<TABLE> <S> <C>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) October 3, 1995
Registrant; State of Incorporation; IRS Employer
Commission File Number Address; and Telephone Number Identification No.
1-5532 PORTLAND GENERAL CORPORATION 93-0909442
(an Oregon Corporation)
121 SW Salmon Street
Portland, Oregon 97204
(503) 464-8820
1-5532-99 PORTLAND GENERAL ELECTRIC COMPANY 93-0256820
(an Oregon Corporation)
121 SW Salmon Street
Portland, Oregon 97204
(503) 464-8000
121 S.W. Salmon Street, Portland, Oregon 97204
(Address of principal executive offices) (zip code)
Registrant's telephone number, including area code 503-464-8820<PAGE>
</TABLE>
Item 5. Other Events
On October 3, 1995, Portland General Electric Company agreed to sell
$75,000,000 aggregate principal amount of its 8 1/4% Quarterly Income Debt
Securities (QUIDS), (Junior Subordinated Deferrable Interest Debentures,
Series A), due 2035. For further information concerning the QUIDS, refer
to the exhibits contained in this current report on form 8-K.
Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits
Exhibits
Exhibit Number Description
4 (b) Indenture for Junior Subordinated Debentures
dated as of September 1, 1995
4 (c) First Supplemental Indenture for Junior Subordinated
Debentures dated as of October 1, 1995
Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrants have duly caused this report to be signed on their
behalf by the undersigned hereunto duly authorized.
Portland General Corporation
Portland General Electric Company
October 9, 1995 By /s/ Joseph E. Feltz
Joseph E. Feltz
Assistant Controller
Assistant Treasurer
PORTLAND GENERAL ELECTRIC COMPANY
and
THE BANK OF NEW YORK,
as Trustee
__________
INDENTURE
Dated as of September 1, 1995
___________
Junior Subordinated Debentures
IPS-29952.2
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CROSS-REFERENCE TABLE
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<CAPTION>
Section of Trust Indenture Act of 1939, as amended Section of
Indenture
<S> <C> <C>
310(a) 7.09
310(b) 7.08
7.10
310(c) Inapplicable
311(a) 7.13
311(b) 7.13
311(c) Inapplicable
312(a) 5.01
312(b) 5.02(a)
5.02(d)
5.02(c)
312(c) 5.02(e)
313(a) 5.04(a)
313(b) 5.04(b)
313(c) 5.04(a)
5.04(b)
313(d) 5.04(c)
314(a) 5.03
314(b) Inapplicable
314(c) 13.05(a)
314(d) Inapplicable
314(e) 13.05(b)
314(f) Inapplicable
315(a) 7.01(a)
7.02
315(b) 6.07
315(c) 7.01
315(d) 7.01(b)
7.01(c)
315(e) 6.08
316(a) 6.06
8.04
316(b) 6.04
316(c) 8.01
317(a) 6.02
317(b) 4.03
318(a) 13.08
</TABLE>
IPS-29952.2
<PAGE>
TABLE OF CONTENTS*
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Page
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PARTIES 1
RECITALS:
ARTICLE ONE
DEFINITIONS
SECTION 1.01 Certain terms defined; other terms defined in the Trust
Indenture Act of 1939, as amended, or by reference therein
in the Securities Act of 1933, as amended, to have the
meanings assigned therein 1
Applicants 2
Authenticating Agent 2
Board of Directors 2
Board Resolution 2
Business Day 2
Certificate 2
Certificate of Authentication 2
Commission 2
Company 2
Company Request or Company Order 2
Corporate Trust Office 3
Debenture or Debentures 3
Debentureholder, holder of Debentures, registered holder,
or holder 3
Debenture Register 3
Debenture Registrar 3
Default 3
Defaulted Interest 3
Depository 3
This Table of Contents does not constitute part of the Indenture and should
not have any bearing upon the interpretation of any of its terms or
provisions.
ii
<PAGE>
Event of Default 3
Global Debenture 3
Governmental Obligations 3
Indenture 4
Interest Payment Date 4
Officers' Certificate 4
Opinion of Counsel 4
Outstanding 4
Predecessor Debenture 5
Regular Record Date 5
Responsible Officer 5
Senior Indebtedness 5
Trustee 6
Trust Indenture Act 6
Vice President 6
ARTICLE TWO
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF
DEBENTURES
SECTION 2.01 Designation, terms, amount, authentication and delivery of
Debentures 6
SECTION 2.02 Form of Debentures and Trustee's certificate 8
SECTION 2.03 Date and denominations of Debentures, and provisions for
payment of principal, premium and interest 8
SECTION 2.04 Execution of Debentures 10
SECTION 2.05 Exchange of Debentures 11
(a) Registration and transfer of Debentures 11
(b) Debentures to be accompanied by proper instruments of
transfer 11
(c) Charges upon exchange, transfer or registration of
Debentures 12
iii
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(d) Restrictions on transfer or exchange at time of
redemption 12
SECTION 2.06 Temporary Debentures 12
SECTION 2.07 Mutilated, destroyed, lost or stolen Debentures 13
SECTION 2.08 Cancellation of surrendered Debentures 14
SECTION 2.09 Provisions of Indenture and Debentures for sole benefit of
parties and Debentureholders 14
SECTION 2.10 Appointment of Authenticating Agent 14
SECTION 2.11 Global Debenture 15
ARTICLE THREE
REDEMPTION OF DEBENTURES AND SINKING FUND PROVISIONS
SECTION 3.01 Redemption of Debentures 17
SECTION 3.02 (a) Notice of redemption 18
(b) Selection of Debentures in case less than all
Debentures to be redeemed 18
SECTION 3.03 (a) When Debentures called for redemption become due and
payable 19
(b) Receipt of new Debenture upon partial payment 19
SECTION 3.04 Sinking Fund for Debentures 19
SECTION 3.05 Satisfaction of Sinking Fund Payments with Debentures 20
SECTION 3.06 Redemption of Debentures for Sinking Fund 20
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01 Payment of principal of (and premium, if any) and interest
on Debentures 20
SECTION 4.02 Maintenance of office or agency for payment of Debentures,
designation of office or agency for payment, registration,
transfer and exchange of Debentures 20
SECTION 4.03 (a) Duties of paying agent 21
(b) Company as paying agent 21
iv
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(c) Holding sums in trust 21
SECTION 4.04 Appointment to fill vacancy in office of Trustee 21
SECTION 4.05 Restriction on consolidation, merger or sale 21
SECTION 4.06 Restriction on declaration of dividends, etc 21
ARTICLE FIVE
DEBENTUREHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 5.01 Company to furnish Trustee information as to names and
addresses of Debentureholders 23
SECTION 5.02 (a) Trustee to preserve information as to names and
addresses of Debentureholders received by it in
capacity of paying agent 23
(b) Trustee may destroy list of Debentureholders on
certain conditions 23
(c) Trustee to make information as to names and addresses
of Debentureholders available to "Applicants" or mail
communications to Debentureholders in certain
circumstances 23
(d) Procedure if Trustee elects not to make information
available to Applicants 24
(e) Company and Trustee not accountable for disclosure of
information 24
SECTION 5.03 (a) Annual and other reports to be filed by Company with
Trustee 24
(b) Additional information and reports to be filed with
Trustee and Securities and Exchange Commission 25
(c) Summaries of information and reports to be transmitted
by Company to Debentureholders 25
(d) Annual Certificate to be furnished to Trustee 25
v
<PAGE>
(e) Reports concerning original issue discount 25
SECTION 5.04 (a) Trustee to transmit annual report to
Debentureholders 25
(b) Trustee to transmit certain further reports to
Debentureholders 26
(c) Copies of reports to be filed with exchanges and
Securities and Exchange Commission 27
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS UPON EVENT
OF DEFAULT
SECTION 6.01 (a) Events of Default defined 27
(b) Acceleration of maturity upon Event of Defaul 28
(c) Waiver of default and rescission of declaration
of maturity 28
(d) Restoration of former position and rights upon
curing default 29
SECTION 6.02 (a) Covenant of Company to pay to Trustee whole
amount due on Debentures on default in payment
of interest or principal (and premium, if any) 29
(b) Trustee may recover judgment for whole amount
due on Debentures on failure of Company to pay 30
(c) Filing of proof of claim by Trustee in bankruptcy,
reorganization or receivership proceeding 30
(d) Rights of action and of asserting claims may be
enforced by Trustee without possession of Debentures 30
SECTION 6.03 Application of moneys collected by Trustee 31
SECTION 6.04 Limitation on suits by holders of Debentures 31
SECTION 6.05 (a) Remedies cumulative 32
(b) Delay or omission in exercise of rights not
waiver of default 32
vi
<PAGE>
SECTION 6.06 Rights of holders of majority in principal amount of
Debentures to direct Trustee and to waive defaults 32
SECTION 6.07 Trustee to give notice of defaults known to it,
but may withhold in certain circumstances 33
SECTION 6.08 Requirements of an undertaking to pay costs in certain
suits under Indenture or against Trustee 33
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.01 (a) Upon Event of Default occurring and continuing,
Trustee shall exercise powers vested in it, and use
same degree of care and skill in their exercise, as
prudent individual would use 34
(b) Trustee not relieved from liability for negligence
or willful misconduct except as provided in this
section 34
(1) Prior to Event of Default and after the
curing of all Events of Default which may
have occurred 34
(i) Trustee not liable except for performance
of duties specifically set forth 34
(ii) In absence of bad faith, Trustee may
conclusively rely on certificates or
opinions furnished it hereunder, subject to
duty to examine the same if specifically
required to be furnished to it 35
(2) Trustee not liable for error of judgment made in
good faith by Responsible Officer unless Trustee
negligent 35
(3) Trustee not liable for action or nonaction in
accordance with direction of holders of majority
in principal amount of Debentures 35
vii
<PAGE>
(4) Trustee need not expend own funds without
adequate indemnity 35
(c) Provisions regarding liability of Trustee subject
to Section 7.01 35
SECTION 7.02 Subject to provisions of Section 7.01: 35
(a) Trustee may rely on documents believed genuine and
properly signed or presented 35
(b) Sufficient evidence by certain instrument provided
for 35
(c) Trustee may obtain Officer's Certificate 36
(d) Trustee may consult with counsel and act on advice
or Opinion of Counsel 36
(e) Trustee may require indemnity from Debentureholders 36
(f) Prior to Event of Default Trustee not bound to
investigate facts or matters stated in certificates,
etc., unless requested in writing by
Debentureholders 36
(g) Trustee not liable for actions in good faith
believed to be authorized 36
(h) Trustee not bound to make investigation 36
(i) Trustee may perform duties directly or through
agents or attorneys 37
(j) Application for Instructions 37
SECTION 7.03 (a) Trustee not liable for recitals in Indenture or
in Debentures 37
(b) No representations by Trustee as to validity of
Indenture or of Debentures 37
(c) Trustee not accountable for use of Debentures or
proceeds 37
SECTION 7.04 Trustee, paying agent or Debenture Registrar may own
Debentures 37
SECTION 7.05 Moneys received by Trustee to be held in trust without
interest 37
viii
<PAGE>
SECTION 7.06 (a) Trustee entitled to compensation, reimbursement
and indemnity 38
(b) Obligations to Trustee to be secured by claim prior
to Debentures 38
(c) Services in connection with Event of Default 38
SECTION 7.07 Right of Trustee to rely on certificate of officers of
Company where no other evidence specifically prescribed 38
SECTION 7.08 Trustee acquiring conflicting interest to eliminate
conflict or resign 39
SECTION 7.09 Requirements for eligibility of Trustee 39
SECTION 7.10 (a) Resignation of Trustee and appointment of successor 39
(b) Removal of Trustee by Company or by court on
Debentureholders' application 40
(c) Removal of Trustee by holders of majority in principal
amount of Debentures 40
(d) Time when resignation or removal of Trustee effective 40
(e) One Trustee for each series 40
SECTION 7.11 (a) Acceptance by successor to Trustee 40
(b) Trustee with respect to less than all series 41
(c) Company to confirm Trustee's rights 42
(d) Successor Trustee to be qualified 42
(e) Notice of succession 42
SECTION 7.12 Successor to Trustee by merger, consolidation or succession
to business 42
SECTION 7.13 Limitations on rights of Trustee as a creditor to obtain
payment of certain claims within four months prior to
default or during default, or to realize on property as
such creditor thereafter 42
ix
<PAGE>
ARTICLE EIGHT
CONCERNING THE DEBENTUREHOLDERS
SECTION 8.01 Evidence of action by Debentureholders 42
SECTION 8.02 Proof of execution of instruments and of holding of
Debentures 43
SECTION 8.03 Who may be deemed owners of Debentures 43
SECTION 8.04 Debentures owned by Company or controlled or controlling
companies disregarded for certain purposes 44
SECTION 8.05 Insurements executed by Debentureholders bind future
holders 44
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01 Purposes for which supplemental indenture may be entered
into without consent of Debentureholders 44
SECTION 9.02 Modification of Indenture with consent of Debentureholder 46
SECTION 9.03 Effect of supplemental indentures 47
SECTION 9.04 Debentures may bear notation of changes by supplemental
indentures 47
SECTION 9.05 Opinion of Counsel 47
ARTICLE TEN
CONSOLIDATION, MERGER AND SALE
SECTION 10.01 Consolidations or mergers of Company and sales or
conveyances of property of Company permitted 47
SECTION 10.02 (a) Rights and duties of successor company 48
(b) Appropriate changes may be made in phraseology and
form of Debentures 48
(c) Company may consolidate or merge into itself or
acquire properties of other corporations 48
SECTION 10.03 Opinion of Counsel 49
x
<PAGE>
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 11.01 Satisfaction and discharge of Indenture 49
SECTION 11.02 Discharge of Company's Obligations 49
SECTION 11.03 Opinion of Counsel 50
SECTION 11.04 Application by Trustee of funds deposited for
payment of Debentures 50
SECTION 11.05 Repayment of moneys held by paying agent 51
SECTION 11.06 Repayment of moneys held by Trustee 51
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 12.01 Incorporators, stockholders, officers and directors of
Company exempt from individual liability 51
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
SECTION 13.01 Successors and assigns of Company bound by Indenture 52
SECTION 13.02 Acts of board, committee or officer of successor
company valid 52
SECTION 13.03 Required notices or demands may be served by mail 52
SECTION 13.04 Indenture and Debentures to be construed in accordance
with laws of the State of New York 52
SECTION 13.05 (a) Officers' Certificate and Opinion of Counsel to be
furnished upon applications or demands by Company 52
(b) Statements to be included in each certificate or
opinion with respect to compliance with condition
or covenant 52
SECTION 13.06 Opinion of Counsel to be furnished upon execution of
Indenture 53
SECTION 13.07 Payments due on Sundays or holidays 53
SECTION 13.08 Provisions required by Trust Indenture Act of 1939 to
control 53
xi
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SECTION 13.09 Indenture may be executed in counterparts 53
SECTION 13.10 Separability of Indenture provisions 53
SECTION 13.11 Assignment by Company 54
SECTION 13.12 Agreement that Debentures constitute debt 54
ARTICLE FOURTEEN
SUBORDINATION OF DEBENTURES
SECTION 14.01 Agreement of Subordination 54
SECTION 14.02 Limitations on payments to Debentureholders 54
SECTION 14.03 Payments in bankruptcy 55
SECTION 14.04 Subrogation of Debentures 56
SECTION 14.05 Authorization by Debentureholders 57
SECTION 14.06 Notice to Trustee 57
SECTION 14.07 Trustee relation to Senior Indebtedness 58
SECTION 14.08 Acts of holders of Senior Indebtedness 59
ACCEPTANCE OF TRUST BY TRUSTEE 59
TESTIMONIUM 60
SIGNATURES AND SEALS 60
ACKNOWLEDGMENTS 61
</TABLE>
IPS-29952.2 xii
<PAGE>
THIS INDENTURE, dated as of the 1st day of September, 1995, between
PORTLAND GENERAL ELECTRIC COMPANY, a corporation duly organized and
existing under the laws of the State of Oregon (hereinafter sometimes
referred to as the "Company"), and THE BANK OF NEW YORK, a New York
banking corporation organized and existing under the laws of the State of
New York, as trustee (hereinafter sometimes referred to as the "Trustee"):
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the execution and delivery of this indenture to provide for the
issuance of Debentures (as hereinafter defined), in an unlimited aggregate
principal amount, from time to time in one or more series and to provide
the terms and conditions upon which the Debentures are to be
authenticated, issued and delivered; and
WHEREAS, the Debentures and the Certificate of Authentication (as
hereinafter defined) to be borne by the Debentures are to be substantially
in such forms as may be approved by the Board of Directors (as hereinafter
defined) or set forth in any indenture supplemental to this Indenture; and
WHEREAS, all acts and things necessary to make the Debentures issued
pursuant hereto, when executed by the Company and authenticated and
delivered by the Trustee as in this Indenture provided, the valid, binding
and legal obligations of the Company, and to constitute these presents a
valid indenture and agreement according to its terms, have been done and
performed or will be done and performed prior to the issuance of the
Debentures, and the execution of this Indenture and the issuance hereunder
of the Debentures have been or will be prior to issuance in all respects
duly authorized, and the Company, in the exercise of the legal right and
power in it vested, executes this Indenture and proposes to make, execute,
issue and deliver the Debentures;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the
Debentures are and are to be authenticated, issued and delivered, and in
consideration of the premises, of the purchase and acceptance of the
Debentures by the holders thereof and of the sum of one dollar ($1.00) to
it duly paid by the Trustee at the execution of these presents, the
receipt whereof is hereby acknowledged, the Company covenants and agrees
with the Trustee, for the equal and proportionate benefit (subject to the
provisions of this Indenture) of the respective holders from time to time
of the Debentures, without any discrimination, preference or priority of
any one Debenture over any other by reason of priority in the time of
issue, sale or negotiation thereof, or otherwise, except as provided
herein, as follows:
ARTICLE ONE
Definitions
SECTION 1.01. The terms defined in this Section (except as in this
Indenture otherwise expressly provided or unless the context
IPS-29952.2 1
<PAGE>
otherwise requires) for all purposes of this Indenture, any resolution of
the Board of Directors of the Company and of any indenture supplemental
hereto shall have the respective meanings specified in this Section. All
other terms used in this Indenture which are defined in the Trust
Indenture Act, or which are by reference in the Trust Indenture Act
defined in the Securities Act of 1933, as amended (the "Securities Act"),
(except as herein otherwise expressly provided or unless the context
otherwise requires), shall have the meanings assigned to such terms in the
Trust Indenture Act and in the Securities Act as in force at the date of
the execution of this instrument.
"Applicants" has the meaning set forth in Section 5.02(c).
"Authenticating Agent" means an authenticating agent with respect to all
or any of the series of Debentures, as the case may be, appointed with
respect to all or any series of the Debentures, as the case may be, by the
Trustee pursuant to Section 2.10.
"Board of Directors" means the Board of Directors of the Company, or any
committee of such Board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the
Board of Directors and to be in full force and effect on the date of such
certification.
"Business Day", with respect to any series of Debentures means any day
other than a day on which banking institutions in the Borough of
Manhattan, the City and State of New York, are authorized to close.
"Certificate" means a certificate signed by the principal executive
officer, principal financial officer, or principal accounting officer of
the Company. The Certificate need not comply with the provisions of
Section 13.05(b).
"Certificate of Authentication" means the certificate established pursuant
to Section 2.01 to be executed by the Trustee or any Authenticating Agent
pursuant to Section 2.04.
"Commission" means the Securities and Exchange Commission.
