(b) of the Trust Indenture Act), the Trustee
shall be subject to any and all applicable provisions
of the Trust Indenture Act regarding the collection of
claims against the Company or such other obligor. For
purposes of Section 311(b) of the Trust Indenture Act:
(a) the term "cash transaction" means
any transaction in which full payment for goods or
securities sold is made within seven days after
delivery of the goods or securities in currency or
in checks or other orders drawn upon banks or
bankers and payable upon demand;
(b) the term "self-liquidating paper"
means any draft, bill of exchange, acceptance or
obligation which is made, drawn, negotiated or
incurred by the Company or such obligor for the
purpose of financing the purchase, processing,
manufacturing, shipment, storage or sale of goods,
wares or merchandise and which is secured by
documents evidencing title to, possession of, or a
lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of
the goods, wares or merchandise previously
constituting the security, provided the security
is received by the Trustee simultaneously with the
creation of the creditor relationship with the
Company or such obligor arising from the making,
drawing, negotiating or incurring of the draft,
bill of exchange, acceptance or obligation.
SECTION 914. Co-trustees and Separate Trustees.
At any time or times, for the purpose of
meeting the legal requirements of any applicable
jurisdiction, the Company and the Trustee shall have
power to appoint, and, upon the written request of the
Trustee or of the Holders of at least thirty-three
percentum (33%) in principal amount of the Securities
then Outstanding, the Company shall for such purpose
join with the Trustee in the execution and delivery of
all instruments and agreements necessary or proper to
appoint, one or more Persons approved by the Trustee
either to act as co-trustee, jointly with the Trustee,
or to act as separate trustee, in either case with such
powers as may be provided in the instrument of
appointment, and to vest in such Person or Persons, in
the capacity aforesaid, any property, title, right or
power deemed necessary or desirable, subject to the
other provisions of this Section. If the Company does
not join in such appointment within 15 days after the
receipt by it of a request so to do, or if an Event of
Default shall have occurred and be continuing, the
Trustee alone shall have power to make such
appointment.
Should any written instrument or instruments
from the Company be required by any co-trustee or
separate trustee so appointed to more fully confirm to
such co-trustee or separate trustee such property,
title, right or power, any and all such instruments
shall, on request, be executed, acknowledged and
delivered by the Company.
Every co-trustee or separate trustee shall,
to the extent permitted by law, but to such extent
only, be appointed subject to the following conditions:
(a) the Securities shall be
authenticated and delivered, and all rights,
powers, duties and obligations hereunder in
respect of the custody of securities, cash and
other personal property held by, or required to be
deposited or pledged with, the Trustee hereunder,
shall be exercised solely, by the Trustee;
(b) the rights, powers, duties and
obligations hereby conferred or imposed upon the
Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and
exercised or performed either by the Trustee or by
the Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the
instrument appointing such co-trustee or separate
trustee, except to the extent that under any law
of any jurisdiction in which any particular act is
to be performed, the Trustee shall be incompetent
or unqualified to perform such act, in which event
such rights, powers, duties and obligations shall
be exercised and performed by such co-trustee or
separate trustee;
(c) the Trustee at any time, by an
instrument in writing executed by it, with the
concurrence of the Company, may accept the
resignation of or remove any co-trustee or
separate trustee appointed under this Section,
and, if an Event of Default shall have occurred
and be continuing, the Trustee shall have power to
accept the resignation of, or remove, any such co-
trustee or separate trustee without the
concurrence of the Company. Upon the written
request of the Trustee, the Company shall join
with the Trustee in the execution and delivery of
all instruments and agreements necessary or proper
to effectuate such resignation or removal. A
successor to any co-trustee or separate trustee so
resigned or removed may be appointed in the manner
provided in this Section;
(d) no co-trustee or separate trustee
hereunder shall be personally liable by reason of
any act or omission of the Trustee, or any other
such trustee hereunder; and
(e) any Act of Holders delivered to the
Trustee shall be deemed to have been delivered to
each such co-trustee and separate trustee.
SECTION 915. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating
Agent or Agents with respect to the Securities of one
or more series, or any Tranche thereof, which shall be
authorized to act on behalf of the Trustee to
authenticate Securities of such series or Tranche
issued upon original issuance, exchange, registration
of transfer or partial redemption thereof or pursuant
to Section 306, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall
be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever
reference is made in this Indenture to the
authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by
an Authenticating Agent and a certificate of authentica
tion 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, any State or Territory
thereof or the District of Columbia or the Commonwealth
of Puerto Rico, authorized under such laws to act as
Authenticating Agent, having a combined capital and sur
plus 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 specified in this Section.
Any corporation into which an Authenticating
Agent may be merged or converted or with which it may
be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any
corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided
such corporation shall be otherwise eligible under this
Section, without the execution or filing of any paper
or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any
time by giving written notice thereof to the Trustee
and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating
Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case
at any time such Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Sec
tion, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the
Company. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Trustee agrees to pay to each
Authenticating Agent from time to time reasonable
compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such
payments, in accordance with, and subject to the
provisions of Section 907.
The provisions of Sections 308, 904 and 905
shall be applicable to each Authenticating Agent.
If an appointment with respect to the
Securities of one or more series, or any Tranche
thereof, shall be made pursuant to this Section, the
Securities of such series or Tranche may have endorsed
thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of
authentication substantially in the following form:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
_______________________, Trustee
By:___________________________
As Authenticating Agent
By:___________________________
Authorized Signatory
If all of the Securities of a series may not
be originally issued at one time, and if the Trustee
does not have an office capable of authenticating
Securities upon original issuance located in a Place of
Payment where the Company wishes to have Securities of
such series authenticated upon original issuance, the
Trustee, if so requested by the Company in writing
(which writing need not comply with Section 102 and
need not be accompanied by an Opinion of Counsel),
shall appoint, in accordance with this Section and in
accordance with such procedures as shall be acceptable
to the Trustee, an Authenticating Agent having an
office in a Place of Payment designated by the Company
with respect to such series of Securities.
ARTICLE TEN
Holders' Lists and Reports by Trustee and Company
SECTION 1001. Lists of Holders.
