<PAGE>
As filed with the Securities and Exchange
Commission on March 31, 1998
Registration No. 333-47485
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
PRE-EFFECTIVE
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
--------------------
PUBLIC SERVICE COMPANY Colorado 84-0296600
OF COLORADO
PSCO Capital Trust I Delaware Applied For
(State or other (I.R.S. Employer
jurisdiction of Identification Number)
incorporation or
organization)
1225 17th Street, Denver, CO 80202-5533, (303) 571-7511
(Address, including zip code, and telephone number,
including area code, of each registrant's principal executive offices)
--------------------
Brian P. Jackson
Senior Vice President and Chief Financial Officer
Public Service Company of Colorado
1225 17th Street, Denver, CO 80202-5533, (303) 571-7511
(Name, address, including zip code, and telephone number,
including area code, of agent for service for each registrant)
--------------------
Copies to:
S.A. MARSHALL, ESQ. G.W. WOLF, ESQ.
LeBoeuf, Lamb, Greene & Cahill Gordon & Reindel
MacRae L.L.P. 80 Pine Street
125 West 55th Street New York, NY 10005-1702
New York, NY 10019-5389 (212) 701-3000
(212) 424-8000
--------------------
Approximate date of commencement of proposed sale to the public: At such
time or times after the effective date of this Registration Statement as the
registrant shall determine based on market conditions and other factors.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box./ /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering./ /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering./ /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box./ /
--------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(a) OF THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE
REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES
AND EXCHANGE COMMISSION, ACTING PURSUANT TO SECTION 8(a), MAY DETERMINE.
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<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement to these securities has been filed with the Securities
and Exchange Commission. These securities may not be sold nor may offers to buy
be accepted prior to the time the registration statement becomes effective.
This prospectus shall not constitute an offer to sell or the solicitation of any
offer to buy nor shall there be any sale of these securities in any state in
which such offer, solicitation or sale would be unlawful prior to registration
or qualification under the securities laws of any such state.
<PAGE>
SUBJECT TO COMPLETION, DATED MARCH 31, 1998
PROSPECTUS
$450,000,000
[PSCO LOGO]
FIRST COLLATERAL TRUST BONDS
SENIOR DEBT SECURITIES
SUBORDINATED DEBT SECURITIES
--------------------
PSCO CAPITAL TRUST I
PREFERRED SECURITIES
FULLY AND UNCONDITIONALLY GUARANTEED,
AS DESCRIBED HEREIN, BY
PUBLIC SERVICE COMPANY OF COLORADO
--------------------
Public Service Company of Colorado, a Colorado corporation (the
"Company"), may offer, from time to time, (i) first collateral trust bonds,
which may include medium term notes (the "New Bonds"), (ii) unsecured senior
debt securities consisting of debentures, notes and/or other evidences of
indebtedness representing unsecured obligations of the Company (the "Senior
Debt Securities"), or (iii) unsecured subordinated debt securities consisting
of debentures, notes and/or other evidences of indebtedness representing
unsecured obligations of the Company (the "Subordinated Debt Securities",
together with the Senior Debt Securities, the "Debt Securities"), in each
case in one or more series, and in amounts, at prices and on terms to be
determined at or prior to the time or times of sale.
PSCO Capital Trust I (the "Trust"), a statutory business trust
formed under the laws of the State of Delaware, may offer a single series of
its preferred securities representing undivided beneficial interests in the
assets of the Trust ("Preferred Securities") in an amount and at the price
and terms to be determined at or prior to the time of sale. The Company will
be the owner of beneficial interests represented by the common securities of
the Trust (the "Common Securities", together with the Preferred Securities,
the "Trust Securities"). The payment of periodic cash distributions
("Distributions") with respect to the Preferred Securities out of moneys held
by the Trust, and payment upon liquidation, redemption or otherwise with
respect to such Preferred Securities, will be guaranteed by the Company to
the extent described herein (the "Preferred Securities Guarantee"). See
"Description of the Preferred Securities Guarantee" below. The Company's
obligations under the Preferred Securities Guarantee are subordinate and
junior in right of payment to all other liabilities of the Company and rank
PARI PASSU with the most senior preferred stock, if any, now outstanding or
issued from time to time by the Company. The Company's Subordinated Debt
Securities may be issued from time to time in one or more series directly or
may be issued and sold to the Trust, or a trustee of the Trust, in connection
with the investment of the proceeds from the offering of Preferred Securities
and Common Securities (as defined herein) of the Trust. Subordinated Debt
Securities purchased by the Trust may subsequently be distributed pro rata to
the holders of Preferred Securities and Common Securities in connection with
the dissolution of the Trust.
The New Bonds, Senior Debt Securities, Subordinated Debt Securities
and Preferred Securities together with the related Preferred Securities
Guarantee are collectively referred to as the "Offered Securities".