"Company" means Portland General Electric Company, a corporation duly
organized and existing under the laws of the State of Oregon, and, subject
to the provisions of Article Ten, also includes its successors and
assigns.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company (i) by its Chairman, its Chief Executive
Officer, its President, its Chief Financial Officer, a Vice President, its
Treasurer, or an Assistant Treasurer, and (ii) its Secretary or an
Assistant Secretary and delivered to the Trustee; PROVIDED HOWEVER, that
such written request or order may be signed by any two of the officers
listed in
IPS-29952.2 2
<PAGE>
clause (i) above in lieu of being signed by one of such officers listed
in such clause (i) and one of the officers listed in clause (ii) above.
"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 the execution of this Indenture
is located at 101 Barclay Street, New York NY 10286. Attention:
Corporate Trust Trustee Administration.
"Debenture" or "Debentures" means any Debenture or Debentures, as the case
may be, authenticated and delivered under this Indenture.
"Debentureholder", "holder of Debentures", "registered holder", "holder"
or other similar term means the person or persons in whose name or names a
particular Debenture shall be registered on the books of the Company kept
for that purpose in accordance with the terms of this Indenture.
"Debenture Register" has the meaning set forth in Section 2.05(b).
"Debenture Registrar" has the meaning set forth in Section 2.05(b).
"Default" means any event, act or condition which with notice or lapse of
time, or both, would constitute an Event of Default.
"Defaulted Interest" has the meaning set forth in Section 2.03.
"Depository" means, with respect to Debentures of any series for which the
Company shall determine that such Debentures will be issued as a Global
Debenture, The Depository Trust Company, New York, New York, another
clearing agency or any successor registered as a clearing agency under the
Securities and Exchange Act of 1934, as amended (the "Exchange Act") or
other applicable statute or regulation, which, in each case, shall be
designated by the Company pursuant to either Section 2.01 or 2.11.
"Event of Default" means, with respect to Debentures of a particular
series, any event specified in Section 6.01, continued for the period of
time, if any, therein designated.
"Global Debenture" means, with respect to any series of Debentures, a
Debenture executed by the Company and delivered by the Trustee to the
Depository or pursuant to the Depository's instruction, all in accordance
with the Indenture, which shall be registered in the name of the
Depository or its nominee.
"Governmental Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of a person
controlled or supervised by and acting as an agency or instrumentality of
the United States of America, the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case, are not callable or redeemable at the
option of the issuer thereof,
IPS-29952.2 3
<PAGE>
and shall also include a depository receipt issued by a bank (as defined
in Section 3(a)(2) of the Securities Act) as custodian with respect to any
such Governmental Obligation or a specific payment of principal of or
interest on any such Governmental Obligation held by such custodian for
the account of the holder of such depository receipt; provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt
from any amount received by the custodian in respect of the specific
payment of principal of or interest on the Governmental Obligation
evidenced by such depository receipt.
"Indenture" means this instrument as originally executed, or, if amended
or supplemented as herein provided, as so amended or supplemented.
"Interest Payment Date", when used with respect to any installment of
interest on a Debenture of a particular series, means the date specified
in such Debenture, a Board Resolution or an indenture supplemental hereto
with respect to that series as the fixed date on which an installment of
interest with respect to Debentures of that series is due and payable.
"Officers' Certificate" means a certificate signed by (i) the Chairman,
the Chief Executive Officer, the President, the Chief Financial Officer, a
Vice President, the Treasurer or the Assistant Treasurer of the Company
and (ii) the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee; PROVIDED, HOWEVER, that such certificate may be
signed by two of the officers listed in clause (i) above in lieu of being
signed by one of such officers listed in such clause (i) and one of the
officers listed in clause (ii) above.
"Opinion of Counsel" means an opinion in writing signed by legal counsel,
who may be counsel for the Company, reasonably acceptable to the Trustee.
Each such opinion shall include the statements provided for in Section
13.05, if and to the extent required by the provisions thereof.
"Outstanding", when used with reference to Debentures of any series,
means, subject to the provisions of Section 8.04, as of any particular
time, all Debentures of that series theretofore authenticated and
delivered by the Trustee under this Indenture, except (a) Debentures
theretofore canceled by the Trustee or any paying agent, or delivered to
the Trustee or any paying agent for cancellation or which have previously
been canceled; (b) Debentures or portions thereof for the payment or
redemption of which moneys or Governmental Obligations in the necessary
amount shall have been deposited in trust with the Trustee or with any
paying agent (other than the Company) or shall have been set aside and
segregated in trust by the Company (if the Company shall act as its own
paying agent); provided, however, that if such Debentures or portions of
such Debentures are to be redeemed prior to the maturity thereof, notice
of such redemption shall have been given as in Article Three provided, or
provision satisfactory to the Trustee shall have been
IPS-29952.2 4
<PAGE>
made for giving such notice; (c) Debentures in lieu of or in substitution
for which other Debentures shall have been authenticated and delivered
pursuant to the terms of Section 2.07; and (d) Debentures paid pursuant to
Section 2.07.
"Predecessor Debenture" of any particular Debenture means every previous
Debenture evidencing all or a portion of the same debt as that evidenced
by that particular Debenture; and, for the purposes of this definition,
any Debenture authenticated and delivered under Section 2.07 in lieu of a
lost, destroyed or stolen Debenture shall be deemed to evidence the same
debt as the lost, destroyed or stolen Debenture.
"Regular Record Date" has the meaning set forth in Section 2.03.
"Responsible Officer", when used with respect to the Trustee, means the
chairman of the board of directors, president, any vice president,
secretary, treasurer, any trust officer, any corporate trust officer or
any other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by the persons who at the
time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of his or her knowledge of and familiarity with
the particular subject.
"Senior Indebtedness" of the Company means the principal of, and premium,
if any, and interest on and any other payment or obligations due pursuant
to any of the following, whether outstanding at the date of execution of
this Indenture or thereafter incurred, created or assumed: (a) all
indebtedness of the Company for money borrowed, (b) all indebtedness
evidenced by notes, debentures, bonds, securities or other similar
instruments issued by the Company, (c) all capital lease obligations of
the Company, (d) all obligations of the Company issued or assumed as the
deferred purchase price of property, all conditional sales obligations of
the Company and all obligations of the Company under any title retention
agreement (excluding trade accounts payable arising in the ordinary course
of business), (e) obligations of the Company for the reimbursement of any
obligor on any letter of credit, banker's acceptance, security purchase
facility, surety bond or similar credit transaction entered into in the
ordinary course of business of the Company, (f) all indebtedness and
obligations of others of the kinds described in clauses (a) through (e)
assumed by or guaranteed in any manner by the Company or in effect
guaranteed by the Company through an agreement to purchase, contingent or
otherwise, and (g) all renewals, extensions or refundings of indebtedness
of the kinds described in clauses (a) through (f) unless, in the case of
any particular indebtedness, obligation, renewal, extension or refunding,
the instrument creating or evidencing the same or the assumption or
guarantee of the same expressly provides that such indebtedness,
obligation, renewal, extension or refunding is not superior in right of
payment to or is pari passu with the Debentures. Such Senior Indebtedness
shall continue to be Senior Indebtedness and entitled to the benefits of
the subordination provisions set forth in Article
IPS-29952.2 5
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Fourteen of this Indenture irrespective of any amendment, modification or
waiver of any term of such Senior Indebtedness.
"Trustee" means The Bank of New York and, subject to the provisions of
Article Seven, shall also include its successors and assigns, and if at
any time there is more than one person acting in such capacity hereunder,
"Trustee" means each such person. The term "Trustee" as used with respect
to a particular series of the Debentures means the trustee with respect to
that series.
"Trust Indenture Act," subject to the provisions of Sections 9.01, 9.02
and 10.01, means the Trust Indenture Act of 1939, as amended and in effect
at the date of execution of this Indenture.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word
or words added before or after the title "vice president".
ARTICLE TWO
Issue, Description, Terms, Execution,
Registration and Exchange of Debentures
SECTION 2.01. The aggregate principal amount of Debentures which may
be authenticated and delivered under this Indenture is unlimited.
The Debentures may be issued in one or more series pursuant to one or
more indentures supplemental hereto. Prior to the initial issuance of
Debentures of any series, there shall be established in or pursuant to a
Board Resolution delivered to the Trustee, or by any officer of the
Company designated in a Board Resolution delivered to the Trustee, and set
forth in an Officers' Certificate delivered to the Trustee, or established
in one or more indentures supplemental hereto from time to time authorized
by or pursuant to a Board Resolution delivered to the Trustee:
(1) the title of the Debentures of the series (which shall
distinguish the Debentures of that series from all other Debentures);
(2) the aggregate principal amount of the Debentures of that
series which may be authenticated and delivered under this Indenture
(except for Debentures authenticated and delivered upon registration
of transfer of, in exchange for or in lieu of other Debentures of that
series);
(3) the date or dates on which the principal of the Debentures
of that series is payable;
(4) the rate or rates at which the Debentures of that series
shall bear interest or the manner of calculation of such rate or
rates, if any;
IPS-29952.2 6
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(5) the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest will be payable or the
manner of determination of such Interest Payment Dates and the record
date for the determination of holders to whom interest is payable on
any such Interest Payment Dates;
(6) the right, if any, to extend the interest payment periods
and the duration of such extension;
(7) the period or periods within which, the price or prices at
which and the terms and conditions upon which Debentures of that
series may be redeemed, in whole or in part, at the option of the
Company;
(8) the obligation, if any, of the Company to redeem or purchase
Debentures of that series pursuant to any sinking fund or analogous
provisions (including payments made in cash in anticipation of future
sinking fund obligations) or at the option of a holder thereof and the
period or periods within which, the price or prices at which and the
terms and conditions upon which, Debentures of that series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(9) the form of the Debentures of that series, including the
form of the Certificate of Authentication for that series;
(10) if denominations of other than $25 or any integral multiple
thereof, the denominations in which Debentures of that series shall be
issuable;
(11) any and all other terms with respect to that series (which
terms shall not be inconsistent with the terms of this Indenture); and
(12) whether the Debentures are issuable as a Global Debenture
and, in such case, the identity of the Depository for that series.
All Debentures of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to any such Board Resolution or by any such officer designated in
a Board Resolution or in any indentures supplemental hereto.
If any of the terms of a series are established by action taken
pursuant to a Board Resolution or by an officer designated in a Board
Resolution, a copy of an appropriate record of such action or such
designation shall be certified by the Secretary or an Assistant Secretary
of the Company and delivered to the Trustee at or prior to the delivery of
the Officers' Certificate setting forth the terms of that series.
IPS-29952.2 7
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SECTION 2.02. The Debentures of any series and the Certificate of
Authentication to be borne by such Debentures shall be substantially of
the tenor and purport as set forth in one or more indentures supplemental
hereto, or as provided in a Board Resolution, or as established by an
officer designated in a Board Resolution, and as set forth in an Officers'
Certificate, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the Company may deem appropriate and
as are not inconsistent with the provisions of this Indenture, or as may
be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any securities exchange
on which Debentures of that series may be listed, or to conform to usage.
SECTION 2.03. The Debentures of a particular series shall bear
interest payable on the dates and at the rate or rates specified with
respect to that series. The principal of and the interest on the
Debentures of any series, as well as any premium thereon in case of
redemption thereof prior to maturity, shall be payable in the coin or
currency of the United States of America which at the time is legal tender
for public and private debt, at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, the City and
State of New York (which, unless changed, as provided in Section 4.02,
shall be a corporate trust office or agency of the Trustee). At the
Company's option, payments on the Debentures of any series may also be
made (i) by checks mailed by the Trustee to the holders entitled thereto
at their registered addresses or (ii) to a holder who has delivered a
written request to the Trustee at least 14 days prior to the relevant
Interest Payment Date electing to have payments made by wire transfer to a
designated account in the United States, by wire transfer of immediately
available funds to such designated account; provided that, in either case,
the payment of principal with respect to any Debenture will be made only
upon surrender of that Debenture to the Trustee. Each Debenture shall be
dated the date of its authentication. Interest on the Debentures shall be
computed on the basis of a 360-day year composed of twelve 30-day months
and, for any period shorter than a full calendar month, on the basis of
the actual number of days elapsed in such period.
The interest installment on any Debenture which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date for
Debentures of that series shall be paid to the person in whose name that
Debenture (or one or more Predecessor Debentures) is registered at the
close of business on the Regular Record Date (as defined below) for such
interest installment. In the event that any Debenture of a particular
series or portion thereof is called for redemption and the redemption date
is subsequent to a Regular Record Date with respect to any Interest
Payment Date and prior to such Interest Payment Date, interest on that
Debenture will be paid upon presentation and surrender of that Debenture
as provided in Section 3.03.
IPS-29952.2 8
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Any interest on any Debenture which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date for Debentures of
the same series (herein called "Defaulted Interest") shall forthwith cease
to be payable to the registered holder on the relevant Regular Record Date
by virtue of having been such holder; and such Defaulted Interest shall be
paid by the Company, at its election, as provided in clause (1) or clause
(2) below:
(1) The Company may make payment of any Defaulted Interest on
Debentures to the persons in whose names such Debentures (or their
respective Predecessor Debentures) are registered at the close of
business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner: the Company
shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each such Debenture 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 nor less than 10 days prior
to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such special record date
and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the special
record date therefor to be mailed, first-class postage prepaid, to
each Debentureholder at his or her address as it appears in the
Debenture Register (as hereinafter defined), 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 mailed as aforesaid, such Defaulted Interest shall be paid to the
persons in whose names such Debentures (or their respective
Predecessor Debentures) are registered on such special record date and
shall be no longer payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on
any Debentures in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Debentures 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.
Unless otherwise established and set forth pursuant to Section 2.01
hereof, the term "Regular Record Date" as used in this
IPS-29952.2 9
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Section with respect to a series of Debentures with respect to any
Interest Payment Date for that series shall mean either the 15th day of
the month immediately preceding the month in which an Interest Payment
Date established for that series pursuant to Section 2.01 hereof shall
occur, if such Interest Payment Date is the first day of a month, or the
last day of the month immediately preceding the month in which an Interest
Payment Date established for such series pursuant to Section 2.01 hereof
shall occur, if such Interest Payment Date is the 15th day of a month,
whether or not such date is a Business Day.
Subject to the foregoing provisions of this Section, each Debenture of
a series delivered under this Indenture upon transfer of or in exchange
for or in lieu of any other Debenture of such series shall carry the
rights to interest accrued and unpaid, and to accrue, that were carried by
such other Debenture.
SECTION 2.04. The Debentures shall, subject to the provisions of
Section 2.06, be printed with or without fully or partially steel engraved
borders, or legibly typed, or otherwise prepared as the proper officers of
the Company may determine, and shall be signed on behalf of the Company by
its Chief Executive Officer, President or one of its Vice Presidents,
under its corporate seal attested by its Secretary or one of its Assistant
Secretaries. The signature of the Chief Executive Officer, President or a
Vice President and/or the signature of the Secretary or an Assistant
Secretary in attestation of the corporate seal, upon the Debentures, may
be in the form of a facsimile signature of a present or any future Chief
Executive Officer, President or Vice President and of a present or any
future Secretary or Assistant Secretary and may be imprinted or otherwise
reproduced on the Debentures and for that purpose the Company may use the
facsimile signature of any person who shall have been such an officer,
notwithstanding the fact that at the time the Debentures shall be
authenticated and delivered or disposed of that person shall have ceased
to hold such office. The seal of the Company may be in the form of a
facsimile or the seal of the Company and may be impressed, affixed,
imprinted or otherwise reproduced on the Debentures.
Only such Debentures as shall bear thereon a Certificate of
Authentication substantially in the form established for such Debentures,
executed manually by an authorized signatory of the Trustee, or by any
Authenticating Agent with respect to such Debentures, shall be entitled to
the benefits of this Indenture or be valid or obligatory for any purpose.
Such Certificate of Authentication executed by the Trustee, or by any
Authenticating Agent appointed by the Trustee with respect to such
Debentures, upon any Debenture executed by the Company shall be conclusive
evidence that the Debenture so authenticated has been duly authenticated
and delivered hereunder and that the holder is entitled to the benefits of
this Indenture.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debentures of
IPS-29952.2 10
<PAGE>
any series executed by the Company to the Trustee for authentication upon
original issuance, together with a Company Order for the authentication
and delivery of such Debentures, and the Trustee in accordance with such
Company Order shall authenticate and deliver such Debentures.
In authenticating such Debentures and accepting the additional
responsibilities under this Indenture in relation to such Debentures, the
Trustee shall be entitled to receive, and (subject to Section 7.01) shall
be fully protected in relying upon, (i) an Opinion of Counsel and (ii) an
Officers' Certificate, each stating that the form and terms thereof have
been established in conformity with the provisions of this Indenture.
Each Opinion of Counsel and Officers' Certificate delivered pursuant to
this Section 2.04 shall include all statements prescribed by Section
13.05(a) and Section 13.05(b) hereof.
The Trustee shall not be required to authenticate such Debentures if
the issue of such Debentures pursuant to this Indenture will, in the good
faith judgment of the Trustee, affect the Trustee's own rights, duties or
immunities under the Debentures and this Indenture or otherwise in a
manner that is not reasonably acceptable to the Trustee.
SECTION 2.05. (a) Debentures of any series may be exchanged upon
presentation thereof at the office or agency of the Company designated for
such purpose in the Borough of Manhattan, the City and State of New York,
for other Debentures of such series of authorized denominations, and for a
like aggregate principal amount, upon payment of a sum sufficient to cover
any tax or other governmental charge in relation thereto, all as provided
in this Section. In respect of any Debentures so surrendered for
exchange, the Company shall execute, the Trustee shall authenticate and
such office or agency shall deliver in exchange therefor the Debenture or
Debentures of the same series which the Debentureholder making the
exchange shall be entitled to receive, bearing numbers not
contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its office or
agency designated for such purpose in the Borough of Manhattan, the City
and State of New York, or such other location designated by the Company, a
register or registers (herein referred to as the "Debenture Register") in
which, subject to such reasonable regulations as it may prescribe, the
Company shall register the Debentures and the transfers of Debentures as
in this Article provided and which at all reasonable times shall be open
for inspection by the Trustee. The registrar for the purpose of
registering Debentures and transfer of Debentures as herein provided (the
"Debenture Registrar") shall be the Trustee until a replacement is
appointed by the Company.
Upon surrender for transfer of any Debenture at the office or agency
of the Company designated for such purpose in the Borough of Manhattan,
the City and State of New York, the Company shall execute, the Trustee
shall authenticate and such office or agency
IPS-29952.2 11
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shall deliver in the name of the transferee or transferees a new
Debenture or Debentures of the same series as the Debenture presented for
a like aggregate principal amount.
All Debentures presented or surrendered for exchange or registration
of transfer, as provided in this Section, shall be accompanied (if so
required by the Company or the Debenture Registrar) by a written
instrument or instruments of transfer, in form satisfactory to the Company
and the Debenture Registrar, duly executed by the registered holder or by
an attorney of the registered holder duly authorized in writing by the
registered holder.
(c) Except as provided in the first paragraph of Section 2.07, no
service charge shall be made for any exchange or registration of transfer
of Debentures, or issue of new Debentures in case of partial redemption of
any series, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge in relation thereto, other than
exchanges pursuant to Section 2.06, Section 3.03 and Section 9.04 not
involving any transfer.
(d) The Company shall neither be required (i) to issue, exchange or
register the transfer of any Debentures of any series during a period
beginning at the opening of business 15 days before the day of selection
for redemption of Debentures of that series and ending at the close of
business on the earliest date on which the relevant notice of redemption
is deemed to have been given to all holders of Debentures of that series
to be redeemed, nor (ii) to register the transfer of or exchange any
Debentures of any series or portions thereof called for redemption. The
provisions of this Section 2.05 are, with respect to any Global Debenture,
subject to Section 2.11 hereof.