Semiannually, not later than March 1 and
September 1 in each year, commencing March 1, 1996, and
at such other times as the Trustee may request in
writing, the Company shall furnish or cause to be
furnished to the Trustee information as to the names
and addresses of the Holders, and the Trustee shall
preserve such information and similar information
received by it in any other capacity and afford to the
Holders access to information so preserved by it, all
to such extent, if any, and in such manner as shall be
required by the Trust Indenture Act; provided, however,
that no such list need be furnished so long as the
Trustee shall be the Security Registrar.
SECTION 1002. Reports by Trustee and Company.
Not later than July 1 in each year,
commencing July 1, 1996, the Trustee shall transmit to
the Holders and the Commission a report, dated as of
the next preceding May 1, with respect to any events
and other matters described in Section 313(a) of the
Trust Indenture Act, in such manner and to the extent
required by the Trust Indenture Act. The Trustee shall
transmit to the Holders and the Commission, and the
Company shall file with the Trustee (within thirty (30)
days after filing with the Commission in the case of
reports which pursuant to the Trust Indenture Act must
be filed with the Commission and furnished to the
Trustee) and transmit to the Holders, such other
information, reports and other documents, if any, at
such times and in such manner, as shall be required by
the Trust Indenture Act.
ARTICLE ELEVEN
Consolidation, Merger, Conveyance or Other Transfer
SECTION 1101. Company May Consolidate, Etc., Only on
Certain Terms.
The Company shall not consolidate with or
merge into any other corporation, or convey or
otherwise transfer or lease its properties and assets
substantially as an entirety to any Person, unless
(a) the corporation 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 Person organized and existing under the
laws of the United States, 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 sat
isfactory to the Trustee, the due and punctual
payment of the principal of and premium, if any,
and interest, if any, on all Outstanding
Securities and the performance of every covenant
of this Indenture on the part of the Company to be
performed or observed;
(b) immediately after giving effect to
such transaction and treating any indebtedness for
borrowed money which becomes an obligation of the
Company as a result of such transaction as having
been incurred by the Company at the time of such
transaction, no Event of Default, and no event
which, after notice or lapse of time or both,
would become an Event of Default, shall have
occurred and be continuing; and
(c) the Company shall have delivered to
the Trustee an Officer's Certificate and an
Opinion of Counsel, each stating that such
consolidation, merger, conveyance, or other
transfer or lease and such supplemental indenture
comply with this Article and that all conditions
precedent herein provided for relating to such
transactions have been complied with.
SECTION 1102. Successor Corporation Substituted.
Upon any consolidation by the Company with or
merger by the Company into any other corporation or any
conveyance, or other transfer or lease of the
properties and assets of the Company substantially as
an entirety in accordance with Section 1101, the
successor corporation formed by such consolidation or
into which the Company is merged or the Person 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
Outstanding hereunder.
ARTICLE TWELVE
Supplemental Indentures
SECTION 1201. Supplemental Indentures Without Consent
of Holders.
Without the consent of any Holders, the
Company and the Trustee, at any time and from time to
time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(a) 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, all as
provided in Article Eleven; or
(b) to add one or more covenants of the
Company or other provisions for the benefit of all
Holders or for the benefit of the Holders of, or
to remain in effect only so long as there shall be
Outstanding, Securities of one or more specified
series, or one or more specified Tranches thereof,
or to surrender any right or power herein
conferred upon the Company; or
(c) to add any additional Events of
Default with respect to all or any series of
Securities Outstanding hereunder; or
(d) to change or eliminate any
provision of this Indenture or to add any new
provision to this Indenture; provided, however,
that if such change, elimination or addition shall
adversely affect the interests of the Holders of
Securities of any series or Tranche Outstanding on
the date of such indenture supplemental hereto in
any material respect, such change, elimination or
addition shall become effective (1) with respect
to such series or Tranche only pursuant to the
provisions of Section 1202 hereof or (2) when no
Security of such series or Tranche remains
Outstanding; or
(e) to provide collateral security for
all but not part of the Securities; or
(f) to establish the form or terms of
Securities of any series or Tranche as
contemplated by Sections 201 and 301; or
(g) to provide for the authentication
and delivery of bearer securities and coupons
appertaining thereto representing interest, if
any, thereon and for the procedures for the
registration, exchange and replacement thereof and
for the giving of notice to, and the solicitation
of the vote or consent of, the holders thereof,
and for any and all other matters incidental
thereto; or
(h) to evidence and provide for the
acceptance of appointment hereunder by a separate
or 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
clause (b) of Section 911; or
(i) to provide for the procedures
required to permit the Company to utilize, at its
option, a non-certificated system of registration
for all, or any series or Tranche of, the Securi
ties; or
(j) to change any place or places where
(1) the principal of and premium, if any, and
interest, if any, on all or any series of
Securities, or any Tranche thereof, shall be
payable, (2) all or any series of Securities, or
any Tranche thereof, may be surrendered for
registration of transfer, (3) all or any series of
Securities, or any Tranche thereof, may be
surrendered for exchange and (4) notices and
demands to or upon the Company in respect of all
or any series of Securities, or any Tranche
thereof, and this Indenture may be served; or
(k) 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 changes to the
provisions hereof or to add other provisions with
respect to matters or questions arising under this
Indenture, provided that such other changes or
additions shall not adversely affect the interests
of the Holders of Securities of any series or
Tranche in any material respect.
Without limiting the generality of the
foregoing, if the Trust Indenture Act as in effect at
the date of the execution and delivery of this
Indenture or at any time thereafter shall be amended
and
(x) if any such amendment shall require one
or more changes to any provisions hereof or the
inclusion herein of any additional provisions, or
shall by operation of law be deemed to effect such
changes or incorporate such provisions by
reference or otherwise, this Indenture shall be
deemed to have been amended so as to conform to
such amendment to the Trust Indenture Act, and the
Company and the Trustee may, without the consent
of any Holders, enter into an indenture
supplemental hereto to effect or evidence such
changes or additional provisions; or
(y) if any such amendment shall permit one
or more changes to, or the elimination of, any
provisions hereof which, at the date of the
execution and delivery hereof or at any time
thereafter, are required by the Trust Indenture
Act to be contained herein, this Indenture shall
be deemed to have been amended to effect such
changes or elimination, and the Company and the
Trustee may, without the consent of any Holders,
enter into an indenture supplemental hereto to
evidence such amendment hereof.