SECTION 2.06. Pending the preparation of definitive Debentures of any
series, the Company may execute, and the Trustee shall authenticate and
deliver, temporary Debentures (printed, lithographed or typewritten) of
any authorized denomination, and substantially in the form of the
definitive Debentures in lieu of which they are issued, but with such
omissions, insertions and variations as may be appropriate for temporary
Debentures, all as may be determined by the Company. Every temporary
Debenture of any series shall be executed by the Company and be
authenticated by the Trustee upon the same conditions and in substantially
the same manner, and with like effect, as the definitive Debentures of
that series in accordance with the terms of Section 2.04 hereof. Without
unnecessary delay the Company will execute and will furnish definitive
Debentures of such series and thereupon any or all temporary Debentures of
that series may be surrendered in exchange therefor (without charge to the
holders), at the office or agency of the Company designated for the
purpose in the Borough of Manhattan, the City and State of New York, and
the Trustee shall authenticate and such office or agency shall deliver in
exchange for such temporary Debentures an equal aggregate principal amount
of definitive Debentures of that series, unless the Company advises
IPS-29952.2 12
<PAGE>
the Trustee to the effect that definitive Debentures need not be executed
and furnished until further notice from the Company. Until so exchanged,
the temporary Debentures of that series shall be entitled to the same
benefits under this Indenture as definitive Debentures of that series
authenticated and delivered hereunder.
SECTION 2.07. In case any temporary or definitive Debenture shall
become mutilated or be destroyed, lost or stolen, the Company (subject to
the next succeeding sentence) shall execute, and upon its request the
Trustee (subject as aforesaid) shall authenticate and deliver, a new
Debenture of the same series bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated Debenture, or
in lieu of and in substitution for the Debenture so destroyed, lost or
stolen. In every case the applicant for a substituted Debenture shall
furnish to the Company and to the Trustee such security or indemnity as
may be required by them to save each of them harmless and, in every case
of destruction, loss or theft, the applicant shall also furnish to the
Company and to the Trustee evidence to their satisfaction of the
destruction, loss or theft of the applicant's Debenture and of the
ownership thereof. The Trustee may authenticate any such substituted
Debenture and deliver the same upon the written order of the Company.
Upon the issuance of any substituted Debenture, the Company may require
the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith. In
case any Debenture which has matured or is about to mature or has been
called for redemption shall become mutilated or be destroyed, lost or
stolen, the Company may, instead of issuing a substitute Debenture, pay or
authorize the payment of the same (without surrender thereof except in the
case of a mutilated Debenture) if the applicant for such payment shall
furnish to the Company and to the Trustee such security or indemnity as
they may require to save them harmless and, in case of destruction, loss
or theft, evidence to the satisfaction of the Company and the Trustee of
the destruction, loss or theft of such Debenture and of the ownership
thereof.
Every Debenture issued pursuant to the provisions of this Section in
substitution for any Debenture which is mutilated, destroyed, lost or
stolen shall constitute an additional contractual obligation of the
Company, whether or not the mutilated, destroyed, lost or stolen Debenture
shall be found at any time, or be enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately
with any and all other Debentures of the same series duly issued
hereunder. All Debentures shall be held and owned upon the express
condition that the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Debentures,
and shall preclude (to the extent lawful) any and all other rights or
remedies, notwithstanding any law or statute existing or hereafter enacted
to the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
IPS-29952.2 13
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SECTION 2.08. All Debentures surrendered for the purpose of payment,
redemption, exchange or registration of transfer shall, if surrendered to
the Company or any paying agent, be delivered to the Trustee for
cancellation, or, if surrendered to the Trustee, shall be canceled by it,
and no Debentures shall be issued in lieu thereof except as expressly
required or permitted by any of the provisions of this Indenture. On
request of the Company, the Trustee shall deliver to the Company canceled
Debentures held by the Trustee. In the absence of such request the
Trustee may dispose of canceled Debentures in accordance with its standard
procedures. If the Company shall otherwise acquire any of the Debentures,
however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Debentures unless and
until the same are delivered to the Trustee for cancellation.
SECTION 2.09. Nothing in this Indenture or in the Debentures, express
or implied, shall give or be construed to give to any person, firm or
corporation, other than the parties hereto and the holders of the
Debentures, any legal or equitable right, remedy or claim under or in
respect of this Indenture, or under any covenant, condition or provision
herein contained; all such covenants, conditions and provisions being for
the sole benefit of the parties hereto and of the holders of the
Debentures.
SECTION 2.10. So long as any of the Debentures of any series remain
outstanding there may be an Authenticating Agent for any or all such
series of Debentures which the Trustee shall have the right to appoint.
Said Authenticating Agent shall be authorized to act on behalf of the
Trustee to authenticate Debentures of such series issued upon exchange,
transfer or partial redemption thereof, and Debentures 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.
All references in this Indenture to the authentication of Debentures of
any series by the Trustee shall be deemed to include authentication by an
Authenticating Agent for such series except for authentication upon
original issuance or pursuant to Section 2.07 hereof. Each Authenticating
Agent shall be acceptable to the Company and shall be a corporation which
has a combined capital and surplus, as most recently reported or
determined by it, of $50 million, and which is otherwise authorized under
applicable laws to conduct a trust business and is subject to supervision
or examination by federal or state authorities. If at any time any
Authenticating Agent shall cease to be eligible in accordance with these
provisions, it shall resign immediately.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may
at any time (and upon request by the Company shall) terminate the agency
of any Authenticating Agent by giving written notice of termination to
such Authenticating Agent and to the Company. Upon resignation,
termination or cessation of eligibility of any Authenticating Agent, the
Trustee may appoint an eligible successor Authenticating Agent acceptable
to the Company. Any
IPS-29952.2 14
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successor Authenticating Agent, upon acceptance of its appointment
hereunder, shall become vested with all the rights, powers and duties of
its predecessor hereunder as if originally named as an Authenticating
Agent pursuant hereto.
SECTION 2.11. (a) If the Company shall establish pursuant to Section
2.01 that the Debentures of a particular series are to be issued as Global
Debentures, then the Company shall execute and the Trustee shall, in
accordance with Section 2.04, authenticate and deliver, one or more Global
Debentures which (i) shall represent, and shall be denominated in an
amount equal to the aggregate principal amount of, all of the Outstanding
Debentures of that series, (ii) shall be registered in the name of the
Depository or its nominee, (iii) shall be delivered by the Trustee to the
Depository or pursuant to the Depository's instruction and (iv) if
required by any law, rule or regulation or if any of the Depository, the
Trustee or the Company shall require, shall bear a legend substantially to
the following effect: "Except as otherwise provided in Section 2.11 of the
Indenture, this Debenture may be transferred, in whole but not in part,
only to another nominee of the Depository or to a successor Depository or
to a nominee of such successor Depository."
(b) Notwithstanding the provisions of Section 2.05 and except as set
forth in Section 2.11(c) or (d), Global Debentures of a series may be
transferred, in whole but not in part and in the manner provided in
Section 2.05, only to another nominee of the Depository for that series, a
successor Depository for that series selected or approved by the Company
or a nominee of that successor Depository.
(c) (i) Except as otherwise set forth in any indenture supplemental
to this Indenture with respect to any series of Debentures issued
hereunder, an interest in any Global Debenture shall be
exchangeable at the option of the beneficial owner of such
interest in such Global Debenture for a Debenture or Debentures
in certificated form registered in the name of any holder other
than the Depository or its nominee at any time following issuance
of such Global Debenture.
(ii) A beneficial owner of an interest in any Global Debenture
desiring to exchange such beneficial interest for a Debenture or
Debentures in certificated form shall instruct the Depository,
through the Depository's direct or indirect participants or
otherwise, to request such exchange on such beneficial owner's
behalf and to provide a written order containing registration
instructions to the Trustee. Upon receipt by the Trustee of
electronic or written instructions from the Depository on behalf
of such beneficial owner, the Trustee shall cause, in accordance
with the standing instructions and procedures existing between
the Trustee and the Depository, the aggregate principal amount of
such Global Debenture to be reduced by the principal amount of
such beneficial
IPS-29952.2 15
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interest so exchanged and shall appropriately reflect such reduction of
the aggregate principal amount of such Global Debenture as described in
paragraph (iii) of this Section 2.11(c). Following such reduction, the
Trustee shall authenticate and deliver to such beneficial owner or a
transferee of such beneficial owner, as the case may be, a Debenture or
Debentures in certificated form previously executed by the Company as
described in Section 2.05(a) and registered in such names and authorized
denominations as the Depository, pursuant to such instructions of the
beneficial owner, shall instruct the Trustee.
(iii) Upon any exchange of a portion of any Global Debenture for
a definitive Debenture or Debentures, the Debenture Registrar
shall reflect the reduction of the principal amount of such
Global Debenture by the principal amount of such beneficial
interest so exchanged on the Debenture Register. Until exchanged
in full for definitive Debentures, such Global Debenture shall in
all respects be entitled to the same benefits under the Indenture
as the definitive Debentures authenticated and delivered
hereunder.
(d) (i) Except as otherwise set forth in any indenture supplemental
to this Indenture with respect to any series of Debentures issued
hereunder, if and so long as the Debentures of any series are
issued and Outstanding as Global Debentures, any Debenture or
Debentures of such series in certificated form shall be
exchangeable at the option of the registered holder thereof for a
beneficial interest in such Global Debenture at any time
following the exchange of such Global Debenture for such
Debenture or Debentures in certificated form pursuant to
Section 2.11(c).
(ii) A registered holder of a Debenture or Debentures in
certificated form desiring to exchange such Debenture or
Debentures for a beneficial interest in such Global Debenture
shall instruct the Depository, through the Depository's direct or
indirect participants or otherwise, to request such exchange on
such registered holder's behalf and to provide a written order
containing registration instructions to the Trustee. Upon
receipt by the Trustee of electronic or written instructions from
the Depository, and upon presentation to the Trustee of such
Debenture or Debentures in certificated form, the Trustee shall
cause, in accordance with the standing instructions and
procedures existing between the Trustee and the Depository, the
aggregate principal amount of such Global Debenture to be
increased by the principal amount of such Debenture or Debentures
in certificated form so exchanged and shall appropriately reflect
such increase of the aggregate principal amount of the Global
IPS-29952.2 16
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Debenture as described in paragraph(iii) of this Section 2.11(d).
(iii) Upon any exchange of a Debenture or Debentures in
certificated form for a beneficial interest in such Global
Debenture, the Debenture Registrar shall reflect the increase of
the principal amount of such Global Debenture by the principal
amount of such Debenture or Debentures in certificated form so
exchanged on the Debenture Register.
(e) If at any time the Depository for a series of Debentures notifies
the Company that it is unwilling or unable to continue as Depository for
that series or if at any time the Depository for that series shall no
longer be registered or in good standing under the Exchange Act or other
applicable statute or regulation and a successor Depository for that
series is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such condition as the case may
be, this Section 2.11 shall no longer apply to the Debentures of that
series and the Company will execute and, subject to Section 2.05, the
Trustee will authenticate and deliver Debentures of that series in
definitive registered form without coupons, in authorized denominations,
and in an aggregate principal amount equal to the principal amount of the
Global Debenture of that series in exchange for such Global Debenture. In
addition, the Company may at any time determine that the Debentures of any
series shall no longer be represented by a Global Debenture and that the
provisions of this Section 2.11 shall no longer apply to the Debentures of
that series. In that event the Company will execute and, subject to
Section 2.05, the Trustee, upon receipt of an Officers' Certificate
evidencing such determination by the Company, will authenticate and
deliver Debentures of that series in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount
equal to the principal amount of the Global Debenture of such series in
exchange for such Global Debenture. Upon the exchange of the Global
Debenture for such Debentures in definitive registered form without
coupons, in authorized denominations, the Global Debentures shall be
canceled by the Trustee. Such Debentures in definitive registered form
issued in exchange for the Global Debenture pursuant to Section 2.11(c)
shall be registered in such names and in such authorized denominations as
the Depository, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Debenture Registrar. The
Trustee shall deliver such Debentures to the Depository for delivery to
the persons in whose names such Debentures are so registered.
ARTICLE THREE
Redemption of Debentures and Sinking Fund Provisions
SECTION 3.01. The Company may redeem the Debentures of any series
issued hereunder on and after the dates and in accordance with the terms
established for that series pursuant to Section 2.01 hereof.
IPS-29952.2 17
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SECTION 3.02. (a) In case the Company shall desire to exercise such
right to redeem all or, as the case may be, a portion of the Debentures of
any series in accordance with the right reserved so to do, it shall give
notice of such redemption to holders of the Debentures of the series to be
redeemed by mailing, first class postage prepaid, a notice of such
redemption not less than 30 days and not more than 60 days before the date
fixed for redemption of that series to such Debentureholders at their last
addresses as they shall appear upon the Debenture Register. Any notice
which is mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the registered holder
receives the notice. In any case, failure duly to give such notice to the
holder of any Debenture of any series designated for redemption in whole
or in part, or any defect in the notice shall not affect the validity of
the proceedings for the redemption of any other Debentures of that series
or any other series. In the case of any redemption of Debentures prior to
the expiration of any restriction on such redemption provided in the terms
of such Debentures or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing compliance
with any such restriction.
Each such notice of redemption shall specify the date fixed for
redemption and the redemption price at which Debentures of that series are
to be redeemed, and shall state that payment of the redemption price of
the Debentures to be redeemed will be made at the office or agency of the
Company in the Borough of Manhattan, the City and State of New York, upon
presentation and surrender of such Debentures, that interest accrued to
the date fixed for redemption will be paid as specified in that notice,
that from and after that date interest will cease to accrue, and that, if
such is the case, the redemption is for a sinking fund. If less than all
the Debentures of a series are to be redeemed, the notice to the holders
of Debentures of that series to be redeemed shall specify the particular
Debentures to be so redeemed. In case any Debenture is to be redeemed in
part only, the notice which relates to such Debenture shall state the
portion of the principal amount thereof to be redeemed, and shall state
that on and after the redemption date, upon surrender of such Debenture, a
new Debenture or Debentures of that series in principal amount equal to
the unredeemed portion thereof will be issued.
(b) The Company shall give the Trustee at least 45 days' advance
notice of the date fixed for redemption (unless shorter notice shall be
permitted by the Trustee) as to the aggregate principal amount of
Debentures of the series to be redeemed, and thereupon the Trustee shall
select, by lot or in such other manner as it shall deem appropriate and
fair in its discretion and which may provide for the selection of a
portion or portions (equal to $25 or any integral multiple thereof) of the
principal amount of such Debentures of a denomination larger than $25, the
Debentures to be redeemed and shall thereafter promptly notify the Company
in writing of the numbers of the Debentures to be redeemed.
IPS-29952.2 18
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The Company may, if and whenever it shall so elect, by delivery of a
Company Request, instruct the Trustee or any paying agent to call all or
any part of the Debentures of a particular series for redemption and to
give notice of redemption in the manner set forth in this Section, such
notice to be in the name of the Company, the name of the Trustee or such
paying agent as the Trustee may deem advisable. In any case in which
notice of redemption is to be given by the Trustee or any such paying
agent, the Company shall deliver or cause to be delivered to, or permit to
remain with, the Trustee or such paying agent, as the case may be, such
Debenture Register, transfer books or other records, or suitable copies or
extracts therefrom, sufficient to enable the Trustee or such paying agent
to give any notice by mail that may be required under the provisions of
this Section.
SECTION 3.03. (a) If the giving of notice of redemption shall have
been completed as above provided, the Debentures or portions of Debentures
of the series to be redeemed specified in such notice shall become due and
payable on the date and at the place stated in such notice at the
applicable redemption price, together with interest accrued to the date
fixed for redemption, and interest on such Debentures or portions of
Debentures shall cease to accrue on and after the date fixed for
redemption, unless the Company shall default in the payment of such
redemption price and accrued interest with respect to any such Debenture
or portion thereof. On presentation and surrender of such Debentures on
or after the date fixed for redemption at the place of payment specified
in the notice, such Debentures shall be paid and redeemed at the
applicable redemption price for such series, together with interest
accrued thereon to the date fixed for redemption (but if the date fixed
for redemption is an Interest Payment Date, the interest installment
payable on such date shall be payable to the registered holder at the
close of business on the applicable Regular Record Date pursuant to
Section 2.03).
(b) Upon presentation of any Debenture of such series which is to be
redeemed in part only, the Company shall execute, the Trustee shall
authenticate and the office or agency where the Debenture is presented
shall deliver to the holder thereof, at the expense of the Company, a new
Debenture or Debentures of the same series, of authorized denominations in
principal amount equal to the unredeemed portion of the Debenture so
presented.
SECTION 3.04. The provisions of Sections 3.04, 3.05 and 3.06 shall
apply to any sinking fund for the retirement of Debentures of a series,
except as otherwise specified pursuant to Section 2.01 for Debentures of
that series.
The minimum amount of any sinking fund payment provided for by the
terms of Debentures of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount
provided for by the terms of Debentures of any series is herein referred
to as an "optional sinking fund payment". If provided for by the terms of
Debentures of any series, the cash amount of any sinking fund payment may
be subject to reduction as
IPS-29952.2 19
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provided in Section 3.05. Each sinking fund payment shall be applied to
the redemption of Debentures of any series as provided for by the terms of
Debentures of that series.
SECTION 3.05. The Company (i) may deliver Outstanding Debentures of a
series (other than any previously called for redemption) and (ii) may
apply as a credit Debentures of a series which have been redeemed either
at the election of the Company pursuant to the terms of such Debentures or
through the application of permitted optional sinking fund payments
pursuant to the terms of such Debentures, in each case in satisfaction of
all or any part of any sinking fund payment with respect to the Debentures
of such series required to be made pursuant to the terms of such
Debentures as provided for by the terms of that series; provided that such
Debentures have not been previously so credited. Such Debentures shall be
received and credited for such purpose by the Trustee at the redemption
price specified in such Debentures for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 3.06. Not less than 45 days prior to each sinking fund
payment date for any series of Debentures, the Company will deliver to the
Trustee an Officers' Certificate specifying the amount of the next ensuing
sinking fund payment for that series pursuant to the terms of that series,
the portion thereof, if any, which is to be satisfied by delivering and
crediting Debentures of that series pursuant to Section 3.05 and the basis
for such credit and will, together with such Officers' Certificate,
deliver to the Trustee any Debentures to be so delivered. Not less than
30 days before each such sinking fund payment date the Trustee shall
select the Debentures to be redeemed upon such sinking fund payment date
in the manner specified in Section 3.02 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 3.02. Such notice having been duly given,
the redemption of such Debentures shall be made upon the terms and in the
manner stated in Section 3.03.
ARTICLE FOUR
Particular Covenants of the Company
The Company covenants and agrees for each series of the Debentures as
follows:
SECTION 4.01. The Company will duly and punctually pay or cause to be
paid the principal of (and premium, if any) and interest on the Debentures
of that series at the time and place and in the manner provided herein,
and established with respect to such Debentures.
SECTION 4.02. So long as any series of the Debentures remains
Outstanding, the Company agrees to maintain an office or agency in the
Borough of Manhattan, the City and State of New York (which, unless
changed as provided in this Section 4.02, shall be a corporate trust
office or agency of the Trustee), with respect to each such series, and at
such other location or locations, as may
IPS-29952.2 20
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be designated by the Company, where (i) Debentures of that series may be
presented for payment, (ii) Debentures of that series may be presented as
hereinabove authorized for registration of transfer and exchange and (iii)
notices and demands to or upon the Company in respect of the Debentures of
that series and this Indenture may be given or served, such designation to
continue with respect to such office or agency until the Company shall, by
Company Order delivered to the Trustee, designate some other office or
agency for such purposes or any of them. If at any time the Company shall
fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, notices
and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to
receive all such presentations, notices and demands.
SECTION 4.03. (a) If the Company shall appoint one or more paying
agents, other than the Trustee, for all or any series of the Debentures,
the Company will cause each such paying agent to execute and deliver to
the Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section, that it will:
(1) hold all sums held by it as such agent for the payment of
the principal of (and premium, if any) or interest on the Debentures
of that series (whether such sums have been paid to it by the Company
or by any other obligor of such Debentures) in trust for the benefit
of the persons entitled thereto;
(2) give the Trustee notice of any failure by the Company (or by
any other obligor of such Debentures) to make any payment of the
principal of (and premium, if any) or interest on the Debentures of
that series when the same shall be due and payable;
(3) at any time during the continuance of any failure referred
to in the preceding paragraph (a)(2) above, upon the written request
of the Trustee, forthwith pay to the Trustee all sums so held in trust
by such paying agent; and
(4) perform all other duties of paying agent as set forth in
this Indenture.
(b) If the Company shall act as its own paying agent with respect to
any series of the Debentures, it will, on or before each due date of the
principal of (and premium, if any) or interest on Debentures of that
series, set aside, segregate and hold in trust for the benefit of the
persons entitled thereto a sum sufficient to pay such principal (and
premium, if any) or interest so becoming due on Debentures of that series
until such sums shall be paid to such persons or otherwise disposed of as
herein provided and will promptly notify the Trustee of such action, or
any failure (by it or any other obligor on such Debentures) to take such
action. Whenever the Company shall have one or more paying agents for any
IPS-29952.2 21
<PAGE>
series of Debentures, it will, prior to each due date of the principal of
(and premium, if any) or interest on any Debentures of that series,
deposit with the paying agent a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due, such sum to be held in trust
for the benefit of the persons entitled to such principal, premium or
interest, and (unless such paying agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
(c) Anything in this Section to the contrary notwithstanding, (i) the
agreement to hold sums in trust as provided in this Section is subject to
the provisions of Section 11.06 and (ii) the Company may at any time, for
the purpose of obtaining the satisfaction and discharge of this Indenture
or for any other purpose, pay, or direct any paying agent to pay, to the
Trustee all sums held in trust by the Company or such paying agent, such
sums to be held by the Trustee upon the same terms and conditions as those
upon which such sums were held by the Company or such paying agent; and,
upon such payment by any paying agent to the Trustee, such paying agent
shall be released from all further liability with respect to such sums.
SECTION 4.04. The Company, whenever necessary to avoid or fill a
vacancy in the office of Trustee, will appoint, in the manner provided in
Section 7.10, a Trustee, so that there shall at all times be a Trustee
hereunder.
SECTION 4.05. The Company will not, while any of the Debentures
remain outstanding, consolidate with, merge into, merge into itself or
sell or convey all or substantially all of its property to any other
company, unless the provisions of Article Ten hereof are complied with.
SECTION 4.06. If there shall have occurred any event that would, with
the giving of notice or the passage of time, or both, constitute an Event
of Default, or the Company shall have given notice of its selection of an
extended interest payment period as provided in this Indenture and such
period, or any extension thereof, shall be continuing, the Company will
not, until all Defaulted Interest on the Debentures and all interest
accrued on the Debentures during an extended interest payment period and
all principal and premium, if any, then due and payable on the Debentures
shall have been paid in full, (i) declare, set aside or pay any dividend
or distribution on any capital stock of the Company, except for dividends
or distributions in shares of its capital stock or in rights to acquire
shares of its capital stock, or (ii) repurchase, redeem or otherwise
acquire, or make any sinking fund payment for the purchase or redemption
of, any shares of its capital stock (except by conversion into or exchange
for shares of its capital stock and except for a redemption, purchase or
other acquisition of shares of its capital stock made for the purpose of
an employee incentive plan or benefit plan of the Company or any of its
subsidiaries; provided, however, that any moneys deposited in any sinking
fund and not in violation of this provision may thereafter be applied to
the purchase or redemption
IPS-29952.2 22
<PAGE>
of such preferred stock in accordance with the terms of such sinking fund
without regard to the restrictions contained in this Section.
ARTICLE FIVE
Debentureholders' Lists and Reports by the Company
and the Trustee
SECTION 5.01. The Company will furnish or cause to be furnished to
the Trustee (a) on a monthly basis a list, in such form as the Trustee may
reasonably require, of the names and addresses of the holders of each
series of Debentures as of such Regular Record Date; provided that the
Company shall not be obligated to furnish or cause to furnish such list at
any time that the list shall not differ in any respect from the most
recent list furnished to the Trustee by the Company and (b) at such other
times as the Trustee may request in writing within 30 days after the
receipt by the Company of any such request, a list of similar form and
content as of a date not more than 15 days prior to the time such list is
furnished; provided, however, no such list need be furnished for any
series for which the Trustee shall be the Debenture Registrar.
SECTION 5.02. (a) The Trustee shall preserve, in as current a form as
is reasonably practicable, all information as to the names and addresses
of the holders of Debentures contained in the most recent list furnished
to it as provided in Section 5.01 and as to the names and addresses of
holders of Debentures received by the Trustee in its capacity as Debenture
Registrar (if acting in such capacity).
(b) The Trustee may destroy any list furnished to it as provided in
Section 5.01 upon receipt of a new list so furnished.
(c) In case three or more holders of Debentures of a series
(hereinafter referred to as "Applicants") apply in writing to the Trustee,
and furnish to the Trustee reasonable proof that each such Applicant has
owned a Debenture for a period of at least six months preceding the date
of such application, and such application states that the Applicants
desire to communicate with other holders of Debentures of that series or
holders of all Debentures with respect to their rights under this
Indenture or under such Debentures, and is accompanied by a copy of the
form of proxy or other communication which such Applicants propose to
transmit, then the Trustee shall, within five Business Days after the
receipt of such application, at its election, either:
(1) afford to such Applicants access to the information
preserved at the time by the Trustee in accordance with the provisions
of Section 5.02(a); or
(2) inform such Applicants as to the approximate number of
holders of Debentures of such series or of all Debentures, as the case
may be, whose names and addresses appear in the information preserved
at the time by the Trustee, in
IPS-29952.2 23
<PAGE>
accordance with the provisions of Section 5.02(a), and as to the
approximate cost of mailing to such Debentureholders the form of proxy or
other communication, if any, specified in such application.
(d) If the Trustee shall elect not to afford such Applicants access
to such information, the Trustee shall, upon the written request of such
Applicants, mail to each holder of that series or of all Debentures, as
the case may be, whose name and address appears in the information
preserved at the time by the Trustee in accordance with the provisions of
Section 5.02(a), a copy of the form of proxy or other communication which
is specified in such request, with reasonable promptness after a tender to
the Trustee of the material to be mailed and of payment, or provision for
the payment, of the reasonable expenses of mailing, unless within five
days after such tender, the Trustee shall mail to such Applicants and file
with the Commission, together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interests of the holders of
Debentures of that series or of all Debentures, as the case may be, or
would be in violation of applicable law. Such written statement shall
specify the basis of such opinion. If the Commission, after opportunity
for a hearing upon the objections specified in the written statement so
filed, shall enter an order refusing to sustain any of such objections or
if, after the entry of an order sustaining one or more of such objections,
the Commission shall find, after notice and opportunity for hearing, that
all the objections so sustained have been met and shall enter an order so
declaring, the Trustee shall mail copies of such material to all such
Debentureholders with reasonable promptness after the entry of such order
and the renewal of such tender; otherwise, the Trustee shall be relieved
of any obligation or duty to such Applicants respecting their application.
(e) Each and every holder of the Debentures, by receiving and holding
the same, agrees with the Company and the Trustee that neither the Company
nor the Trustee nor any paying agent nor any Debenture Registrar shall be
held accountable by reason of the disclosure of any such information as to
the names and addresses of the holders of Debentures in accordance with
the provisions of Section 5.02(c), regardless of the source from which
such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made
under Section 5.02(c).
SECTION 5.03 (a) The Company covenants and agrees to file with the
Trustee, within 15 days after the Company is required to file the same
with the Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; or if the
Company is not required to file information, documents or reports pursuant
to either of such sections, then to file with the Trustee and the
IPS-29952.2 24
<PAGE>
Commission, in accordance with the rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
Section 13 of the Exchange Act, in respect of a security listed and
registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations.
(b) The Company covenants and agrees to file with the Trustee
and the Commission, in accordance with the rules and regulations
prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the
Company with the conditions and covenants provided for in this Indenture
as may be required from time to time by such rules and regulations.
Delivery of such reports, documents and information to the Trustee under
this subsection (b) and Section 5.03(a) is for informational purposes only
and the Trustee's receipt of such shall not constitute constructive notice
of any information contained therein or determinable from information
contained therein, including the Company's compliance with any of the
covenants hereunder.
(c) The Company covenants and agrees to transmit to the
Debentureholders, in the manner and to the extent provided in
Section 313(c) of the Trust Indenture Act with respect to reports pursuant
to Section 313(a) of the Trust Indenture Act, within 30 days after the
filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
Section 5.03(a) and (b) as may be required by rules and regulations
prescribed from time to time by the Commission.
(d) The Company covenants and agrees to furnish to the Trustee, on or
before May 15 in each calendar year in which any of the Debentures are
Outstanding, or on or before such other day in each calendar year as the
Company and the Trustee may from time to time agree upon, and in no event
less often than annually, a Certificate as to knowledge of the Company's
compliance with all conditions and covenants under this Indenture and
which Certificate otherwise complies with the provisions of
Section 314(a)(4) of the Trust Indenture Act. For purposes of this
subsection (d), such compliance shall be determined without regard to any
period of grace or requirement of notice provided under this Indenture.
(e) The Company covenants and agrees, during any calendar year in
which original issue discount has accrued on Outstanding Debentures, to
file with the Trustee promptly at the end of each such calendar year a
written notice specifying the amount of original issue discount (including
daily rates and accrual periods) accrued on Outstanding Debentures as of
the end of such year.
SECTION 5.04. (a) On or before July 15 in each year in which any of
the Debentures are Outstanding, the Trustee shall transmit by mail, first-
class postage prepaid, to the Debentureholders, and to any other person
referred to in Section 313(c) of the Trust
IPS-29952.2 25
<PAGE>
Indenture Act, as their names and addresses appear upon the Debenture
Register, a brief report dated as of the preceding May 15, with respect to
any of the following events which may have occurred within the previous 12
months (but if no such event has occurred within such period no report
need be transmitted):
(1) any change to its eligibility under Section 7.09, and its
qualifications under Section 7.08;
(2) the creation of or any material change to a relationship
specified in paragraphs (1) through (10) of Section 310(b) of the
Trust Indenture Act;
(3) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof)
made by the Trustee (as such) which remain unpaid on the date of such
report, and for the reimbursement of which it claims or may claim a
lien or charge, prior to that of the Debentures, on any property or
funds held or collected by it as Trustee if such advances so remaining
unpaid aggregate more than 1/2 of 1% of the principal amount of the
Debentures Outstanding on the date of such report;
(4) any change to the amount, interest rate and maturity date of
all other indebtedness owing by the Company, or by any other obligor
on the Debentures, to the Trustee in its individual capacity, on the
date of such report, with a brief description of any property held as
collateral security therefor, except any indebtedness based upon a
creditor relationship arising in any manner described in paragraphs
(2), (3), (4) or (6) of Section 311(b) of the Trust Indenture Act.
(5) any change to the property and funds, if any, physically in
the possession of the Trustee as such on the date of such report;
(6) any release, or release and substitution, of property
subject to the lien, if any, of this Indenture (and the consideration
thereof, if any) which it has not previously reported;
(7) any additional issue of Debentures which the Trustee has not
previously reported; and
(8) any action taken by the Trustee in the performance of its
duties under this Indenture which it has not previously reported and
which in its opinion materially affects the Debentures or the
Debentures of any series, except any action in respect of a Default,
notice of which has been or is to be withheld by it in accordance with
the provisions of Section 6.07.
(b) The Trustee shall transmit by mail, first-class postage prepaid
to the Debentureholders and to any other person referred to
IPS-29952.2 26
<PAGE>
in Section 313(c) of the Trust Indenture Act, as their names and addresses
appear upon the Debenture Register, a brief report with respect to the
character and amount of any advances (and if the Trustee elects so to
state, the circumstances surrounding the making thereof) made by the
Trustee as such since the date of the last report transmitted pursuant to
the provisions of subsection (a) of this Section (or if no such report has
yet been so transmitted, since the date of execution of this Indenture),
for the reimbursement of which it claims or may claim a lien or charge
prior to that of the Debentures of any series on property or funds held or
collected by it as Trustee, and which it has not previously reported
pursuant to this subsection if such advances remaining unpaid at any time
aggregate more than 10% of the principal amount of Debentures of such
series Outstanding at such time, such report to be transmitted within 90
days after such time.
(c) A copy of each such report shall, at the time of such
transmission to Debentureholders, be filed by the Trustee with the
Company, with each securities exchange upon which any Debentures are
listed (if so listed) and also with the Commission. The Company agrees to
notify the Trustee when any Debentures become listed on any securities
exchange.
ARTICLE SIX
Remedies of the Trustee and Debentureholders
on Event of Default
SECTION 6.01. (a) Whenever used herein with respect to Debentures of
a particular series, "Event of Default" means any one or more of the
following events which has occurred and is continuing:
(1) failure in the payment of any installment of interest upon
any of the Debentures of that series, as and when the same shall
become due and payable, and continuance of such failure for a period
of 10 days;
(2) failure in the payment of the principal of (or premium, if
any, on) any of the Debentures of that series as and when the same
shall become due and payable, whether at maturity, upon redemption, by
acceleration or otherwise, or in any payment required by any sinking
or analogous fund established with respect to that series;
(3) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the
Company with respect to that series contained in such Debentures or
otherwise established with respect to that series of Debentures
pursuant to Section 2.01 hereof or contained in this Indenture (other
than a covenant or agreement which has been expressly included in this
Indenture solely for the benefit of one or more series of Debentures
other than such series) for a period of 90 days after the date on
which written notice of such failure, requiring the same to be
remedied and stating that such notice is a "Notice of
IPS-29952.2 27
<PAGE>
Default" hereunder, shall have been given to the Company by the
Trustee, by registered or certified mail, or to the Company and the
Trustee by the holders of at least 25% in principal amount of the
Debentures of that series at the time outstanding;
(4) a decree or order by a court having jurisdiction in the
premises shall have been entered adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking
liquidation or reorganization of the Company under the Federal
Bankruptcy Code or any other similar applicable federal or state law,
and such decree or order shall have continued unvacated and unstayed
for a period of 90 days; an involuntary case shall be commenced under
such Code in respect of the Company and shall continue undismissed for
a period of 90 days or an order for relief in such case shall have
been entered; or a decree or order of a court having jurisdiction in
the premises shall have been entered for the appointment on the ground
of insolvency or bankruptcy of a receiver, custodian, liquidator,
trustee or assignee in bankruptcy or insolvency of the Company or of
its property, or for the winding up or liquidation of its affairs, and
such decree or order shall have remained in force unvacated and
unstayed for a period of 90 days; or
(5) the Company shall institute proceedings to be adjudicated a
voluntary bankrupt, shall consent to the filing of a bankruptcy
proceeding against it, shall file a petition or answer or consent
seeking liquidation or reorganization under the Federal Bankruptcy
Code or other similar applicable federal or state law, shall consent
to the filing of any such petition or shall consent to the appointment
on the ground of insolvency or bankruptcy of a receiver or custodian
or liquidator or trustee or assignee in bankruptcy or insolvency of it
or of its property, or shall make an assignment for the benefit of
creditors.
(b) In each and every such case, the Company shall file with the
Trustee written notice of the occurrence of any Event of Default within
five Business Days of the Company's becoming aware of any such Event of
Default, and unless the principal of all the Debentures of that series
shall have already become due and payable, either the Trustee or the
holders of not less than 25% in aggregate principal amount of the
Debentures of that series then Outstanding hereunder, by notice in writing
to the Company (and to the Trustee if given by such Debentureholders), may
declare the principal of all the Debentures of that series to be due and
payable immediately, and upon any such declaration the same shall become
and shall be immediately due and payable, anything contained in this
Indenture or in the Debentures of that series or established with respect
to that series pursuant to Section 2.01 hereof to the contrary
notwithstanding.
(c) The provisions of subsection (b) of this Section, however, are
subject to the condition that if, at any time after
IPS-29952.2 28
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the principal of the Debentures of that series shall have been so declared
due and payable, and before any judgment or decree for the payment of the
moneys due shall have been obtained or entered as hereinafter provided,
the Company shall pay or shall deposit with the Trustee a sum sufficient
to pay all matured installments of interest upon all the Debentures of
that series and the principal of (and premium, if any, on) any and all
Debentures of that series which shall have become due otherwise than by
acceleration (with interest upon such principal and premium, if any, and,
to the extent that such payment is enforceable under applicable law, upon
overdue installments of interest, at the rate per annum expressed in the
Debentures of that series to the date of such payment or deposit) and the
amount payable to the Trustee under Section 7.06, and any and all Events
of Default under the Indenture, other than the nonpayment of principal on
Debentures of that series which shall not have become due by their terms,
shall have been remedied or waived as provided in Section 6.06, then and
in every such case the holders of a majority in aggregate principal amount
of the Debentures of that series then outstanding, by written notice to
the Company and to the Trustee, may rescind and annul such declaration and
its consequences; but no such rescission and annulment shall extend to or
shall affect any subsequent Default, or shall impair any right consequent
thereon.
(d) In case the Trustee shall have proceeded to enforce any right
with respect to Debentures of that series under this Indenture and such
proceedings shall have been discontinued or abandoned because of such
rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the
Company and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Company and the Trustee shall continue as though no such proceedings had
been taken.
SECTION 6.02. (a) The Company covenants that (1) in case of failure
in the payment of any installment of interest on any of the Debentures of
a series as and when the same shall have become due and payable, and such
failure shall have continued for a period of 10 Business Days, or (2) in
case of failure in the payment of the principal of (or premium, if any,
on) any of the Debentures of a series when the same shall have become due
and payable, whether upon maturity of the Debentures of a series or upon
redemption or upon acceleration or otherwise, or in any payment required
by any sinking or analogous fund established with respect to that series
as and when the same shall have become due and payable then, upon demand
of the Trustee, the Company will pay to the Trustee, for the benefit of
the holders of the Debentures of that series, the whole amount that then
shall have become due and payable on all such Debentures for principal
(and premium, if any) or interest, or both, as the case may be, with
interest upon the overdue principal (and premium, if any) and (to the
extent that payment of such interest is enforceable under applicable law)
upon overdue installments of interest at the rate per annum expressed in
the Debentures of that series; and, in addition thereto, such further
IPS-29952.2 29
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amount as shall be sufficient to cover the costs and expenses of
collection, and the amount payable to the Trustee under Section 7.06.
(b) In case the Company shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or
proceedings at law, or in equity, for the collection of the sums so due
and unpaid, and may prosecute any such action or proceeding to judgment or
final decree, and may enforce any such judgment or final decree against
the Company or other obligor upon the Debentures of that series and
collect in the manner provided by law out of the property of the Company
or other obligor upon the Debentures of that series wherever situated the
moneys adjudged or decreed to be payable.