SECTION 1202. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less
than a majority in aggregate principal amount of the
Securities of all series then Outstanding under this
Indenture, considered as one class, by Act of said
Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provi
sions to, or changing in any manner or eliminating any
of the provisions of, this Indenture; provided,
however, that if there shall be Securities of more than
one series Outstanding hereunder and if a proposed
supplemental indenture shall directly affect the rights
of the Holders of Securities of one or more, but less
than all, of such series, then the consent only of the
Holders of a majority in aggregate principal amount of
the Outstanding Securities of all series so directly
affected, considered as one class, shall be required;
and provided, further, that if the Securities of any
series shall have been issued in more than one Tranche
and if the proposed supplemental indenture shall
directly affect the rights of the Holders of Securities
of one or more, but less than all, of such Tranches,
then the consent only of the Holders of a majority in
aggregate principal amount of the Outstanding
Securities of all Tranches so directly affected,
considered as one class, shall be required; and
provided, further, that no such supplemental indenture
shall:
(a) change the Stated Maturity of the
principal of, or any installment of principal of
or interest on (except as provided in Section 312
hereof), any Security, or reduce the principal
amount thereof or the rate of interest thereon (or
the amount of any installment of interest thereon)
or change the method of calculating such rate or
reduce any premium payable upon the redemption
thereof, or reduce the amount of the principal of
a Discount Security that would be due and payable
upon a declaration of acceleration of the Maturity
thereof pursuant to Section 802, or change the
coin or currency (or other property), in which any
Security or any premium or the interest thereon is
payable, or impair the right to institute suit for
the enforcement of any such payment on or after
the Stated Maturity of any Security (or, in the
case of redemption, on or after the Redemption
Date), without, in any such case, the consent of
the Holder of such Security, or
(b) reduce the percentage in principal
amount of the Outstanding Securities of any series
or any Tranche thereof, the consent of the Holders
of which is required for any such supplemental in
denture, or the consent of the Holders of which is
required for any waiver of compliance with any
provision of this Indenture or of any default
hereunder and its consequences, or reduce the
requirements of Section 1304 for quorum or voting,
without, in any such case, the consent of the
Holders of each Outstanding Security of such
series or Tranche, or
(c) modify any of the provisions of
this Section, Section 607 or Section 813 with
respect to the Securities of any series, or any
Tranche thereof, or except to increase the
percentages in principal amount referred to in
this Section or such other Sections or to provide
that 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,
or the deletion of this proviso, in accordance
with the requirements of clause (b) of Section 911
and clause (h) of Section 1201.
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 Securi
ties, or of one or more Tranches thereof, or which
modifies the rights of the Holders of Securities of
such series or Tranches with respect to such covenant
or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of
Securities of any other series or Tranche.
It shall not be necessary for any Act of
Holders under this Section to approve the particular
form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the
substance thereof. A waiver by a Holder of such
Holder's right to consent under this Section shall be
deemed to be a consent of such Holder.
SECTION 1203. 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 901) shall
be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture.
The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the
Trustee's own rights, duties, immunities or liabilities
under this Indenture or otherwise.
SECTION 1204. 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. Any supplemental indenture permitted
by this Article may restate this Indenture in its
entirety, and, upon the execution and delivery thereof,
any such restatement shall supersede this Indenture as
theretofore in effect for all purposes.
SECTION 1205. Conformity With Trust Indenture Act.
Every supplemental indenture executed
pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in
effect.
SECTION 1206. Reference in Securities to Supplemental Indentures.
Securities of any series, or any Tranche
thereof, 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, or any Tranche thereof, so modified as to
conform, in the opinion of the Trustee and the Company,
to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered
by the Trustee in exchange for Outstanding Securities
of such series or Tranche.
SECTION 1207. Modification Without Supplemental Indenture.
If the terms of any particular series of
Securities shall have been established in a Board
Resolution or an Officer's Certificate pursuant to a
Board Resolution as contemplated by Section 301, and
not in an indenture supplemental hereto, additions to,
changes in or the elimination of any of such terms may
be effected by means of a supplemental Board Resolution
or Officer's Certificate, as the case may be, delivered
to, and accepted by, the Trustee; provided, however,
that such supplemental Board Resolution or Officer's
Certificate shall not be accepted by the Trustee or
otherwise be effective unless all conditions set forth
in this Indenture which would be required to be
satisfied if such additions, changes or elimination
were contained in a supplemental indenture shall have
been appropriately satisfied. Upon the acceptance
thereof by the Trustee, any such supplemental Board
Resolution or Officer's Certificate shall be deemed to
be a "supplemental indenture" for purposes of Section
1204 and 1206.
ARTICLE THIRTEEN
Meetings of Holders; Action Without Meeting
SECTION 1301. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of one or
more, or all, series, or any Tranche or Tranches
thereof, may be called at any time and from time to
time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice,
consent, waiver or other action provided by this
Indenture to be made, given or taken by Holders of
Securities of such series or Tranches.
SECTION 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a
meeting of Holders of Securities of one or more,
or all, series, or any Tranche or Tranches
thereof, for any purpose specified in Section
1301, to be held at such time and at such place in
the Borough of Manhattan, The City of New York, as
the Trustee shall determine, or, with the approval
of the Company, at any other place. Notice of
every such meeting, setting forth the time and the
place of such meeting and in general terms the
action proposed to be taken at such meeting, shall
be given, in the manner provided in Section 106,
not less than 21 nor more than 180 days prior to
the date fixed for the meeting.
(b) If the Trustee shall have been
requested to call a meeting of the Holders of
Securities of one or more, or all, series, or any
Tranche or Tranches thereof, by the Company or by
the Holders of 33% in aggregate principal amount
of all of such series and Tranches, considered as
one class, for any purpose specified in Section
1301, by written request setting forth in
reasonable detail the action proposed to be taken
at the meeting, and the Trustee shall not have
given the notice of such meeting within 21 days
after receipt of such request or shall not
thereafter proceed to cause the meeting to be held
as provided herein, then the Company or the
Holders of Securities of such series and Tranches
in the amount above specified, as the case may be,
may determine the time and the place in the
Borough of Manhattan, The City of New York, or in
such other place as shall be determined or
approved by the Company, for such meeting and may
call such meeting for such purposes by giving
notice thereof as provided in clause (a) of this
Section.