(c) In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, readjustment, arrangement, composition or other judicial
proceedings affecting the Company, any other obligor on such Debentures or
the creditors or property of either, the Trustee shall have power to
intervene in such proceedings and take any action therein that may be
permitted by the court and shall (except as may be otherwise provided by
law) be entitled to file such proofs of claim and other papers and
documents as may be necessary or advisable in order to have the claims of
the Trustee and of the holders of Debentures of such series allowed for
the entire amount due and payable by the Company or such other obligor
under the Indenture at the date of institution of such proceedings and for
any additional amount which may become due and payable by the Company or
such other obligor after such date, and to collect and receive any moneys
or other property payable or deliverable on any such claim, and to
distribute the same after the deduction of the amount payable to the
Trustee under Section 7.06; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of the holders
of Debentures of that series to make such payments to the Trustee, and, in
the event that the Trustee shall consent to the making of such payments
directly to such Debentureholders, to pay to the Trustee any amount due it
under Section 7.06.
(d) All rights of action and of asserting claims under this
Indenture, or under any of the terms established with respect to
Debentures of any series, may be enforced by the Trustee without the
possession of any of such Debentures, or the production thereof at any
trial or other proceeding relative thereto, and any such suit or
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 payment to the Trustee of any amounts due under Section
7.06, be for the ratable benefit of the holders of the Debentures of that
series.
In case of an Event of Default hereunder, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any of
IPS-29952.2 30
<PAGE>
such rights, either at law, in equity in bankruptcy or otherwise, whether
for the specific enforcement of any covenant or agreement contained in the
Indenture or in aid of the exercise of any power granted in this
Indenture, or to enforce any other legal or equitable right vested in the
Trustee by this Indenture or by law.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize, consent to, accept or adopt on behalf of any Debentureholder
any plan of reorganization, arrangement, adjustment or composition
affecting the Debentures of any series or the rights of any holder thereof
or to authorize the Trustee to vote in respect of the claim of any
Debentureholder in any such proceeding.
SECTION 6.03. Any moneys collected by the Trustee pursuant to Section
6.02 with respect to a particular series of Debentures shall be applied in
the following order, at the date or dates fixed by the Trustee and, in
case of the distribution of such moneys on account of principal (or
premium, if any) or interest, upon presentation of the several Debentures
of that series, and stamping thereon the payment, if only partially paid,
and upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection and of all
amounts payable to the Trustee under Section 7.06;
SECOND: To the payment of the amounts then due and unpaid upon
Debentures of that series for principal (and premium, if any) and
interest, 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 Debentures for principal
(and premium, if any) and interest, respectively; and
THIRD: To the Company.
SECTION 6.04. No holder of any Debenture of any series shall have any
right by virtue or by availing of any provision of this Indenture to
institute any suit, action or proceeding in equity or at law upon or under
or with respect to this Indenture or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless such holder previously
shall have given to the Trustee written notice of an Event of Default and
of the continuance thereof with respect to Debentures of that series
specifying such Event of Default, as hereinbefore provided, and unless
also the holders of not less than 25% in aggregate principal amount of the
Debentures of such series then Outstanding shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own
name as trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity, shall
have failed to institute any such action, suit or proceeding; it being
understood and intended, and being expressly covenanted by the taker and
holder of every Debenture of that series with every other
IPS-29952.2 31
<PAGE>
such taker and holder and the Trustee, that no one or more holders of
Debentures of that series shall have any right in any manner whatsoever by
virtue or by availing of any provision of this Indenture to affect,
disturb or prejudice the rights of the holders of any other of such
Debentures, or to obtain or seek to obtain priority over or preference to
any other such holder, or to enforce any right under this Indenture,
except in the manner herein provided and for the equal, ratable and common
benefit of all holders of Debentures of that series. For the protection
and enforcement of the provisions of this Section 6.04, each and every
Debentureholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Notwithstanding any other provisions of this Indenture, however, the
right of any holder of any Debenture to receive payment of the principal
of (and premium, if any) and interest on such Debenture, as therein
provided, on or after the respective due dates expressed in such Debenture
(or in the case of redemption, on the redemption date), or to institute
suit for the enforcement of any such payment on or after such respective
dates or redemption date, shall not be impaired or affected without the
consent of such holder.
SECTION 6.05. (a) All powers and remedies given by this Article to
the Trustee or to the Debentureholders shall, to the extent permitted by
law, be deemed cumulative and not exclusive of any others thereof or of
any other powers and remedies available to the Trustee or the holders of
the Debentures, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in
this Indenture or otherwise established with respect to such Debentures.
(b) No delay or omission of the Trustee or of any holder of any of
the Debentures to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any such right
or power, or shall be construed as a waiver of any such Event of Default
or an acquiescence therein; and, subject to the provisions of Section
6.04, every power and remedy given by this Article or by law to the
Trustee or to the Debentureholders may be exercised from time to time, and
as often as shall be deemed expedient, by the Trustee or by the
Debentureholders.
SECTION 6.06. The holders of a majority in aggregate principal amount
of the Debentures of any series at the time Outstanding, determined in
accordance with Section 8.04, 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 that series; provided, however, that such direction shall
not be in conflict with any rule of law or with this Indenture or unduly
prejudicial to the rights of holders of Debentures of any other series at
the time Outstanding determined in accordance with Section 8.04 not
parties thereto. Subject to the provisions of Section 7.01, the Trustee
shall have the right to decline to follow
IPS-29952.2 32
<PAGE>
any such direction if the Trustee in good faith shall, by a Responsible
Officer of the Trustee, determine that the proceeding so directed might
involve the Trustee in personal liability. The holders of a majority in
aggregate principal amount of the Debentures of such series at the time
Outstanding affected thereby, determined in accordance with Section 8.04,
may on behalf of the holders of all of the Debentures of such series waive
any past default in the performance of any of the covenants contained
herein or established pursuant to Section 2.01 with respect to such series
and its consequences, except a default in the payment of the principal of
(premium, if any) or interest on, any of the Debentures of that series as
and when the same shall become due by the terms of such Debentures or a
call for redemption of Debentures of that series, which default may be
waived by the unanimous consent of the holders affected. Upon any such
waiver, the default covered thereby shall be deemed to be cured for all
purposes of this Indenture and the Company, the Trustee and the holders of
the Debentures of that series shall be restored to their former positions
and rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 6.07. The Trustee shall, within 90 days after the occurrence
of a Default with respect to a particular series, transmit by mail, first-
class postage prepaid, to the holders of Debentures of that series, as
their names and addresses appear upon the Debenture Register, notice of
all Defaults with respect to that series known to the Trustee, unless such
Defaults shall have been cured or waived before the giving of such notice;
provided, that, except in the case of a failure in the payment of the
principal of (or premium, if any) or interest on any of the Debentures of
that series or in the payment of any sinking fund installment established
with respect to that series, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive
committee, or a trust committee of directors and/or Responsible Officers
of the Trustee in good faith determine that the withholding of such notice
is in the interests of the holders of Debentures of that series; provided
further, that in the case of any Default of the character specified in
Section 6.01(a)(3) with respect to Debentures of that series, no such
notice to the holders of the Debentures of that series shall be given
until at least 30 days after the occurrence thereof.
For any and all purposes of this Indenture, the Trustee shall not be
deemed to have or charged with knowledge of any failure, Default or Event
of Default, except (i) a Default under Section 6.01(a)(1) or (a)(2) with
respect to a series of Debentures for which the Trustee is acting as
paying agent or (ii) any Default as to which the Trustee shall have
received written notice or a Responsible Officer charged with the
administration of this Indenture shall have actual knowledge or obtained
written notice.
SECTION 6.08. All parties to this Indenture agree, and each holder of
any Debentures by his or her acceptance thereof shall be deemed to have
agreed, that any court may in its discretion
IPS-29952.2 33
<PAGE>
require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of
an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, any suit instituted by any Debentureholder, or
group of Debentureholders, holding more than 10% in aggregate principal
amount of the Outstanding Debentures of any series, or any suit instituted
by any Debentureholder for the enforcement of the payment of the principal
of (or premium, if any) or interest on any Debenture of any series, on or
after the respective due dates expressed in such Debenture or established
pursuant to this Indenture.
ARTICLE SEVEN
Concerning the Trustee
SECTION 7.01. (a) The Trustee, prior to the occurrence of an Event of
Default with respect to Debentures of any series and after the curing of
all Events of Default with respect to Debentures of that series which may
have occurred, shall undertake to perform with respect to Debentures of
that series such duties and only such duties as are specifically set forth
in this Indenture, and no implied covenants shall be read into this
Indenture against the Trustee. In case an Event of Default with respect
to Debentures of a series has occurred (which has not been cured or
waived), the Trustee shall exercise with respect to Debentures of that
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
individual would exercise or use under the circumstances in the conduct of
his or her own affairs.
(b) 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) prior to the occurrence of an Event of Default with respect
to Debentures of a series and after the curing and waiving of all such
Events of Default with respect to that series which may have occurred:
(i) the duties and obligations of the Trustee shall with respect
to Debentures of that series be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable with
respect to Debentures of that series except for the performance of
such duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
IPS-29952.2 34
<PAGE>
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may with respect to Debentures of that series conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any 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 (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein);
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Trustee, 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 not less than a majority in principal
amount of the Debentures of any series at the time Outstanding
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 Debentures of that series; and
(4) none of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur
or risk personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Indenture or adequate indemnity against such risk is not reasonably
assured to it.
(c) 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 7.01.
SECTION 7.02. Except as otherwise provided in Section 7.01:
(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, consent, order, approval,
bond, security 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, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by a Board
IPS-29952.2 35
<PAGE>
Resolution or a Company Request or Company Order (unless other evidence in
respect thereof is specifically prescribed herein);
(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) is entitled to receive
and may, in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) The Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or
suffered or omitted 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, order or
direction of any of the Debentureholders, pursuant to the provisions of
this Indenture, unless such Debentureholders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; nothing herein
contained shall, however, relieve the Trustee of the obligation, upon the
occurrence of an Event of Default with respect to a series of the
Debentures (which has not been cured or waived) to exercise with respect
to Debentures of that series such of the rights and powers vested in it by
this Indenture, and to 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;
(f) If an Event of Default shall have occurred and be continuing, the
Trustee shall be under no obligation to follow any request, order or
direction of the Company if in the reasonable judgment of the Trustee such
request, order or direction would not be in the best interests of all the
holders;
(g) The Trustee shall not be liable for any action taken or omitted
to be taken by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture;
(h) 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, consent, order, approval,
bond, security, or other papers or documents, unless requested in writing
to do so by the holders of not less than a majority in principal amount of
the Outstanding Debentures of the particular series affected thereby
(determined as provided in Section 8.04); provided, however, that if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms
IPS-29952.2 36
<PAGE>
of this Indenture, the Trustee may require reasonable indemnity against
such costs, expenses or liabilities as a condition to so proceeding. The
reasonable expense of every such examination shall be paid by the Company
or, if paid by the Trustee, shall be repaid by the Company upon demand;
(i) 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
(j) The Trustee may, at its option, apply for written instructions
from the Company in which application, the Trustee, at its option, may set
forth in writing any action proposed to be taken or omitted by the Trustee
under this Indenture and the date on and/or after which such action shall
be taken or such omission shall be effective. The Trustee shall not be
liable for any action or omission of the Trustee in accordance with a
proposal included in such application on or after the date specified in
such application (which date shall not be less than three Business Days
after the date any officer of the Company actually receives such
application, unless any such officer shall have consented in writing to
any earlier date) unless prior to taking any such action (or the effective
date in the case of an omission), the Trustee shall have received written
instructions in response to such application specifying the action to be
taken or omitted.
SECTION 7.03. (a) The recitals contained herein and in the Debentures
(other than the Certificate of Authentication on the Debentures) shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same.
(b) The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debentures.
(c) The Trustee shall not be accountable for the use or application
by the Company of any of the Debentures or of the proceeds of the
Debentures, or for the use or application of any moneys paid over by the
Trustee in accordance with any provision of this Indenture or established
pursuant to Section 2.01, or for the use or application of any moneys
received by any paying agent other than the Trustee.
SECTION 7.04. The Trustee or any paying agent or Debenture Registrar,
in its individual or any other capacity, may become the owner or pledgee
of Debentures with the same rights it would have if it were not Trustee,
paying agent or Debenture Registrar.
SECTION 7.05. Subject to the provisions of Section 11.06, all moneys
received by the Trustee shall, until used or applied as herein provided,
be held in trust for the purposes for which they were received, but need
not be segregated from other funds except to the extent required by law.
The Trustee shall be under no
IPS-29952.2 37
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liability for interest on any moneys received by it hereunder except such
as it may agree with the Company to pay thereon.
SECTION 7.06. (a) The Company covenants and agrees to pay to the
Trustee from time to time, and the Trustee shall be entitled to, such
compensation as the Company and the Trustee may agree upon (which shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) for all services rendered by it in the
execution of the trusts hereby created and in the exercise and performance
of any of the powers and duties hereunder of the Trustee, and the Company
will pay or reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel
and of all persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith.
The Company also covenants to indemnify the Trustee (and its officers,
agents, directors and employees) for, and to hold it harmless against, any
loss, damage, claim, liability or expense incurred without negligence or
bad faith on the part of the Trustee and arising out of or in connection
with the acceptance or administration of this trust, including the costs
and expenses of defending itself against any claim of liability in the
premises.
(b) The obligations of the Company under this Section to compensate
and indemnify the Trustee and to pay or reimburse the Trustee for
expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the termination of this
Indenture. Such additional indebtedness shall be a senior lien to that of
the Debentures upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of the holders
of particular Debentures, and the Debentures are hereby subordinated to
each such senior lien.
(c) When the Trustee incurs expenses or renders services in
connection with an Event of Default, the expenses (including the
reasonable charges and expenses of its counsel) and compensation for its
services are intended to constitute expenses of administration under
applicable federal or state bankruptcy, insolvency or similar law.
SECTION 7.07. Except as otherwise provided in Section 7.01, whenever
in the administration of the provisions of this Indenture the Trustee
shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering or omitting to take any action
hereunder, it shall be entitled to receive, and such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed
to be conclusively provided and established, by an Officers' Certificate
delivered to the Trustee and such certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full warrant
to the Trustee for any action taken, suffered or omitted to be taken by it
under the provisions of this Indenture upon the faith thereof.
IPS-29952.2 38
<PAGE>
SECTION 7.08. If the Trustee has acquired or shall acquire a
conflicting interest within the meaning of the Trust Indenture Act, the
Trustee shall either eliminate such interest or resign, to the extent and
in the manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Indenture.
SECTION 7.09. There shall at all times be a Trustee with respect to
the Debentures issued hereunder which shall at all times be a corporation
organized and doing business under the laws of the United States of
America or any State or Territory thereof or of the District of Columbia,
or a corporation or other person permitted to act as trustee by the
Commission, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least 50 million dollars, and
subject to supervision or examination by Federal, State, Territorial or
District of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid 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. The Company may not, nor may any
person directly or indirectly controlling, controlled by, or under common
control with the Company, serve as Trustee. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of
this Section, the Trustee shall resign immediately in the manner and with
the effect specified in Section 7.10.
SECTION 7.10. (a) The Trustee or any successor hereafter appointed
may at any time resign with respect to the Debentures of one or more
series by giving written notice thereof to the Company and by transmitting
notice of resignation by mail, first-class postage prepaid, to the
Debentureholders of that series, as their names and addresses appear upon
the Debenture Register. Upon receiving such notice of resignation, the
Company shall promptly appoint a successor trustee with respect to
Debentures of that series by written instrument, in duplicate, executed by
order of the Board of Directors, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor trustee.
If no successor trustee shall have been so appointed and have accepted
appointment within 30 days after the mailing 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
Debentures of that series, or any Debentureholder of that series who has
been a bona fide holder of a Debenture or Debentures for at least six
months may, subject to the provisions of Section 6.08, on behalf of such
holder and all others similarly situated, petition any such court for the
appointment of a successor trustee. Such court may thereupon after such
notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
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(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of Section
7.08 after written request therefor by the Company or by any
Debentureholder who has been a bona fide holder of a Debenture or
Debentures for at least six months; or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 7.09 and shall fail to resign after written request
therefor by the Company or by any such Debentureholder; or
(3) the Trustee shall become incapable of acting, shall be adjudged a
bankrupt or insolvent, 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, the Company may remove the Trustee with respect to
all Debentures and appoint a successor trustee by written instrument, in
duplicate, executed by order of the Board of Directors, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to
the successor trustee, or, subject to the provisions of Section 6.08,
unless the Trustee's duty to resign is stayed as provided therein, any
Debentureholder who has been a bona fide holder of a Debenture or
Debentures 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 and the appointment of a successor trustee.
Such court may thereupon after such notice, if any, as it may deem proper
and prescribe, remove the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of the
Debentures of any series at the time Outstanding may at any time remove
the Trustee with respect to that series and appoint a successor trustee.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee with respect to the Debentures of a series pursuant to
any of the provisions of this Section 7.10 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section
7.11.
(e) Any successor trustee appointed pursuant to this Section 7.10 may
be appointed with respect to the Debentures of one or more series or all
of such series, and at any time there shall be only one Trustee with
respect to the Debentures of any particular series.
SECTION 7.11. (a) In case of the appointment hereunder of a successor
trustee with respect to all Debentures, 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
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removal of the retiring Trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor trustee all the rights, powers,
and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor trustee all property and money held by such
retiring Trustee hereunder, subject to any prior lien provided for in
Section 7.06(b).
(b) In case of the appointment hereunder of a successor trustee with
respect to the Debentures of one or more (but not all) series, the
Company, the retiring Trustee and each successor trustee with respect to
the Debentures of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor trustee shall accept
such appointment and which shall (1) 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 Debentures of that or those series to
which the appointment of such successor trustee relates, (2) 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 Debentures 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) 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, 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 that no Trustee shall
be responsible for any act or failure to act on the part of any other
Trustee hereunder; 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, such retiring
Trustee shall with respect to the Debentures of that or those series to
which the appointment of such successor trustee relates have no further
responsibility for the exercise of rights and powers or for the
performance of the duties and obligations vested in the Trustee under this
Indenture, and each such successor trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Debentures of that or
those series to which the appointment of such successor trustee relates,
subject to any prior lien provided for in Section 7.06(b); but, on request
of the Company or any successor trustee, such retiring Trustee shall duly
assign, transfer and deliver to such successor trustee, to the extent
contemplated by such supplemental indenture, the property and money held
by such retiring Trustee hereunder with respect to the Debentures of that
IPS-29952.2 41
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or those series to which the appointment of such successor trustee
relates.
(c) Upon request of any such successor trustee or retiring Trustee,
the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor trustee all such
rights, powers and trusts referred to in paragraph (a) or (b) of this
Section, as the case may be.
(d) No successor trustee shall accept its appointment unless at the
time of such acceptance such successor trustee shall be qualified and
eligible under this Article.
(e) Upon acceptance of appointment by a successor trustee as provided
in this Section, the Company shall transmit notice of the succession of
such trustee hereunder by mail, first-class postage prepaid, to the
Debentureholders, as their names and addresses appear upon the Debenture
Register. If the Company fails to transmit such notice within 10 days
after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be transmitted at the expense of the
Company.
SECTION 7.12. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be
a party, or any corporation succeeding to the corporate trust business of
the Trustee, shall be the successor of the Trustee hereunder, provided
that such corporation shall be qualified under the provisions of Section
7.08 and eligible under the provisions of Section 7.09, without the
execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding. In
case any Debentures 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 Debentures so authenticated with the same effect as if
such successor Trustee had itself authenticated such Debentures.
SECTION 7.13. If and when the Trustee shall become a creditor of the
Company (or any other obligor upon the Debentures), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any other obligor upon the
Debentures).
ARTICLE EIGHT
Concerning the Debentureholders
SECTION 8.01. Whenever in this Indenture it is provided that the
holders of a majority or specified percentage in aggregate principal
amount of the Debentures of a particular series may take any action
(including the making of any demand or request, the giving of any notice,
consent or waiver or the taking of any other action), the fact that at the
time of taking any such action the holders of such majority or specified
percentage of that series
IPS-29952.2 42
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have joined therein may be evidenced by any instrument or any number of
instruments of similar tenor executed by such holders of Debentures of
that series in person or by agent or proxy appointed in writing.
If the Company shall solicit from the Debentureholders of any series
any request, demand, authorization, direction, notice, consent, waiver or
other action, the Company may, at its option, as evidenced by an Officers'
Certificate, fix in advance a record date for that series for the
determination of Debentureholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action, 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 action may be given before or after the record date, but
only the Debentureholders of record at the close of business on the record
date shall be deemed to be Debentureholders for the purposes of
determining whether Debentureholders of the requisite proportion of
Outstanding Debentures of that series have authorized or agreed or
consented to such request, demand, authorization, direction, notice,
consent, waiver or other action, and for that purpose the Outstanding
Debentures of that series shall be computed as of such record date;
provided that no such authorization, agreement or consent by such
Debentureholders on such record date shall be deemed effective unless it
shall become effective pursuant to the provisions of this Indenture not
later than six months after the record date.
SECTION 8.02. Subject to the provisions of Section 7.01, proof of the
execution of any instrument by a Debentureholder (such proof will not
require notarization) or his, her or its agent or proxy and proof of the
holding by any person of any of the Debentures shall be sufficient if made
in the following manner:
(a) the fact and date of the execution by any such person of any
instrument may be proved, in any reasonable manner acceptable to the
Trustee;
(b) the ownership of Debentures shall be proved by the Debenture
Register of such Debentures or by a certificate of the Debenture
Registrar thereof; or
(c) the Trustee may require such additional proof of any matter
referred to in this Section as it shall deem necessary.
SECTION 8.03. Prior to the due presentment for registration of
transfer of any Debenture, the Company, the Trustee, any paying agent and
any Debenture Registrar may deem and treat the person in whose name such
Debenture shall be registered upon the books of the Company as the
absolute owner of such Debenture (whether or not such Debenture shall be
overdue and notwithstanding any notice of ownership or writing thereon
made by anyone other than the Debenture Registrar) for the purpose of
receiving payment of or on account of the principal of (premium, if any)
and (subject to Section 2.03) interest on such Debenture and for all other
IPS-29952.2 43
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purposes; and neither the Company nor the Trustee nor any paying agent nor
any Debenture Registrar shall be affected by any notice to the contrary.
SECTION 8.04. In determining whether the holders of the requisite
aggregate principal amount of Debentures of a particular series have
concurred in any direction, consent or waiver under this Indenture,
Debentures of that series which are owned by the Company or any other
obligor on the Debentures of that series or by any person directly or
indirectly controlling or controlled by or under common control with the
Company or any other obligor on the Debentures of that series shall be
disregarded and deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or
waiver, only Debentures of such series which the Trustee actually knows
are so owned shall be so disregarded. Debentures so owned which have been
pledged in good faith may be regarded as Outstanding for the purposes of
this Section, if the pledgee shall establish to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Debentures and
that the pledgee is not a person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company
or any such other obligor. In case of a dispute as to such right, any
decision by the Trustee taken upon the advice of counsel shall be full
protection to the Trustee.
SECTION 8.05. At any time prior to (but not after) the evidencing to
the Trustee, as provided in Section 8.01, of the taking of any action by
the holders of the majority or percentage in aggregate principal amount of
the Debentures of a particular series specified in this Indenture in
connection with such action, any holder of a Debenture of that series
which is shown by the evidence to be included in the Debentures the
holders of which have consented to such action may, by filing written
notice with the Trustee, and upon proof of holding as provided in Section
8.02 revoke such action so far as concerns such Debenture. Except as
aforesaid, any such action taken by the holder of any Debenture shall be
conclusive and binding upon such holder and upon all future holders and
owners of such Debenture, and of any Debenture issued in exchange
therefor, on registration of transfer thereof or in place thereof,
irrespective of whether or not any notation in regard thereto is made upon
such Debenture. Any action taken by the holders of the majority or
percentage in aggregate principal amount of the Debentures of a particular
series specified in this Indenture in connection with such action shall be
conclusively binding upon the Company, the Trustee and the holders of all
the Debentures of that series.
ARTICLE NINE
Supplemental Indentures
SECTION 9.01. In addition to any supplemental indenture otherwise
authorized by this Indenture, the Company, when authorized by a Board
Resolution, and the Trustee may from time to
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time and at any time enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act
as then in effect), without the consent of the Debentureholders, for one
or more of the following purposes:
(a) to evidence the succession of another corporation to the
Company, and the assumption by any such successor of the covenants of
the Company contained herein or otherwise established with respect to
the Debentures;
(b) to add to the covenants of the Company such further
covenants, restrictions, conditions or provisions for the protection
of the holders of the Debentures of all or any series as the Board of
Directors and the Trustee shall consider to be for the protection of
the holders of Debentures of all or any series, and to make the
occurrence, or the occurrence and continuance, of a failure in respect
of any of such additional covenants, restrictions, conditions or
provisions a Default or an Event of Default with respect to that
series permitting the enforcement of all or any of the several
remedies provided in this Indenture, as herein set forth; provided,
however, that in respect of any such additional covenant, restriction,
condition or provision, such supplemental indenture may provide for a
particular period of grace after such failure (which period may be
shorter or longer than that allowed in the case of other Defaults),
may provide for an immediate enforcement upon such failure or may
limit the remedies available to the Trustee upon such failure or may
limit the right of the holders of a majority in aggregate principal
amount of the Debentures of such series to waive such failure, whether
or not such failure shall be made a Default;
(c) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture, or to make such other provisions in
regard to matters or questions arising under this Indenture as shall
not be inconsistent with the provisions of this Indenture and shall
not adversely affect the interests of the holders of the Debentures of
any series; or
(d) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Debenture Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, and to make any further
appropriate agreements and stipulations which may be therein contained,
but the Trustee shall not be obligated to enter
IPS-29952.2 45
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into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed by the Company and the Trustee without the consent
of the holders of any of the Debentures at the time Outstanding,
notwithstanding any of the provisions of Section 9.02.
SECTION 9.02. With the consent (evidenced as provided in Section
8.01) of the holders of not less than a majority in aggregate principal
amount of the Debentures of each series affected by such supplemental
indenture or indentures at the time Outstanding, the Company and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of
the Trust Indenture Act as then in effect) for the purpose of adding any
provisions to, or changing in any manner or eliminating any of the
provisions of, this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the holders of the Debentures of
that series under this Indenture; provided, however, that no such
supplemental indenture shall (i) extend the fixed maturity of any
Debentures of any series, reduce the principal amount thereof, reduce the
rate or extend the time of payment of interest thereon or reduce any
premium payable upon the redemption thereof, without the consent of the
holder of each Debenture so affected or (ii) reduce the percentage of
Debentures, the holders of which are required to consent to any such
supplemental indenture, without the consent of the holders of each
Debenture then Outstanding and affected thereby.
Upon a Company Request and upon the filing with the Trustee of
evidence of the consent of Debentureholders required to consent thereto as
aforesaid, the Trustee shall join with the Company in the execution of
such supplemental indenture unless such supplemental indenture affects the
Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion but shall not
be obligated to enter into such supplemental indenture.
It shall not be necessary for the consent of the Debentureholders of
any series affected thereby under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if
such consent shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 9.02,
the Trustee shall transmit by mail, first-class postage prepaid, a notice,
setting forth in general terms the substance of such supplemental
indenture, to the Debentureholders of all series affected thereby as their
names and addresses appear upon the Debenture Register. Any failure of
the Trustee to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
IPS-29952.2 46
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SECTION 9.03. Upon the execution of any supplemental indenture
pursuant to the provisions of this Article or of Section 10.01, this
Indenture shall, with respect to that series, be and be deemed to be
modified and amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Company and the holders of Debentures of the
series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and
amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.
SECTION 9.04. Debentures of any series, affected by a supplemental
indenture, authenticated and delivered after the execution of such
supplemental indenture pursuant to the provisions of this Article or of
Section 10.01, may bear a notation in form approved by the Company,
provided such form meets the requirements of any securities exchange upon
which such series may be listed, as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Debentures
of that series so modified as to conform, in the opinion of the Company,
to any modification of this Indenture contained in any such supplemental
indenture may be prepared by the Company, authenticated by the Trustee and
delivered in exchange for the Debentures of that series then Outstanding.
SECTION 9.05. The Trustee, subject to the provisions of Section 7.01,
is entitled to receive an Opinion of Counsel as conclusive evidence that
any supplemental indenture executed pursuant to this Article is authorized
or permitted by, and conforms to, the terms of this Article, has been duly
authorized by and lawfully executed and delivered on behalf of the
Company, and that it is proper for the Trustee under the provisions of
this Article to join in the execution thereof.
ARTICLE TEN
Consolidation, Merger and Sale
SECTION 10.01. Nothing contained in this Indenture or in any of the
Debentures shall prevent any consolidation or merger of the Company with
or into any other corporation or corporations (whether or not affiliated
with the Company), or successive consolidations or mergers in which the
Company or its successor or successors shall be a party or parties, or
shall prevent any sale, conveyance, transfer or other disposition of the
property of the Company or its successor or successors as an entirety, or
substantially as an entirety, to any other corporation (whether or not
affiliated with the Company or its successor or successors) authorized to
acquire and operate the same; provided, however, the Company hereby
covenants and agrees that, upon any such consolidation, merger, sale,
conveyance, transfer or other disposition, the due and punctual payment of
the principal of (premium, if any) and interest on all of the Debentures
of all series in accordance with the terms of each series, according to
their tenor, and the due and punctual
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performance and observance of all the covenants and conditions of this
Indenture with respect to each series or established with respect to each
series pursuant to Section 2.01 to be kept or performed by the Company,
shall be expressly assumed, by supplemental indenture (which shall conform
to the provisions of the Trust Indenture Act as then in effect)
satisfactory in form to the Trustee executed and delivered to the Trustee
by the entity formed by such consolidation, or into which the Company
shall have been merged, or by the entity which shall have acquired such
property.
SECTION 10.02. (a) In case of any such consolidation, merger, sale,
conveyance, transfer or other disposition and upon the assumption by the
successor corporation, by supplemental indenture, executed and delivered
to the Trustee and satisfactory in form to the Trustee, of the due and
punctual payment of the principal of (premium, if any) and interest on all
of the Debentures of all series Outstanding and the due and punctual
performance of all of the covenants and conditions of this Indenture or
established with respect to each series of the Debentures pursuant to
Section 2.01 to be performed by the Company with respect to each series,
such successor corporation shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein as the party
of the first part, and thereupon the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture and the
Debentures, except the provisions of Section 7.06 to the extent such
provisions relate to matters occurring before any such consolidation,
merger, sale, conveyance, transfer or other disposition. Such successor
corporation thereupon may cause to be signed, and may issue either in its
own name or in the name of the Company or any other predecessor obligor on
the Debentures, any or all of the Debentures issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor corporation, instead of the
Company, and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Debentures which previously shall have been signed and delivered by the
officers of the predecessor corporation to the Trustee for authentication,
and any Debentures which such successor corporation thereafter shall cause
to be signed and delivered to the Trustee for that purpose. All the
Debentures so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Debentures theretofore or thereafter
issued in accordance with the terms of this Indenture as though all of
such Debentures had been issued at the date of the execution hereof.
(b) In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition, such changes in phraseology and form (but
not in substance) may be made in the Debentures thereafter to be issued as
may be appropriate.
(c) Nothing contained in this Indenture or in any of the Debentures
shall prevent the Company from merging into itself or acquiring by
purchase or otherwise all or any part of the property
IPS-29952.2 48
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of any other corporation (whether or not affiliated with the Company).
SECTION 10.03. The Trustee, subject to the provisions of Section
7.01, is entitled to receive an Opinion of Counsel as conclusive evidence
that any such consolidation, merger, sale, conveyance, transfer or other
disposition, and any such assumption, comply with the provisions of this
Article.
ARTICLE ELEVEN
Satisfaction and Discharge of Indenture;
Unclaimed Moneys
SECTION 11.01 If at any time: (a) the Company shall have delivered to
the Trustee for cancellation all Debentures of a series theretofore
authenticated (other than any Debentures which shall have been destroyed,
lost or stolen and which shall have been replaced or paid as provided in
Section 2.07) and Debentures for whose payment money or Governmental
Obligations has theretofore been deposited in trust or segregated and held
in trust by the Company (and thereupon repaid to the Company or discharged
from such trust, as provided in Section 11.06); or (b) all Debentures of a
series not theretofore delivered to the Trustee for cancellation shall
have become due and payable, or are by their terms to become due and
payable within one year or are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of notice of
redemption, and the Company shall deposit or cause to be deposited with
the Trustee as trust funds the entire amount in moneys or Governmental
Obligations or a combination thereof, sufficient in the opinion of a
nationally recognized firm of independent public accountants expressed in
a written certification thereof delivered to the Trustee, to pay at
maturity or upon redemption all Debentures of that series not theretofore
delivered to the Trustee for cancellation, including principal (and
premium, if any) and interest due or to become due to such date of
maturity or date fixed for redemption, as the case may be, and if the
Company shall also pay or cause to be paid all other sums payable
hereunder with respect to that series by the Company, then this Indenture
shall thereupon cease to be of further effect with respect to such series
except for the provisions of Sections 2.05, 2.07, 4.02 and 7.10, which
shall survive until the date of maturity or redemption date, as the case
may be, and Sections 7.06 and 11.06 which shall survive to such date and
thereafter, and the Trustee, on demand of the Company and at the cost and
expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture with respect to such
series.
SECTION 11.02. If at any time all such Debentures of a particular
series not heretofore delivered to the Trustee for cancellation or which
have not become due and payable as described in Section 11.01 shall have
been paid by the Company by depositing irrevocably with the Trustee as
trust funds moneys or an amount of Governmental Obligations sufficient to
pay at maturity or upon redemption all such Debentures of that series not
theretofore
IPS-29952.2 49
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delivered to the Trustee for cancellation, including principal (and
premium, if any) and interest due or to become due to such date of
maturity or date fixed for redemption, as the case may be, and if the
Company shall also pay or cause to be paid all other sums payable
hereunder by the Company with respect to that series, then after the date
such moneys or Governmental Obligations, as the case may be, are deposited
with the Trustee the obligations of the Company under this Indenture with
respect to such series shall cease to be of further effect except for the
provisions of Sections 2.05, 2.07, 4.02, 7.06, 7.10 and 11.06 hereof which
shall survive until such Debentures shall mature and be paid. Thereafter,
Sections 7.06 and 11.06 shall survive. The release of the Company from
its obligations under this Indenture, as provided for in this Section
11.02, shall be subject to the further condition that the Company first
shall have caused to be delivered to the Trustee an Opinion of Counsel to
the effect that Debentureholders of a series with respect to which a
deposit has been made in accordance with this Section 11.02 will not
realize income, gain or loss for federal income tax purposes as a result
of such deposit and release, and will be subject to federal income tax on
the same amount, in the same manner and at the same times as would have
been the case if such deposit and release had not occurred.
SECTION 11.03. If, in addition to satisfying the conditions set forth
in Section 11.01 or 11.02 (except for the requirement of an Opinion of
Counsel), the Company delivers to the Trustee an Opinion of Counsel to the
effect that (a) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling or (b) since the date of this
Indenture there has been a change in applicable federal income tax law, in
either case to the effect that, and based thereon such Opinion of Counsel
shall confirm that, the Debentureholders of a series with respect to which
a deposit has been made in accordance with Section 11.01 or 11.02 will not
realize income, gain or loss for federal income tax purposes as a result
of such deposit, defeasance and discharge and will be subject to federal
income tax on the same amount, in the same manner and at the same times,
as would have been the case if such deposit, defeasance and discharge had
not occurred and (c) the deposit shall not result in the Company, the
Trustee or the trust being deemed an "investment company" under the
Investment Company Act of 1940, as amended, then, in such event, the
Company will be deemed to have paid and discharged the entire indebtedness
on that series and the holder thereof shall thereafter be entitled to
receive payment solely from the trust fund described above.
SECTION 11.04. All moneys or Governmental Obligations deposited with
the Trustee pursuant to Sections 11.01 or 11.02 shall be held in trust and
shall be available for payment as due, either directly or through any
paying agent (including the Company acting as its own paying agent), to
the holders of the particular series of Debentures for the payment or
redemption of which such moneys or Governmental Obligations have been
deposited with the Trustee.
IPS-29952.2 50
<PAGE>
SECTION 11.05. In connection with the satisfaction and discharge of
this Indenture all moneys or Governmental Obligations then held by any
paying agent under the provisions of this Indenture shall, upon demand of
the Company, be paid to the Trustee and thereupon such paying agent shall
be released from all further liability with respect to such moneys or
Governmental obligations.
SECTION 11.06. Any moneys or Governmental Obligations deposited with
any paying agent or the Trustee, or then held by the Company, in trust for
payment of principal of or premium or interest on the Debentures of a
particular series that are not applied but remain unclaimed by the holders
of such Debentures for at least two years after the date upon which the
principal of (and premium, if any) or interest on such Debentures shall
have respectively become due and payable, shall, upon written notice from
the Company, be repaid to the Company on May 31 of each year or (if then
held by the Company) shall be discharged from such trust; and thereupon
the paying agent and the Trustee shall be released from all further
liability with respect to such moneys or Governmental Obligations, and the
holder of any of the Debentures entitled to receive such payment shall
thereafter, as an unsecured general creditor, look only to the Company for
the payment thereof.
ARTICLE TWELVE
Immunity of Incorporators, Stockholders, Officers
and Directors
SECTION 12.01. No recourse under or upon any obligation, covenant or
agreement of this Indenture, or of any Debenture, or for any claim based
thereon or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer or director, past, present or future as
such, of the Company or of any predecessor or successor corporation,
either directly or through the Company or any such predecessor or
successor corporation, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that this Indenture and the
obligations issued hereunder are solely corporate obligations, and that no
such personal liability whatever shall attach to, or is or shall be
incurred by, the incorporators, stockholders, officers or directors as
such, of the Company or of any predecessor or successor corporation, or
any of them, because of the creation of the indebtedness hereby authorized
or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Debentures or implied
therefrom; and that any and all such personal liability of every name and
nature, either at common law, in equity or by constitution or statute, of,
and any and all such rights and claims against, every such incorporator,
stockholder, officer or director as such, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the
Debentures or implied therefrom, are hereby expressly waived and released
as a condition of, and as a consideration for, the execution of this
Indenture and the issuance of such Debentures.
IPS-29952.2 51
<PAGE>
ARTICLE THIRTEEN
Miscellaneous Provisions
SECTION 13.01. All the covenants, stipulations, promises and
agreements in this Indenture contained by or on behalf of the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 13.02. Any act or proceeding by any provision of this
Indenture authorized or required to be done or performed by any board,
committee or officer of the Company shall and may be done and performed
with like force and effect by the corresponding board, committee or
officer of any corporation that shall at the time be the lawful sole
successor of the Company.
SECTION 13.03. Except as otherwise expressly provided herein, any
notice or demand which by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the holders of
Debentures to or on the Company may be given or served by being deposited
first-class postage prepaid in a post-office letter box addressed (until
another address is filed in writing by the Company with the Trustee), as
follows: Portland General Electric Company, 121 SW Salmon Street,
Portland, Oregon 97204, Attention: Corporate Secretary. Any notice,
election, request or demand by the Company or any Debentureholder to or
upon the Trustee shall be deemed to have been sufficiently given or made,
for all purposes, if given or made in writing at the Corporate Trust
Office of the Trustee.