(c) Any meeting of Holders of
Securities of one or more, or all, series, or any
Tranche or Tranches thereof, shall be valid
without notice if the Holders of all Outstanding
Securities of such series or Tranches are present
in person or by proxy and if representatives of
the Company and the Trustee are present, or if
notice is waived in writing before or after the
meeting by the Holders of all Outstanding
Securities of such series, or by such of them as
are not present at the meeting in person or by
proxy, and by the Company and the Trustee.
SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of
Holders of Securities of one or more, or all, series,
or any Tranche or Tranches thereof, a Person shall be
(a) a Holder of one or more Outstanding Securities of
such series or Tranches, or (b) a Person appointed by
an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such
series or Tranches by such Holder or Holders. The only
Persons who shall be entitled to attend any meeting of
Holders of Securities of any series or Tranche shall be
the Persons entitled to vote at such meeting and their
counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its
counsel.
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in
aggregate principal amount of the Outstanding
Securities of the series and Tranches with respect to
which a meeting shall have been called as hereinbefore
provided, considered as one class, shall constitute a
quorum for a meeting of Holders of Securities of such
series and Tranches; provided, however, that if any
action is to be taken at such meeting which this
Indenture expressly provides may be taken by the
Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding
Securities of such series and Tranches, considered as
one class, the Persons entitled to vote such specified
percentage in principal amount of the Outstanding Secu
rities of such series and Tranches, considered as one
class, shall constitute a quorum. In the absence of a
quorum within one hour of the time appointed for any
such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series and
Tranches, be dissolved. In any other case the meeting
may be adjourned for such period as may be determined
by the chairman of the meeting prior to the adjournment
of such meeting. In the absence of a quorum at any
such adjourned meeting, such adjourned meeting may be
further adjourned for such period as may be determined
by the chairman of the meeting prior to the adjournment
of such adjourned meeting. Except as provided by
clause (e) of Section 1305, notice of the reconvening
of any meeting adjourned for more than 30 days shall be
given as provided in clause (a) of Section 1302 not
less than ten days prior to the date on which the
meeting is scheduled to be reconvened. Notice of the
reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities of such
series and Tranches which shall constitute a quorum.
Except as limited by Section 1202, any
resolution presented to a meeting or adjourned meeting
duly reconvened at which a quorum is present as
aforesaid may be adopted only by the affirmative vote
of the Holders of a majority in aggregate principal
amount of the Outstanding Securities of the series and
Tranches with respect to which such meeting shall have
been called, considered as one class; provided,
however, that, except as so limited, any resolution
with respect to any action which this Indenture express
ly provides may be taken by the Holders of a specified
percentage, which is less than a majority, in principal
amount of the Outstanding Securities of such series and
Tranches, considered as one class, may be adopted at a
meeting or an adjourned meeting duly reconvened and at
which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified
percentage in principal amount of the Outstanding
Securities of such series and Tranches, considered as
one class.
Any resolution passed or decision taken at
any meeting of Holders of Securities duly held in
accordance with this Section shall be binding on all
the Holders of Securities of the series and Tranches
with respect to which such meeting shall have been
held, whether or not present or represented at the
meeting.
SECTION 1305. Attendance at Meetings; Determination of Voting
Rights; Conduct and Adjournment of Meetings.
(a) Attendance at meetings of Holders
of Securities may be in person or by proxy; and,
to the extent permitted by law, any such proxy
shall remain in effect and be binding upon any
future Holder of the Securities with respect to
which it was given unless and until specifically
revoked by the Holder or future Holder of such
Securities before being voted.
(b) Notwithstanding any other
provisions of this Indenture, the Trustee may make
such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities
in regard to proof of the holding of such
Securities and of the appointment of proxies and
in regard to the appointment and duties of
inspectors of votes, the submission and
examination of proxies, certificates and other
evidence of the right to vote, and such other
matters concerning the conduct of the meeting as
it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the
holding of Securities shall be proved in the
manner specified in Section 104 and the
appointment of any proxy shall be proved in the
manner specified in Section 104. Such regulations
may provide that written instruments appointing
proxies, regular on their face, may be presumed
valid and genuine without the proof specified in
Section 104 or other proof.
(c) The Trustee shall, by an instrument
in writing, appoint a temporary chairman of the
meeting, unless the meeting shall have been called
by the Company or by Holders as provided in clause
(b) of Section 1302, in which case the Company or
the Holders of Securities of the series and
Tranches calling the meeting, as the case may be,
shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of
the meeting shall be elected by vote of the
Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of
all series and Tranches represented at the meet
ing, considered as one class.
(d) At any meeting each Holder or proxy
shall be entitled to one vote for each $1 princi
pal amount of Securities held or represented by
him; provided, however, that no vote shall be cast
or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled
by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall
have no right to vote, except as a Holder of a
Security or proxy.
(e) Any meeting duly called pursuant to
Section 1302 at which a quorum is present may be
adjourned from time to time by Persons entitled to
vote a majority in aggregate principal amount of
the Outstanding Securities of all series and
Tranches represented at the meeting, considered as
one class; and the meeting may be held as so ad
journed without further notice.
SECTION 1306. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any
meeting of Holders shall be by written ballots on which
shall be subscribed the signatures of the Holders or of
their representatives by proxy and the principal
amounts and serial numbers of the Outstanding Secu
rities, of the series and Tranches with respect to
which the meeting shall have been called, held or
represented by them. The permanent chairman of the
meeting shall appoint two inspectors of votes who shall
count all votes cast at the meeting for or against any
resolution and who shall make and file with the
secretary of the meeting their verified written reports
of all votes cast at the meeting. A record of the
proceedings of each meeting of Holders shall be pre
pared by the secretary of the meeting and there shall
be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more persons having knowledge
of the facts setting forth a copy of the notice of the
meeting and showing that said notice was given as
provided in Section 1302 and, if applicable, Section
1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of
the meeting and one such copy shall be delivered to the
Company, and another to the Trustee to be preserved by
the Trustee, the latter to have attached thereto the
ballots voted at the meeting. Any record so signed and
verified shall be conclusive evidence of the matters
therein stated.
SECTION 1307. Action Without Meeting.
In lieu of a vote of Holders at a meeting as
hereinbefore contemplated in this Article, any request,
demand, authorization, direction, notice, consent,
waiver or other action may be made, given or taken by
Holders by written instruments as provided in Section
104.
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders, Officers and Di
rectors
SECTION 1401. Liability Solely Corporate.
No recourse shall be had for the payment of
the principal of or premium, if any, or interest, if
any, on any Securities, or any part thereof, or for any
claim based thereon or otherwise in respect thereof, or
of the indebtedness represented thereby, or upon any
obligation, covenant or agreement under this Indenture,
against any incorporator, stockholder, officer or
director, as such, past, present or future of the
Company or of any predecessor or successor corporation
(either directly or through the Company or a
predecessor or successor corporation), whether by
virtue of any constitutional provision, statute or rule
of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly agreed and
understood that this Indenture and all the Securities
are solely corporate obligations, and that no personal
liability whatsoever shall attach to, or be incurred
by, any incorporator, stockholder, officer or director,
past, present or future, of the Company or of any
predecessor or successor corporation, either directly
or indirectly through the Company or any predecessor or
successor corporation, because of the indebtedness
hereby authorized or under or by reason of any of the
obligations, covenants or agreements contained in this
Indenture or in any of the Securities or to be implied
herefrom or therefrom, and that any such personal
liability is hereby expressly waived and released as a
condition of, and as part of the consideration for, the
execution of this Indenture and the issuance of the
Securities.
ARTICLE FIFTEEN
Subordination of Securities
SECTION 1501. Securities Subordinate to Senior Indebtedness.
The Company, for itself, its successors and
assigns, covenants and agrees, and each Holder of the
Securities of each series, by its acceptance thereof,
likewise covenants and agrees, that the payment of the
principal of and premium, if any, and interest, if any,
on each and all of the Securities is hereby expressly
subordinated, to the extent and in the manner set forth
in this Article, in right of payment to the prior
payment in full of all Senior Indebtedness.
Each Holder of the Securities of each series,
by its acceptance thereof, authorizes and directs the
Trustee on its behalf to take such action as may be
necessary or appropriate to effectuate the
subordination as provided in this Article, and appoints
the Trustee its attorney-in-fact for any and all such
purposes.
SECTION 1502. Payment Over of Proceeds of Securities.
In the event (a) of any insolvency or
bankruptcy proceedings or any receivership,
liquidation, reorganization or other similar
proceedings in respect of the Company or a substantial
part of its property, or of any proceedings for
liquidation, dissolution or other winding up of the
Company, whether or not involving insolvency or
bankruptcy, or (b) subject to the provisions of Section
1503, that (1) a default shall have occurred with
respect to the payment of principal of or interest on
or other monetary amounts due and payable on any Senior
Indebtedness, or (2) there shall have occurred a
default (other than a default in the payment of
principal or interest or other monetary amounts due and
payable) in respect of any Senior Indebtedness, as
defined therein or in the instrument under which the
same is outstanding, permitting the holder or holders
thereof to accelerate the maturity thereof (with notice
or lapse of time, or both), such default shall have
continued beyond the period of grace, if any, in
respect thereof, and, in the cases of subclauses (1)
and (2) of this clause (b), such default shall not have
been cured or waived or shall not have ceased to exist,
or (c) that the principal of and accrued interest on
the Securities of any series shall have been declared
due and payable pursuant to Section 801 and such
declaration shall not have been rescinded and annulled
as provided in Section 802, then:
(A) the holders of all Senior
Indebtedness shall first be entitled to receive
payment of the full amount due thereon, or
provision shall be made for such payment in
money or money's worth, before the Holders of
any of the Securities are entitled to receive a
payment on account of the principal of,
premium, if any, or interest on the
indebtedness evidenced by the Securities,
including, without limitation, any payments
made pursuant to Articles Four and Five;
(B) any payment by, or distribution of
assets of, the Company of any kind or
character, whether in cash, property or
securities, to which any Holder or the Trustee
would be entitled except for the provisions of
this Article, shall be paid or delivered by the
person making such payment or distribution,
whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to
the holders of such Senior Indebtedness or
their representative or representatives or to
the trustee or trustees under any indenture
under which any instruments evidencing any of
such Senior Indebtedness may have been issued,
ratably according to the aggregate amounts
remaining unpaid on account of such Senior
Indebtedness held or represented by each, to
the extent necessary to make payment in full of
all Senior Indebtedness remaining unpaid after
giving effect to any concurrent payment or
distribution (or provision therefor) to the
holders of such Senior Indebtedness, before any
payment or distribution is made to the Holders
of the indebtedness evidenced by the Securities
or to the Trustee under this Indenture; and
(C) in the event that, notwithstanding
the foregoing, any payment by, or distribution
of assets of, the Company of any kind or
character, whether in cash, property or
securities, in respect of principal of or
interest on the Securities or in connection
with any repurchase by the Company of the
Securities, shall be received by the Trustee or
any Holder before all Senior Indebtedness is
paid in full, or provision is made for such
payment in money or money's worth, such payment
or distribution in respect of principal of or
interest on the Securities or in connection
with any repurchase by the Company of the
Securities shall be paid over to the holders of
such Senior Indebtedness or their
representative or representatives or to the
trustee or trustees under any indenture under
which any instruments evidencing any such
Senior Indebtedness may have been issued,
ratably as aforesaid, for application to the
payment of all Senior Indebtedness remaining
unpaid until all such Senior Indebtedness shall
have been paid in full, after giving effect to
any concurrent payment or distribution (or
provision therefor) to the holders of such
Senior Indebtedness.
Notwithstanding the foregoing, at any time after
the 123rd day following the date of deposit of cash or
Eligible Obligations pursuant to Section 701 (provided
all conditions set out in such Section shall have been
satisfied), the funds so deposited and any interest
thereon will not be subject to any rights of holders of
Senior Indebtedness including, without limitation,
those arising under this Article Fifteen; provided that
no event described in clauses (d) and (e) of Section
801 with respect to the Company has occurred during
such 123-day period.