SECTION 13.04. This Indenture and each Debenture shall be deemed to
be a contract made under the laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of that State,
without regard to the conflicts of laws principles thereof.
SECTION 13.05. (a) Upon any application or demand by the Company to
the Trustee to take any action under any of the provisions of this
Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in
this Indenture (including any covenants compliance with which constitutes
a condition precedent), 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, (including any covenants compliance
with which constitutes a condition precedent), have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of
this Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.
(b) Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant in this Indenture (other than the certificate provided pursuant
to Section 5.03(d) of this Indenture)
IPS-29952.2 52
<PAGE>
shall include (1) a statement that the person making such certificate or
opinion has read such covenant or condition; (2) a brief statement as to
the nature and scope of the examination or investigation upon which the
statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of 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 (4) a statement as to whether or
not, in the opinion of such person, such condition or covenant has been
complied with.
SECTION 13.06. Simultaneously with the execution of this Indenture,
the Company shall deliver to the Trustee an Opinion of Counsel stating
that, in the opinion of such counsel, (a) this Indenture has been duly
authorized by and lawfully executed and delivered on behalf of the
Company, is in full force and effect and is legal, valid and binding upon
the Company in accordance with its terms, except to the extent limited by
bankruptcy, insolvency, reorganization or other laws affecting creditors'
rights and (b) in the event that any Debentures shall be issued at such
time, the Debentures have been authorized, executed and delivered by the
Company and constitute legal, valid and binding obligations of the Company
in accordance with their terms, except to the extent limited by
bankruptcy, insolvency, reorganization or other laws affecting creditors'
rights.
SECTION 13.07. Except as provided pursuant to Section 2.01, and as
set forth in an Officers' Certificate, or established in one or more
indentures supplemental to this Indenture, in any case where the date of
maturity of interest or principal of any Debenture or the date of
redemption of any Debenture shall not be a Business Day then payment of
interest or principal (and premium, if any) may be made on the next
succeeding Business Day with the same force and effect as if made on the
nominal date of maturity or redemption, and no interest shall accrue for
the period after such nominal date.
SECTION 13.08. If and to the extent that any provision of this
Indenture limits, qualifies, or conflicts with the duties imposed by
operation of Section 3.18(c) of the Trust Indenture Act, such imposed
duties shall control.
SECTION 13.09. This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts
shall together constitute one and the same instrument.
SECTION 13.10. In case any one or more of the provisions contained in
this Indenture or in the Debentures of any series shall for any reason be
held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provisions of this Indenture or of such Debentures, but this Indenture and
such
Debentures shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
IPS-29952.2 53
<PAGE>
SECTION 13.11. The Company will have the right at all times to assign
any of its rights or obligations under this Indenture to Portland General
Corporation, an Oregon corporation, or a direct or indirect wholly-owned
subsidiary of said Portland General Corporation, including a direct or
indirect wholly-owned subsidiary of the Company; provided that, in the
event of any such assignment, the Company will remain liable for all such
obligations. Subject to the foregoing, the Indenture is binding upon and
inures to the benefit of the parties thereto and their respective
successors and assigns. The Indenture may not otherwise be assigned by
the parties thereto.
SECTION 13.12. The parties intend that, for each holder of a
Debenture and each person that acquires a beneficial ownership interest in
a Debenture, such Debentures shall constitute indebtedness for purposes of
United States federal, state and local taxes.
ARTICLE FOURTEEN
Subordination of Debentures
SECTION 14.01. The Company covenants and agrees, and each holder of
Debentures issued hereunder by the acceptance thereof likewise covenants
and agrees, that all Debentures shall be issued subject to the provisions
of this Article Fourteen; and each holder of a Debenture, whether upon
original issue or upon transfer or assignment thereof, accepts and agrees
to be bound by such provisions.
The payment of the principal of (and premium, if any) and interest on
all Debentures issued hereunder shall, to the extent and in the manner
hereinafter set forth, be subordinated and junior in right of payment to
the prior payment in full of all Senior Indebtedness, whether outstanding
at the date of this Indenture or thereafter incurred.
No provision of this Article Fourteen shall prevent the occurrence of
any Default or Event of Default hereunder.
SECTION 14.02. In the event and during the continuation of any
default in the payment of principal, premium, interest or any payment due
on any Senior Indebtedness continuing beyond the period of grace, if any,
specified in the instrument evidencing such Senior Indebtedness (and the
Trustee has received written notice thereof from the Company or one or
more holders of Senior Indebtedness or their representative or
representatives or a trustee), unless and until such default shall have
been cured or waived or shall have ceased to exist and in the event that
the maturity of any Senior Indebtedness has been accelerated because of a
default (and the Trustee has received written notice thereof from the
Company or one or more holders of Senior Indebtedness or their
representative or representatives or a trustee), then no payment
shall be made by the Company with respect to the principal (including
redemption and sinking fund payments ) of (or premium, if any) or interest
on the Debentures.
IPS-29952.2 54
<PAGE>
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee or any holder of a Debenture when such payment is
prohibited by the preceding paragraph of this Section 14.02, such payment
shall be held in trust for the benefit of, and shall be paid over or
delivered to, the holders of Senior Indebtedness or their respective
representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Senior Indebtedness may have been issued, as
their respective interests may appear, but only to the extent that the
holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee within 90 days of such
payment of the amounts then due and owing on the Senior Indebtedness and
only the amounts specified in such notice to the Trustee shall be paid to
the holders of Senior Indebtedness.
SECTION 14.03. Upon any payment by the Company, or distribution of
assets of the Company of any kind or character, whether in cash, property
or securities, to creditors upon any dissolution, winding-up, liquidation
or reorganization of the Company, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, all amounts due
or to become due upon all Senior Indebtedness shall first be paid in full
or payment thereof provided for in money in accordance with its terms,
before any payment is made on account of the principal (and premium, if
any) or interest on the Debentures; and upon any such dissolution,
winding-up, liquidation or reorganization, any payment by the Company or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, to which the holders of the Debentures or
the Trustee would be entitled, except for the provisions of this Article
Fourteen, shall be paid by the Company, by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other person making such payment
or distribution, by the holders of the Debentures or by the Trustee under
this Indenture if received by them or it directly to the holders of Senior
Indebtedness (pro rata to such holders on the basis of the respective
amounts of Senior Indebtedness held by such holders, as calculated by the
Company) or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing
any Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay all Senior
Indebtedness in full, in money or money's worth, after giving effect to
any concurrent payment or distribution to or for the holders of Senior
Indebtedness, before any payment or distribution is made to the holders of
Debentures or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, prohibited by the foregoing, shall be
received by the Trustee or the holders of the Debentures before all Senior
Indebtedness is paid in full, or provision is made for such payment in
money in accordance with its terms, such payment or distribution shall be
held in trust for the benefit of and shall be paid over or delivered to
the holders of Senior Indebtedness or their representative or
representatives, or
IPS29952.2 55
<PAGE>
to the trustee or trustees under any indenture
pursuant to which any instruments evidencing any Senior Indebtedness may
have been issued, as their respective interests may appear, as calculated
by the Company, for application to the payment of Senior Indebtedness
remaining unpaid to the extent necessary to pay all Senior Indebtedness in
full in money in accordance with its terms, after giving effect to any
concurrent payment or distribution to or for the holders of such Senior
Indebtedness.
For purposes of this Article Fourteen, the words, "cash, property or
securities" shall not be deemed to include shares of stock of the Company
as reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this
Article Fourteen with respect to the Debentures to the payment of all
Senior Indebtedness which may at the time be outstanding; provided that
(i) the Senior Indebtedness is assumed by the new corporation, if any,
resulting from any such reorganization or readjustment, and (ii) the
rights of the holders of the Senior Indebtedness are not, without the
consent of such holders, altered by such reorganization or readjustment.
The consolidation of the Company with, or the merger of the Company into,
another corporation or the liquidation or dissolution of the Company
following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided for in Article Ten hereof shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of
this Section 14.03 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions
stated in Article Ten hereof. Nothing in Section 14.02 or in this Section
14.03 shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 7.06.
SECTION 14.04. Subject to the payment in full of all Senior
Indebtedness, the rights of the holders of the Debentures shall be
subrogated to the rights of the holders of Senior Indebtedness to receive
payments or distributions of cash, property or securities of the Company
applicable to the Senior Indebtedness until the principal of (and premium,
if any) and interest on the Debentures shall be paid in full; and, for the
purposes of such subrogation, no payments or distributions to the holders
of the Senior Indebtedness of any cash, property or securities to which
the holders of the Debentures or the Trustee would be entitled except for
the provisions of this Article Fourteen, and no payment over pursuant to
the provisions of this Article Fourteen, to or for the benefit of the
holders of Senior Indebtedness by holders of the Debentures or the
Trustee, shall, as between the Company, its creditors other than holders
of Senior Indebtedness, and the holders of the Debentures, be deemed to be
a payment by the Company to or on account of the Senior Indebtedness. It
is understood that the provisions of this Article Fourteen are and are
intended solely for the purposes of defining the relative rights of the
holders of the Debentures, on the one hand, and the holders of the Senior
Indebtedness on the other hand.
IPS-29952.2 56
<PAGE>
Nothing contained in this Article Fourteen or elsewhere in this
Indenture or in the Debentures is intended to or shall impair, as between
the Company, its creditors other than the holders of Senior Indebtedness,
and the holders of the Debentures, the obligation of the Company, which is
absolute and unconditional, to pay to the holders of the Debentures the
principal of (and premium, if any) and interest on the Debentures as and
when the same shall become due and payable in accordance with their terms,
or is intended to or shall affect the relative rights of the holders of
the Debentures and creditors of the Company other than the holders of the
Senior Indebtedness, nor shall anything herein or therein prevent the
Trustee or the holder of any Debenture from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture,
subject to the rights, if any, under this Article Fourteen of the holders
of Senior 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 of the Company referred to
in this Article Fourteen, the Trustee, subject to the provision of Section
7.01, and the holders of the Debentures shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction in which such
dissolution, winding-up, liquidation or reorganization proceedings are
pending, or a certificate of the receiver, trustee in bankruptcy,
liquidation trustee, agent or other person making such payment or
distribution, delivered to the Trustee or to the holders of the
Debentures, for the purposes of ascertaining the persons entitled to
participate in such distribution, the holders of the Senior Indebtedness
and other indebtedness of the Company, the amount hereof or payable
thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article Fourteen.
SECTION 14.05. Each holder of a Debenture by acceptance thereof
authorizes and directs the Trustee in his, her or its behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this Article Fourteen and appoints the Trustee his attorney-
in-fact for any and all such purposes.
SECTION 14.06. The Company shall give prompt written notice to a
Responsible Officer of the Trustee of any fact known to the Company which
would prohibit the making of any payment of monies to or by the Trustee or
paying agent in respect of the Debentures pursuant to the provisions of
this Article Fourteen. Notwithstanding the provisions of this Article
Fourteen or any other provision of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any facts which would
prohibit the making of any payment of monies to or by the Trustee or
paying agent in respect of the Debentures pursuant to the provisions of
this Article Fourteen, unless and until a Responsible Officer of the
Trustee shall have received written notice thereof at the Corporate Trust
Office of the Trustee from the Company or a holder or holders of Senior
Indebtedness or from any trustee therefor, and before the receipt of any
such written notice, the Trustee, subject
IPS-29952.2 57
<PAGE>
to the provisions of Section 7.01, shall be entitled in all respects to
assume that no such facts exist; provided that if the Trustee shall not
have received the notice provided for in this Section 14.06 at least two
Business Days prior to the date upon which by the terms hereof any money
may become payable for any purpose (including, without limitation, the
payment of the principal of (or premium, if any) or interest on any
Debenture), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purposes for which they
were received, and shall not be affected by any notice to the contrary
which may be received by it within two Business Days prior to such date.
The Trustee, subject to the provisions of Section 7.01, shall be
entitled to rely on the delivery to it of a written notice by a person
representing himself to be a holder of Senior Indebtedness (or a trustee
on behalf of such holder) to establish that such notice has been given by
a holder of Senior Indebtedness or a trustee on behalf of any such holder
or holders. In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any person as a
holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article Fourteen, the Trustee may request
such person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Senior Indebtedness held by such person, the
extent to which such person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such person
under this Article Fourteen, and if such evidence is not furnished the
Trustee may defer any payment to such person pending judicial
determination as to the right of such person to receive such payment.
SECTION 14.07. The Trustee in its individual capacity shall be
entitled to all the rights set forth in this Article Fourteen in respect
of any Senior Indebtedness at any time held by it, to the same extent as
any other holder of Senior Indebtedness, and nothing in this Indenture
shall deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article Fourteen, 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, subject to the provisions of Section 7.01, the
Trustee shall not be liable to any holder of Senior Indebtedness if it
shall pay over or deliver to holders of Debentures, the Company or any
other person money or assets to which any holder of Senior Indebtedness
shall be entitled by virtue of this Article Fourteen or otherwise.
IPS-29952.2 58
<PAGE>
SECTION 14.08. No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time
in any way be prejudiced or impaired by any act or failure to act on the
part of the Company or by any act or failure to act, in good faith, by any
such holder, or by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge
thereof which any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the holders of the
Debentures, without incurring responsibility to the holders of the
Debentures and without impairing or releasing the subordination provided
in this Article or the obligations hereunder of the holders of the
Debentures to the holders of Senior Indebtedness, do any one or more of
the following: (i) change the manner, place or terms of payment or extend
the time of payment of, or renew or alter, Senior Indebtedness, or
otherwise amend or supplement in any manner Senior Indebtedness or any
instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding; (ii) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any person liable in any manner for the
collection of Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company and any other person.
The Bank of New York, as Trustee, hereby accepts the trusts in this
Indenture declared and provided, upon the terms and conditions hereinabove
set forth.
IPS-29952.2 59
<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.
PORTLAND GENERAL ELECTRIC COMPANY
By: /s/ Joseph M. Hirko
Name: Joseph M. Hirko
Title: Senior Vice President, Finance
Attest: [SEAL]
THE BANK OF NEW YORK, as Trustee
By: /s/ Vivian Georges
Name: Vivian Georges
Title: Assistant Vice President
Attest: [SEAL]
IPS-29952.2 60
<PAGE>
State of Oregon )
) ss.:
County of Multnomah )
Joseph M. Hirko and Steven F. McCarrel, a Senior Vice President and an
Assistant Secretary, respectively, of PORTLAND GENERAL ELECTRIC COMPANY,
an Oregon corporation, being first duly sworn, on oath depose and say that
they are the officers above named of said corporation and that they
executed the foregoing instrument in their authorized capacities for and
on behalf of said corporation by authority of its Board of Directors.
Subscribed and sworn to before me this __________ day of October 1995.
Notary Public for Oregon
IPS-29952.2 61
<PAGE>
State of __________ )
) ss.:
County of _________ )
_______________ and _______________, a _______________ and the
_______________, respectively, of THE BANK OF NEW YORK, a New York banking
corporation, being first duly sworn, on oath depose and say that they are
the officers above named of said corporation and that they executed the
foregoing instrument in their authorized capacities for and on behalf of
said corporation pursuant to its bylaws or by authority of its Board of
Directors.
Subscribed and sworn to before me this __________ day of
____________________, 199__.
Notary Public for
j:\l\finance\15043\jsda\frm.ind
IPS-29952.2 62
PORTLAND GENERAL ELECTRIC COMPANY
and
THE BANK OF NEW YORK
as Trustee
___________________________
FIRST SUPPLEMENTAL INDENTURE
Dated as of October 1, 1995
to
INDENTURE
Dated as of September 1, 1995
___________________________
8-1/4% Junior Subordinated Deferrable Interest Debentures, Series A
IPS-29953.4 j:\l\finance\15043\jsda\frmsupp.ind
<PAGE>
FIRST SUPPLEMENTAL INDENTURE, dated as of the 1st day of October,
1995 (the "First Supplemental Indenture"), between PORTLAND GENERAL
ELECTRIC COMPANY, a corporation duly organized and existing under the laws
of the State of Oregon (hereinafter sometimes referred to as the
"Company"), and THE BANK OF NEW YORK, a New York banking corporation
organized and existing under the laws of the State of New York, as trustee
(hereinafter sometimes referred to as the "Trustee") under the Indenture
dated as of September 1, 1995 between the Company and the Trustee (the
"Indenture"). All terms used and not defined herein are used as defined
in the Indenture.
WHEREAS, the Company executed and delivered the Indenture to the
Trustee to provide for the future issuance of its junior subordinated
debentures (the "Debentures"), which Debentures are to be issued from time
to time in such series as may be determined by the Company under the
Indenture, in an unlimited aggregate principal amount which may be
authenticated and delivered thereunder as in the Indenture provided; and
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its Debentures
to be known as its 8-1/4% Junior Subordinated Deferrable Interest
Debentures, Series A (such series being hereinafter referred to as the
"Series A Debentures"), the form and substance of such Series A Debentures
and the terms, provisions and conditions thereof to be set forth as
provided in the Indenture and this First Supplemental Indenture; and
WHEREAS, the Company desires and has requested the Trustee to
join with it in the execution and delivery of this First Supplemental
Indenture, and all requirements necessary to make this First Supplemental
Indenture a valid instrument, in accordance with its terms, and to make
the Series A Debentures, when executed by the Company and authenticated
and delivered by the Trustee, the valid obligations of the Company, have
been performed and fulfilled, and the execution and delivery hereof have
been in all respects duly authorized;
NOW, THEREFORE, in consideration of the purchase and acceptance
of the Series A Debentures by the holders thereof, and for the purpose of
setting forth, as provided in the Indenture, the form and substance of the
Series A Debentures and the terms, provisions and conditions thereof, the
Company covenants and agrees with the Trustee as follows:
ARTICLE ONE
General Terms and Conditions of the Series A Debentures
SECTION 1.01. There shall be and is hereby authorized a series
of Debentures designated the "8-1/4% Junior Subordinated Deferrable
Interest Debentures, Series A," limited in aggregate principal amount to
$75,000,000, which amount shall be as set forth in any Company Order for
the authentication and delivery of Series A Debentures. The Series A
Debentures shall mature and
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the principal shall be due and payable,
together with all accrued and unpaid interest thereon, on December 31,
2035, and shall be issued in the form of registered Series A Debentures
without coupons.
SECTION 1.02. The Series A Debentures shall be issued as a
Global Debenture and registered in the name of the Depository or its
nominee. The Depository for the Series A Debentures shall be The
Depository Trust Company, New York, New York, subject to the appointment
of a successor Depository as provided in the Indenture. Series A
Debentures represented by the Global Debenture will not be exchangeable
for, and will not otherwise be issuable as, Series A Debentures in
certificated form, except in the event that the Company discontinues its
use of a Depository or in the event of an Event of Default with regard to
the Series A Debentures. Principal of and interest on the Series A
Debentures issued in certificated form will be payable, the transfer of
such Series A Debentures will be registrable and such Series A Debentures
will be exchangeable for Series A Debentures bearing identical terms and
provisions at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, The City of New York; provided,
however, that payment of interest may be made at the option of the Company
(i) by check mailed to the registered holder at such address as shall
appear in the Debenture Register or (ii) upon request of the holder as
provided in the Indenture by wire transfer to an account maintained by the
registered holder as specified in the Debenture Register. The Trustee
will act as paying agent for the Series A Debentures so long as the Series
A Debentures are represented by a Global Debenture, and otherwise until
changed by the Company in the manner provided in the Indenture. Payments
of principal of and interest on the Series A Debentures issued as a Global
Debenture will be made to the Depository.