For purposes of this Article only, the words
"cash, property or securities" shall not be deemed to
include shares of stock of the Company as reorganized
or readjusted, or securities of the Company or any
other corporation provided for by a plan or
reorganization or readjustment which are subordinate in
right of payment to all Senior Indebtedness which may
at the time be outstanding to the same extent as, or to
a greater extent than, the Securities are so
subordinated as provided in this Article. The
consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or
dissolution of the Company following the conveyance or
transfer of its property as an entirety, or
substantially as an entirety, to another corporation
upon the terms and conditions provided for in Article
Eleven hereof shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the
purposes of this Section 1502 if such other corporation
shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions
stated in Article Eleven hereof. Nothing in Section
1501 or in this Section 1502 shall apply to claims of,
or payments to, the Trustee under or pursuant to
Section 907.
SECTION 1503. Disputes with Holders of Certain Senior Indebtedness.
Any failure by the Company to make any payment on
or perform any other obligation in respect of Senior
Indebtedness, other than any indebtedness incurred by
the Company or assumed or guaranteed, directly or
indirectly, by the Company for money borrowed (or any
deferral, renewal, extension or refunding thereof) or
any other obligation as to which the provisions of this
Section shall have been waived by the Company in the
instrument or instruments by which the Company
incurred, assumed, guaranteed or otherwise created such
indebtedness or obligation, shall not be deemed a
default under clause (b) of Section 1502 if (1) the
Company shall be disputing its obligation to make such
payment or perform such obligation and (2) either (A)
no final judgment relating to such dispute shall have
been issued against the Company which is in full force
and effect and is not subject to further review,
including a judgment that has become final by reason of
the expiration of the time within which a party may
seek further appeal or review, or (B) in the event that
a judgment that is subject to further review or appeal
has been issued, the Company shall in good faith be
prosecuting an appeal or other proceeding for review
and a stay or execution shall have been obtained
pending such appeal or review.
SECTION 1504. Subrogation.
Senior Indebtedness shall not be deemed to have
been paid in full unless the holders thereof shall have
received cash (or securities or other property
satisfactory to such holders) in full payment of such
Senior Indebtedness then outstanding. Upon the payment
in full of all Senior Indebtedness, the Holders of the
Securities shall be subrogated to the rights of the
holders of Senior Indebtedness to receive any further
payments or distributions of cash, property or
securities of the Company applicable to the holders of
the Senior Indebtedness until all amounts owing on the
Securities shall be paid in full; and such payments or
distributions of cash, property or securities received
by the Holders of the Securities, by reason of such
subrogation, which otherwise would be paid or
distributed to the holders of such Senior Indebtedness
shall, as between the Company, its creditors other than
the holders of Senior Indebtedness, and the Holders, be
deemed to be a payment by the Company to or on account
of Senior Indebtedness, it being understood that the
provisions of this Article are and are intended solely
for the purpose of defining the relative rights of the
Holders, on the one hand, and the holders of the Senior
Indebtedness, on the other hand.
SECTION 1505. Obligation of the Company Unconditional.
Nothing contained in this Article or elsewhere in
this Indenture or in the Securities is intended to or
shall impair, as among the Company, its creditors other
than the holders of Senior Indebtedness and the
Holders, the obligation of the Company, which is
absolute and unconditional, to pay to the Holders the
principal of and interest on the Securities as and when
the same shall become due and payable in accordance
with their terms, or is intended to or shall affect the
relative rights of the Holders and creditors of the
Company other than the holders of Senior Indebtedness,
nor shall anything herein or therein prevent the
Trustee or any Holder from exercising all remedies
otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any,
under this Article of the holders of Senior
Indebtedness in respect of cash, property or securities
of the Company received upon the exercise of any such
remedy.
Upon any payment or distribution of assets or
securities of the Company referred to in this Article,
the Trustee and the Holders shall be entitled to rely
upon any order or decree of a court of competent
jurisdiction in which such dissolution, winding up,
liquidation or reorganization proceedings are pending
for the purpose of ascertaining the persons entitled to
participate in such distribution, the holders of the
Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon, and all
other facts pertinent thereto or to this Article.
SECTION 1506. Priority of Senior Indebtedness Upon Maturity.
Upon the maturity of the principal of any Senior
Indebtedness by lapse of time, acceleration or
otherwise, all matured principal of Senior Indebtedness
and interest and premium, if any, thereon shall first
be paid in full before any payment of principal or
premium or interest, if any, is made upon the
Securities or before any Securities can be acquired by
the Company or any sinking fund payment is made with
respect to the Securities (except that required sinking
fund payments may be reduced by Securities acquired
before such maturity of such Senior Indebtedness).
SECTION 1507. Trustee as Holder of Senior Indebtedness.
The Trustee shall be entitled to all rights set
forth in this Article with respect to any Senior
Indebtedness at any time held by it, to the same extent
as any other holder of Senior Indebtedness. Nothing in
this Article shall deprive the Trustee of any of its
rights as such holder.
SECTION 1508. Notice to Trustee to Effectuate Subordination.
Notwithstanding the provisions of this Article or
any other provision of the Indenture, the Trustee shall
not be charged with knowledge of the existence of any
facts which would prohibit the making of any payment of
moneys to or by the Trustee unless and until the
Trustee shall have received written notice thereof from
the Company, from a Holder or from a holder of any
Senior Indebtedness or from any representative or
representatives of such holder and, prior to the
receipt of any such written notice, the Trustee shall
be entitled, subject to Section 901, in all respects to
assume that no such facts exist; provided, however,
that, if prior to the fifth Business Day preceding the
date upon which by the terms hereof any such moneys may
become payable for any purpose, or in the event of the
execution of an instrument pursuant to Section 702
acknowledging satisfaction and discharge of this
Indenture, then if prior to the second Business Day
preceding the date of such execution, the Trustee shall
not have received with respect to such moneys the
notice provided for in this Section, then, anything
herein contained to the contrary notwithstanding, the
Trustee may, in its discretion, receive such moneys
and/or apply the same to the purpose for which they
were received, and shall not be affected by any notice
to the contrary, which may be received by it on or
after such date; provided, however, that no such
application shall affect the obligations under this
Article of the persons receiving such moneys from the
Trustee.
SECTION 1509. Modification, Extension, etc. of Senior Indebtedness.
The holders of Senior Indebtedness may, without
affecting in any manner the subordination of the
payment of the principal of and premium, if any, and
interest, if any, on the Securities, at any time or
from time to time and in their absolute discretion,
agree with the Company to change the manner, place or
terms of payment, change or extend the time of payment
of, or renew or alter, any Senior Indebtedness, or
amend or supplement any instrument pursuant to which
any Senior Indebtedness is issued, or exercise or
refrain from exercising any other of their rights under
the Senior Indebtedness including, without limitation,
the waiver of default thereunder, all without notice to
or assent from the Holders or the Trustee.
SECTION 1510. Trustee Has No Fiduciary Duty to Holders
of Senior Indebtedness.
With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform or to
observe only such of its covenants and objectives as
are specifically set forth in this Indenture, and no
implied covenants or obligations with respect to the
holders of Senior Indebtedness shall be read into this
Indenture against the Trustee. The Trustee shall not
be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness, and shall not be liable to any
such holders if it shall mistakenly pay over or deliver
to the Holders or the Company or any other Person,
money or assets to which any holders of Senior
Indebtedness shall be entitled by virtue of this
Article or otherwise.
SECTION 1511. Paying Agents Other Than the Trustee.
In case at any time any Paying Agent other than
the Trustee shall have been appointed by the Company
and be then acting hereunder, the term "Trustee" as
used in this Article shall in such case (unless the
context shall otherwise require) be construed as
extending to and including such Paying Agent within its
meaning as fully for all intents and purposes as if
such Paying Agent were named in this Article in
addition to or in place of the Trustee; provided,
however, that Sections 1507, 1508 and 1510 shall not
apply to the Company if it acts as Paying Agent.
SECTION 1512. Rights of Holders of Senior Indebtedness Not
Impaired.
No right of any present or future holder of Senior
Indebtedness to enforce the subordination herein shall at any
time or in any way be prejudiced or impaired by any act or
failure to act on the part of the Company or by any
noncompliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge
thereof any such holder may have or be otherwise charged with.
SECTION 1513. Effect of Subordination Provisions; Termination.
Notwithstanding anything contained herein to the
contrary, other than as provided in the immediately succeeding
sentence, all the provisions of this Indenture shall be
subject to the provisions of this Article, so far as the same
may be applicable thereto.
Notwithstanding anything contained herein to the
contrary, the provisions of this Article Fifteen shall be of
no further effect, and the Securities shall no longer be
subordinated in right of payment to the prior payment of
Senior Indebtedness, if the Company shall have delivered to
the Trustee a notice to such effect. Any such notice
delivered by the Company shall not be deemed to be a
supplemental indenture for purposes of Article Twelve hereof.
_________________________
This instrument may be executed in any number of counter
parts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute
but one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day
and year first above written.
INTERSTATE POWER COMPANY
By:__________________________
ATTEST:
__________________________
__________________________, TRUSTEE
By:___________________________
ATTEST:
__________________________
<PAGE>
STATE OF IOWA )
) ss.:
COUNTY OF ____ )
On the ____ day of _________, _____, before me personally
came _______________, to me known, who, being by me duly
sworn, did depose and say that he is the _______________ of
Interstate Power Company, the corporation 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, acknowledging the
instrument to be the free act and deed of said corporation.
________________________________
Notary Public
[Notarial Seal]
STATE OF ______ )
) ss.:
COUNTY OF ______ )
On the ____ day of _________, ____, before me personally
came _______________, to me known, who, being by me duly
sworn, did depose and say that he is a _______________ of
_________________, the national banking association described
in and which executed the foregoing instrument; that he knows
the seal of said national banking association; that the seal
affixed to said instrument is the seal of said national
banking association; that it was so affixed by authority of
the Board of Directors of said national banking association,
and that he signed his name thereto by like authority,
acknowledging the instrument to be the free act and deed of
said national banking association.
________________________________
Notary Public
[Notarial Seal]
Exhibit F
[On Letterhead of Steven R. Suleski, Esq.]
November 20, 1998
Securities and Exchange Commission
Washington, D.C. 20549
Re: Interstate Power Company (the "Company")
Statement on Form U-1, as Amended
(File No. 70-9377) (the "Form U-1")
----------------------------------------
Ladies and Gentlemen:
I have read the Form U-1 and am furnishing this opinion
with respect to the proposed transactions described therein
relating to the issuance by the Company of the Debt Securities
and the Tax Exempt Collateral Bonds (as defined therein).
I am of the opinion that the Company is validly
organized and duly existing as a corporation under the laws of
the State of Iowa and that, upon the adoption of appropriate
resolutions by the board of directors of the Company (or a duly
authorized committee thereof), upon the issuance of your order or
orders in this matter permitting such Form U-1 to become
effective with respect to such proposed transactions, and upon
compliance with the relevant provisions of the Securities Act of
1933 and the Trust Indenture Act of 1939, and in the event that
the proposed transactions are consummated in accordance with such
Form U-1 and your order or orders in respect thereof and with
the order of the Iowa Utilities Board with respect thereto:
(a) all state laws applicable to the
proposed transactions will have
been complied with;
(b) the Debt Securities and the Tax
Exempt Collateral Bonds will be
valid and binding obligations of
the Company in accordance with
their terms; and
(c) the consummation of the proposed
transactions will not violate the
legal rights of the holders of any
securities issued by the Company or
any associate company thereof.
I hereby give my written consent to the use of this
opinion in connection with the Form U-1.