SECTION 1.03. Each Series A Debenture will bear interest at the
rate of 8-1/4% per annum from and including the original date of issuance
or from the most recent Interest Payment Date referred to below to which
interest has been paid or duly provided for until the principal thereof
becomes due and payable, and on any overdue principal and (to the extent
that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the same rate per annum, payable
quarterly in arrears on March 31, June 30, September 30, and December 31
of each year (each, an "Interest Payment Date"), commencing on December
31, 1995, to the person in whose name such Series A Debenture or any
Predecessor Debenture of a Series A Debenture is registered at the close
of business on the Business Day next preceding each such Interest Payment
Date (each, a "Record Date"); provided, however, that if the Series A
Debentures shall not remain in the form of a Global Debenture, the Company
shall have the right to select another record date, which shall be any day
prior to, but not more than 15 days preceding, an Interest Payment Date.
Any such interest installment not punctually paid or duly provided for on
any Interest Payment Date shall forthwith cease to be payable to the
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registered holder on the relevant Record Date, and may be paid to the
person in whose name the Series A Debenture (or one or more predecessor
Debentures) is registered at the close of business on a special record
date to be fixed by the Trustee for the payment of such defaulted
interest, notice whereof shall be given to the registered holders of the
Series A Debentures not less than 10 days prior to such special record
date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Series A Debentures may then be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture;
provided, however, that interest (other than interest described in the
next sentence) shall not be considered payable by the Company on any
Interest Payment Date falling within an Extension Period (as defined in
Section 3.01 below), unless the Company has elected to make a full or
partial payment of interest accrued on the Series A Debentures on that
Interest Payment Date. Any partial payment of interest accrued on the
Series A Debentures on any Interest Payment Date falling within an
Extension Period shall be paid pro rata to the registered holders of such
Debentures on the relevant Record Date in respect of such Interest Payment
Date, determined in accordance with Section 3.01 of this First
Supplemental Indenture, based upon the principal amount of Series A
Debentures then held by such registered holders.
The amount of interest payable for any period will be computed on
the basis of a 360-day year of twelve 30-day months and, for any period
shorter than a full calendar month, on the basis of the actual number of
days elapsed in such period. In the event that any date on which interest
is payable on the Series A Debentures is not a Business Day, then payment
of interest payable on such date will be made on the next succeeding day
which is a Business Day (and without any interest or other payment in
respect of any such delay), except that, if such Business Day is in the
next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and
effect as if made on such date.
ARTICLE TWO
Redemption of the Series A Debentures
Subject to the terms of Article Three of the Indenture, the
Company shall have the right to redeem the Series A Debentures, in whole
or in part, from time to time, on or after October 10, 2000, at a
redemption price equal to 100% of the principal amount of Series A
Debentures to be redeemed plus any accrued and unpaid interest thereon to
the date of such redemption. If the Series A Debentures are only
partially redeemed pursuant to this Section, the Series A Debentures will
be redeemed by lot or by any other method utilized by the Trustee.
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ARTICLE THREE
Extension of Interest Payment Period
SECTION 3.01. Subject to Section 4.06 of the Indenture, so long
as there shall not be an Event of Default with respect to the payment of
interest on the Series A Debentures, the Company shall have the right, at
any time during the term of the Series A Debentures, to extend any
interest payment period of such Series A Debentures at any time and from
time to time for a period not to exceed 20 consecutive calendar quarters
from the last Interest Payment Date to which interest was paid in full
(each, an "Extension Period"), provided that such Extension Period ends on
another Interest Payment Date. No interest shall be due and payable
during an Extension Period, but on the Interest Payment Date occurring at
the end of each Extension Period the Company shall pay to the holders of
record on the Record Date for such Interest Payment Date (regardless of
who the holders of record may have been on other dates during such
Extension Period) all accrued and unpaid interest on the Series A
Debentures, together with interest thereon compounded quarterly at the
rate specified for the Series A Debentures. Prior to the termination of
any Extension Period, the Company may pay all or (subject to the last
sentence of the first paragraph of Section 1.03 above) any portion of the
interest accrued on the Series A Debentures on any Interest Payment Date
to holders of record on the Record Date for that Interest Payment Date or
may from time to time further extend such Extension Period, provided that
any such Extension Period, together with all such previous and further
extensions thereof, shall not exceed 20 consecutive calendar quarters. If
the Company shall elect to pay all of the interest accrued on the Series A
Debentures on an Interest Payment Date during an Extension Period, that
Extension Period shall automatically terminate on that Interest Payment
Date. Upon the termination of an Extension Period and the payment of all
amounts of interest then due, the Company may commence a new Extension
Period, subject to the foregoing requirements.
SECTION 3.02. The Company shall give the Trustee written notice
of (i) any election by the Company to initiate an Extension Period and the
duration thereof, (ii) any election by the Company to extend an Extension
Period beyond the Interest Payment Date on which that Extension Period is
then scheduled to terminate and the duration of such extension and (iii)
any election by the Company to make a full or partial payment of interest
accrued on the Series A Debentures on any Interest Payment Date during an
Extension Period and the amount of such payment. In no event shall such
notice by the Company be given less than 15 Business Days prior to the
later of (A) the Record Date next preceding the applicable Interest
Payment Date and (B) five Business Days prior to such Interest Payment
Date. Upon receipt of any such notice, the Trustee shall give written
notice of the Company's election by mail to the Series A Debentureholders
not less than 10 Business Days prior to such Interest Payment Date. The
Company shall make a public announcement of any such election in
accordance with New York
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Stock Exchange rules not less than five Business Days prior to such Record
Date.
ARTICLE FOUR
Form of Series A Debenture
The Series A Debentures and the Trustee's Certificate of
Authentication to be endorsed thereon are to be substantially in the
following forms:
[FORM OF FACE OF DEBENTURE]
This Debenture is a Global Debenture within the meaning of the
Indenture (as defined hereinafter) and is registered in the name of a
Depository or a nominee of a Depository. This Debenture is exchangeable
for Debentures registered in the name of a person other than the
Depository or its nominee only in the limited circumstances described in
the Indenture, and no transfer of this Debenture (other than a transfer of
this Debenture as a whole by the Depository to a nominee of the Depository
or by a nominee of the Depository to the Depository or another nominee of
the Depository) may be registered except in limited circumstances
described in the Indenture.
Unless this Debenture is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York)
to the issuer or its agent for registration of transfer, exchange or
payment, and any Debenture issued is registered in the name of Cede & Co.,
or such other name as requested by an authorized representative of The
Depository Trust Company, and any payment hereon is made to Cede & Co.,
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A
PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co.,
has an interest herein.
No. _________________________ $___________________
CUSIP No. ___________________
8-1/4% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE,
SERIES A
Portland General Electric Company, a corporation duly organized
and existing under the laws of the State of Oregon (herein referred to as
the "Company", which term includes any successor corporation under the
Indenture), for value received, hereby promises to pay
to_____________________________, or registered assigns, the principal sum
of $75,000,000 on December 31, 2035, and to pay interest on such principal
sum from and including _______________ ______, 1995 or from the most
recent interest payment date (each such date, an "Interest Payment Date")
to which interest has been paid or duly provided for, payable quarterly in
arrears on March 31, June 30,
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September 30, and December 31 of each year,
commencing on December 31, 1995, at the rate of 8-1/4% per annum until the
principal hereof shall have become due and payable and on any overdue
principal and premium, if any, and (to the extent that payment of such
interest is enforceable under applicable law) on any overdue installment
of interest at the same rate per annum. The amount of interest payable on
any Interest Payment Date shall be computed on the basis of a 360-day year
of twelve 30-day months and, for any period shorter than a full calendar
month, on the basis of the actual number of days elapsed in such period.
In the event that any date on which interest is payable on this Debenture
is not a Business Day, as defined in the Indenture, then payment of
interest payable on such date will be made on the next succeeding day
which is a Business Day (and without any interest or other payment in
respect of any such delay), except that, if such Business Day is in the
next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and
effect as if made on such date. The interest installment so payable, and
punctually paid or duly provided for on any Interest Payment Date will, as
provided in the Indenture, be paid to the person in whose name this
Debenture (or one or more Predecessor Debentures, as defined in the
Indenture) is registered at the close of business on the Business Day next
preceding that Interest Payment Date (each, a "Record Date"); provided,
however, that if this Debenture shall not remain in the form of a Global
Debenture, the Company shall have the right to select another record date,
which shall be any day prior to, but not more than 15 days preceding, an
Interest Payment Date. Any such interest installment not punctually paid
or duly provided for on any Interest Payment Date shall forthwith cease to
be payable to the registered holder on the relevant Record Date, and may
be paid to the person in whose name this Debenture (or one or more
Predecessor Debentures) is registered at the close of business on a
special record date to be fixed by the Trustee for the payment of such
defaulted interest, notice whereof shall be given to the registered
holders of this series of Debentures not less than 10 days prior to such
special record date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which
Debentures of this series may then be listed, and upon such notice as may
be required by such exchange, all as more fully provided in the Indenture;
provided, however, that interest shall not be considered payable by the
Company on any Interest Payment Date falling within an Extension Period
(as defined below), unless the Company has elected to make a full or
partial payment of interest accrued on this Debenture on that Interest
Payment Date. Any partial payment of interest accrued on this series of
Debentures on any Interest Payment Date falling within an Extension Period
shall be paid pro rata to the registered holder of this Debenture on the
relevant Record Date in respect of such Interest Payment Date (determined
as hereinafter provided) based upon the principal amount of this Debenture
in relation to the aggregate principal amount of all Debentures of this
series then Outstanding, as defined in the Indenture. The principal of
and the interest on this Debenture shall be payable at the office or
agency of the Company
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maintained for that purpose in the Borough of
Manhattan, The City of New York, in any coin or currency of the United
States of America which at the time of payment is legal tender for payment
of public and private debts; provided, however, that payment of interest
may be made at the option of the Company by check mailed to the registered
holder at such address as shall appear in the Debenture Register or, with
respect to a registered holder who has delivered a written request to the
Trustee at least 14 days prior to the relevant Interest Payment Date
electing to have payments made by wire transfer to a designated account in
the United States, by wire transfer of immediately available funds to such
designated account.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinated and junior in right of payment to
the prior payment in full of all Senior Indebtedness, and this Debenture
is issued subject to the provisions of the Indenture with respect thereto.
Each holder of this Debenture, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee
on its behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination so provided and (c) appoints
the Trustee its attorney-in-fact for any and all such purposes. Each
holder hereof, by its acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Indebtedness, whether now outstanding
or hereafter incurred, and waives reliance by each such holder upon those
provisions.
This Debenture shall not be entitled to any benefit under the
Indenture, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on
behalf of the Trustee.
The provisions of this Debenture are continued [below] [on the
reverse side hereof] and such continued provisions shall for all purposes
have the same effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
Dated: _________________________
PORTLAND GENERAL ELECTRIC COMPANY
By ______________________________
Its:
Attest:
____________________________
[Assistant] Secretary
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[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of Debentures
described in the within-mentioned Indenture.
THE BANK OF NEW YORK ______________________________
as Trustee or as Authentication Agent
By ______________________ ______________________________
Authorized Signatory Authorized Signatory
[FORM OF REVERSE OF DEBENTURE]
This Debenture is one of a duly authorized series of debentures
of the Company (herein sometimes referred to as the "Debentures"),
specified in the Indenture (as defined below), all issued or to be issued
in one or more series under and pursuant to an Indenture dated as of
September 1, 1995 duly executed and delivered between the Company and THE
BANK OF NEW YORK, a New York banking corporation duly organized and
existing under the laws of the State of New York, as Trustee (herein
referred to as the "Trustee"), as supplemented by the First Supplemental
Indenture dated as of October 1, 1995 between the Company and the Trustee
(such Indenture as so supplemented being hereinafter referred to as the
"Indenture"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the rights, limitations of
rights, obligations, duties, and immunities thereunder of the Trustee, the
Company and the holders of the Debentures. By the terms of the Indenture,
the Debentures are issuable in series which may vary as to amount, date of
maturity, rate of interest and in other respects as in the Indenture
provided. This series of Debentures is limited in aggregate principal
amount as specified in the First Supplemental Indenture.
Subject to the terms of Article Three of the Indenture, the
Company shall have the right to redeem the Debentures of this series at
the option of the Company, without premium or penalty, in whole or in part
at any time and from time to time on or after October 10, 2000 (an
"Optional Redemption"), at a redemption price equal to 100% of the
principal amount of the Debentures of this series to be redeemed plus any
accrued and unpaid interest thereon to the date of such redemption. If
the Debentures of this series are only partially redeemed by the Company
pursuant to an Optional Redemption, the Debentures of this series will be
redeemed by lot or by any other method utilized by the Trustee.
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures of this series for the unredeemed portion hereof
will be issued in the name of the holder hereof upon the cancellation
hereof.
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In case an Event of Default, as defined in the Indenture, with
respect to the Debentures of this series shall have occurred and be
continuing, the principal of all of the Debentures of this series may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions for defeasance at any time of
the entire indebtedness of the Debentures of this series upon compliance
by the Company with certain conditions set forth therein.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the Debentures of each series affected at
the time Outstanding, to execute supplemental indentures for the purpose
of adding any provisions to, changing in any manner or eliminating any of
the provisions of the Indenture or of any supplemental indenture or of
modifying in any manner the rights of the holders of the Debentures;
provided, however, that no such supplemental indenture shall (i) extend
the fixed maturity of any Debentures of any series, reduce the principal
amount thereof, reduce the rate or extend the time of payment of interest
thereon or reduce any premium payable upon the redemption thereof, without
the consent of the holder of each Debenture so affected or (ii) reduce the
aforesaid percentage of Debentures, the holders of which are required to
consent to any such supplemental indenture, without the consent of the
holders of each Debenture then Outstanding and affected thereby. The
Indenture also contains provisions permitting the holders of a majority in
aggregate principal amount of the Debentures of all series at the time
Outstanding affected thereby, on behalf of the holders of the Debentures
of such series, to waive any past default in the performance of any of the
covenants contained in the Indenture, or established pursuant to the
Indenture with respect to such series, and its consequences, except a
default in the payment of the principal of or premium, if any, or interest
on any of the Debentures of such series, which default may be waived by
the unanimous consent of the holders affected. Any such consent or waiver
by the registered holder of this Debenture (unless revoked as provided in
the Indenture) shall be conclusive and binding upon such holder and upon
all future holders and owners of this Debenture and of any Debenture
issued in exchange herefor or in place hereof (whether by registration of
transfer or otherwise), irrespective of whether or not any notation of
such consent or waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Debenture at the time and place and at the rate and in
the money herein prescribed.
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Subject to Section 4.06 of the Indenture, so long as the Company
shall not be in default in the payment of interest on this series of
Debentures, the Company shall have the right, at any time during the term
of this series of Debentures, to extend any interest payment period of
this series of Debentures at any time and from time to time for a period
not to exceed 20 consecutive calendar quarters from the last Interest
Payment Date to which interest was paid in full (each, an "Extension
Period"), provided that such Extension Period ends on another Interest
Payment Date. No interest shall be due and payable during an Extension
Period, but on the Interest Payment Date occurring at the end of each
Extension Period the Company shall pay to the holders of record on the
Record Date for such Interest Payment Date (regardless of who the holders
of record may have been on other dates during such Extension Period) all
accrued and unpaid interest on this series of Debentures, together with
interest thereon, compounded quarterly, at the rate specified for this
series of Debentures. Prior to the termination of any Extension Period,
the Company may pay all or (subject to the provisions concerning pro rata
payment in the penultimate sentence of the first paragraph [on the face]
of this Debenture) any portion of the interest accrued on this series of
Debentures on any Interest Payment Date to holders of record on the Record
Date for that Interest Payment Date or may from time to time further
extend such Extension Period, provided that any such Extension Period,
together with all such previous and further extensions thereof, shall not
exceed 20 consecutive calendar quarters. If the Company shall elect to
pay all of the interest accrued on this series of Debentures on an
Interest Payment Date during an Extension Period, that Extension Period
shall automatically terminate on that Interest Payment Date. Upon the
termination of an Extension Period and the payment of all amounts of
interest then due, the Company may commence a new Extension Period,
subject to the foregoing requirements.
As provided in the Indenture and subject to certain limitations
therein set forth, this Debenture is transferable by the registered holder
hereof on the Debenture Register of the Company, upon surrender of this
Debenture for registration of transfer at the office or agency of the
Company designated for such purpose in the Borough of Manhattan, The City
of New York accompanied by a written instrument or instruments of transfer
in form satisfactory to the Company and the Trustee duly executed by the
registered holder hereof or its attorney duly authorized in writing and
thereupon one or more new Debentures of authorized denominations and for
the same aggregate principal amount and series will be issued to the
designated transferee or transferees. No service charge will be made for
any such transfer, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any paying agent and any Debenture
Registrar may deem and treat the registered holder hereof as the absolute
owner hereof (whether or not this
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Debenture shall be overdue and
notwithstanding any notice of ownership or writing hereon made by anyone
other than the Debenture Registrar) for the purpose of receiving payment
of or on account of the principal hereof, and interest due hereon and for
all other purposes, and neither the Company nor the Trustee nor any paying
agent nor any Debenture Registrar shall be affected by any notice to the
contrary.
No recourse shall be had for the payment of the principal of or
the interest on this Debenture, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture,
against any incorporator, stockholder, officer or director, past, present
or future, as such, of the Company or of any predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise, all
such liability being, by the acceptance hereof and as part of the
consideration for the issuance hereof, expressly waived and released.
This Global Debenture is exchangeable for Debentures in
certificated form only under certain limited circumstances set forth in
the Indenture. The Debentures of this series are issuable only in
registered form without coupons in denominations of $25 and any integral
multiple thereof. As provided in the Indenture and subject to certain
limitations herein and therein set forth, Debentures of this series so
issued are exchangeable for a like aggregate principal amount of
Debentures of this series of a different authorized denomination, as
requested by the holder surrendering the same.
All terms used in this Debenture which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
ARTICLE FIVE
Original Issue of Series A Debentures
Series A Debentures in the aggregate principal amount of
$75,000,000 may, upon execution of this First Supplemental Indenture, or
from time to time thereafter, be executed by the Company and delivered to
the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver such Debentures to the Company or upon a Company
Order, without any further action by the Company.
ARTICLE SIX
Miscellaneous Provisions
SECTION 6.01. Except as otherwise expressly provided in this
First Supplemental Indenture or in the form of Series A Debenture or
otherwise clearly required by the context hereof or thereof, all terms
used herein or in the form of Series A
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Debenture that are defined in the
Indenture shall have the several meanings respectively assigned to them
thereby.
SECTION 6.02. The Indenture, as supplemented by this First
Supplemental Indenture, is in all respects ratified and confirmed, and
this First Supplemental Indenture shall be deemed part of the Indenture in
the manner and to the extent herein and therein provided.
SECTION 6.03. The recitals herein contained are made by the
Company and not by the Trustee, and the Trustee assumes no responsibility
for the correctness thereof. The Trustee makes no representation as to
the validity or sufficiency of this First Supplemental Indenture or of the
Series A Debentures.
SECTION 6.04. This First Supplemental Indenture may be executed
in any number of counterparts, each of which shall be an original; but
such counterparts shall together constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, on the date or dates indicated
in the acknowledgments and as of the day and year first above written.
PORTLAND GENERAL ELECTRIC COMPANY
By: /s/ Joseph M. Hirko
Its: Senior Vice President,
Finance
Attest:
/s/ Steven F. McCarrel
Assistant Secretary
THE BANK OF NEW YORK, as Trustee
By: Vivian Georges
Attest:
_______________________________
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