Very truly yours,
/s/ Steven R. Suleski
Steven R. Suleski
<TABLE> <S> <C>
<ARTICLE> UT
<LEGEND>
This schedule contains summary financial information extracted from the
September 30, 1998 Financial Statements of Interstate Power Company and is
qualified in its entirety by reference to such Financial Statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> SEP-30-1998
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 492,110
<OTHER-PROPERTY-AND-INVEST> 6,084
<TOTAL-CURRENT-ASSETS> 61,670
<TOTAL-DEFERRED-CHARGES> 7,148
<OTHER-ASSETS> 60,417
<TOTAL-ASSETS> 627,429
<COMMON> 34,221
<CAPITAL-SURPLUS-PAID-IN> 108,814
<RETAINED-EARNINGS> 80,824<F1>
<TOTAL-COMMON-STOCKHOLDERS-EQ> 223,859
24,363
10,819
<LONG-TERM-DEBT-NET> 164,807
<SHORT-TERM-NOTES> 7,483
<LONG-TERM-NOTES-PAYABLE> 0
<COMMERCIAL-PAPER-OBLIGATIONS> 0
<LONG-TERM-DEBT-CURRENT-PORT> 6,300
0
<CAPITAL-LEASE-OBLIGATIONS> 78
<LEASES-CURRENT> 14
<OTHER-ITEMS-CAPITAL-AND-LIAB> 189,706
<TOT-CAPITALIZATION-AND-LIAB> 627,429
<GROSS-OPERATING-REVENUE> 269,928
<INCOME-TAX-EXPENSE> 9,598<F2>
<OTHER-OPERATING-EXPENSES> 234,324
<TOTAL-OPERATING-EXPENSES> 234,324<F2>
<OPERATING-INCOME-LOSS> 35,604
<OTHER-INCOME-NET> (1,228)
<INCOME-BEFORE-INTEREST-EXPEN> 34,376
<TOTAL-INTEREST-EXPENSE> 10,922
<NET-INCOME> 13,856
1,856
<EARNINGS-AVAILABLE-FOR-COMM> 12,000
<COMMON-STOCK-DIVIDENDS> 8,772
<TOTAL-INTEREST-ON-BONDS> 13,201
<CASH-FLOW-OPERATIONS> 41,673
<EPS-PRIMARY> 0<F3>
<EPS-DILUTED> 0<F3>
<FN>
<F1>Includes $(636) of Accumulated Other Comprehensive Income.
<F2>Income tax expense is not included in Operating Expense in the Consolidated
Statements of Income.
<F3>Earnings per share of common stock is not reflected because all common
shares are held by Interstate Energy Corporation.
</FN>
</TABLE>
Exhibit 69
INTERSTATE POWER COMPANY
CONSOLIDATED BALANCE SHEETS (UNAUDITED)
SEPTEMBER 30, 1998
(in thousands)
ASSETS
- ------
PROPERTY, PLANT AND EQUIPMENT:
Utility -
Plant in service -
Electric $ 884,062
Gas 70,941
Common 51
---------
955,054
Less - Accumulated depreciation 474,460
---------
480,594
Construction work in progress 11,516
---------
492,110
Other property, plant and equipment, net 150
---------
492,260
---------
CURRENT ASSETS:
Cash and temporary cash investments (4,056)
Accounts receivable:
Customer, less allowance for doubtful accounts of $200 31,602
Associated companies 610
Other, less allowance for doubtful accounts of $5 248
Production fuel, at average cost 17,534
Materials and supplies, at average cost 6,619
Gas stored underground, at average cost 3,527
Regulatory assets 3,280
Prepayments and other 2,306
---------
61,670
---------
INVESTMENTS:
Other 5,934
---------
5,934
---------
OTHER ASSETS:
Regulatory assets 60,417
Deferred charges and other 7,148
---------
67,565
---------
$ 627,429
=========
<PAGE>
INTERSTATE POWER COMPANY
CONSOLIDATED BALANCE SHEETS (CONTINUED) (UNAUDITED)
SEPTEMBER 30, 1998
(in thousands, except share amounts)
CAPITALIZATION AND LIABILITIES
- ------------------------------
CAPITALIZATION:
Common stock - par value $3.50 per share - $ 34,221
authorized 30,000,000 shares; 9,777,432
shares outstanding
Additional paid - in capital 108,814
Retained earnings 81,460
Accumulated other comprehensive income (636)
---------
Total common equity 223,859
---------
Subsidiary preferred stock, cumulative,
par value $50 per share - authorized
2,000,000 shares:
Not mandatorily redeemable - 10,819
216,381 shares outstanding
Mandatorily redeemable-545,000 shares 27,250
outstanding; $53.20 redemption price
Less: unamortized expenses (2,887)
Long-term debt (excluding current portion) 164,807
---------
423,848
---------
CURRENT LIABILITIES:
Current maturities and sinking funds 6,300
Notes payable to associated companies 7,483
Capital lease obligations 14
Accounts payable 7,267
Accounts payable to associated companies 10,705
Accrued pay roll and vacations 738
Accrued interest 3,821
Accrued taxes 23,703
Environmental liabilities 4,860
Other 10,994
---------
75,885
---------
OTHER LONG-TERM LIABILITIES AND DEFERRED CREDITS:
Accumulated deferred income taxes 89,898
Accumulated deferred investment tax credits 15,214
Pension and other benefit obligations 14,887
Environmental liabilities 1,534
Capital lease obligations 78
Other 6,085
---------
127,696
---------
$ 627,429
=========
Exhibit 70
INTERSTATE POWER COMPANY
CONSOLIDATED STATEMENTS OF INCOME (UNAUDITED)
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1998
(in thousands)
OPERATING REVENUES:
Electric utility $ 238,545
Gas utility 31,383
----------
269,928
----------
OPERATING EXPENSES:
Electric production fuels 45,648
Purchased power 54,420
Cost of gas sold 15,498
Other operation 69,700
Maintenance 11,788
Depreciation and amortization 24,222
Taxes other than income taxes 13,048
----------
234,324
----------
OPERATING INCOME 35,604
----------
INTEREST EXPENSE AND OTHER:
Interest expense 10,922
Allowance for funds used during construction (306)
Miscellaneous, net 1,534
----------
12,150
----------
INCOME BEFORE INCOME TAXES 23,454
----------
INCOME TAXES 9,598
----------
NET INCOME 13,856
----------
PREFERRED DIVIDEND REQUIREMENTS 1,856
----------
EARNINGS AVAILABLE FOR COMMOM STOCK $ 12,000
==========