<PAGE>
Certain specific terms of the Offered Securities in respect of
which this Prospectus is being delivered will be set forth in an accompanying
Prospectus Supplement or Supplements, together with the terms of the
particular Offered Securities being offered by such Prospectus Supplement or
Supplements, the initial price thereof and the net proceeds from the sale
thereof. The Prospectus Supplement will set forth with regard to the
particular Offered Securities, without limitation and where applicable, the
following: (i) in the case of the New Bonds, the designation, aggregate
principal amount, maturity date or dates, interest rate or rates and times of
payment of interest, the terms of any redemption provisions, the purchase
price and any other specific terms of the offering, (ii) in the case of the
Debt Securities, the designation, aggregate principal amount, denominations,
maturity date or dates, premium, if any, terms of subordination, if any, and
exchange, conversions, redemption or sinking fund provisions, interest
payment dates, interest rate or rates (which may be fixed or variable) or
method of calculating interest, currency or currency units in which principal
of, premium, if any, and interest will be payable, purchase price, any
listing on a securities exchange, any right of the Company to defer payment
of interest and the maximum length of such deferral period and any other
specific terms of the offering and (iii) in the case of the Preferred
Securities, the specific title, aggregate amount, number of securities,
stated liquidation preference per security, purchase price, any listing on a
securities exchange, dividend rate (or method of calculation thereof), dates
on which dividends shall be payable and dates from which dividends shall
accrue, any voting rights, any redemption, exchange or sinking fund
provisions, any other rights, preferences, privileges, limitations or
restrictions relating to the Preferred Securities and the terms upon which
the proceeds of the Preferred Securities shall be used to purchase a specific
series of Subordinated Debt Securities of the Company.
The Offered Securities may be sold to or through underwriters,
through dealers or agents, directly to purchasers or through a combination of
such methods. See "Plan of Distribution". The names of any underwriters,
dealers or agents involved in the sale of the Offered Securities in respect
of which this Prospectus is being delivered and any applicable fee,
commission or discount arrangements with them will be set forth in the
related Prospectus Supplement. See "Plan of Distribution" for possible
indemnification arrangements for dealers, underwriters and agents.
--------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE
COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
--------------------
The date of this Prospectus is , 1998.
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<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports and other information with the Securities
and Exchange Commission (the "SEC") and the New York Stock Exchange. Such
reports and other information can be inspected and copied at the public
reference facilities maintained by the SEC at Room 1024, Judiciary Plaza, 450
Fifth Street, N.W., Washington, D.C., and at the following regional offices
of the SEC: New York Regional Office, 13th Floor, Seven World Trade Center,
New York, New York and Chicago Regional Office, 14th Floor, 500 West Madison
Street, Chicago, Illinois. Copies of such materials can also be obtained at
prescribed rates from the Public Reference Section of the SEC at its
principal office at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.
20549. Such material is also available from the SEC's Web site at
"http://www.sec.gov". Certain of the Company's securities are listed on the
New York Stock Exchange and such reports and other information can also be
inspected and copied at the office of such exchange on the 7th Floor, 20
Broad Street, New York, New York.
This Prospectus constitutes a part of a Registration Statement on Form
S-3 (together with all amendments and exhibits thereto, the "Registration
Statement") filed by the Company and the Trust with the SEC under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to
the Offered Securities. This Prospectus does not contain all of the
information set forth in such Registration Statement, certain parts of which
are omitted in accordance with the rules and regulations of the SEC.
Reference is made to such Registration Statement and to the exhibits relating
thereto for further information with respect to the Company, the Trust, and
the Offered Securities. Any statements contained herein concerning the
provisions of any document filed as an exhibit to the Registration Statement
or otherwise filed with the SEC or incorporated by reference herein are not
necessarily complete, and in each instance reference is made to the copy of
such document so filed for a more complete description of the matter
involved. Each such statement is qualified in its entirety by such reference.
No separate financial statements of the Trust have been included or
incorporated by reference herein. The Company does not consider that such
financial statements would be material to holders of the Preferred Securities
because (i) all of the voting securities of the Trust will be owned, directly
or indirectly, by the Company, a reporting company under the Exchange Act,
(ii) the Trust has no independent operations but exists for the sole purpose
of issuing securities representing undivided beneficial interests in the
assets of the Trust and investing the proceeds thereof in Subordinated Debt
Securities issued by the Company and (iii) the Company's obligations
described herein and in any accompanying Prospectus Supplement under the
Declaration of Trust of the Trust, the Preferred Securities Guarantee, the
Subordinated Debt Securities purchased by the Trust and the related
Indenture, taken together, constitute a full and unconditional guarantee of
payments due on the Preferred Securities. See "Description of the
Subordinated Debt Securities" and "Description of the Preferred Securities
Guarantee".
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates herein by reference the following documents
which have been filed by the Company with the SEC pursuant to the Exchange Act:
1. The Company's Annual Report on Form 10-K for the year ended
December 31, 1997 (included in the New Century Energies, Inc. combined Annual
Report on Form 10-K for the year ended December 31, 1997).
All documents filed by the Company with the SEC pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of filing of the
Registration Statement of which this Prospectus is a part and prior to the
termination of the offering made hereby shall be deemed to be incorporated
herein by reference and to be a part hereof from the respective dates of
filing thereof. The documents incorporated or deemed to be
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<PAGE>
incorporated herein by reference are sometimes hereinafter called the
"Incorporated Documents". Any statement contained herein or in an
Incorporated Document shall be deemed to be modified or superseded for all
purposes to the extent that a statement contained herein or in any Prospectus
Supplement or in any subsequently filed Incorporated Document modifies or
supersedes such statement. Any statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a part of this
Prospectus or any Prospectus Supplement.
THE COMPANY WILL PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM THIS
PROSPECTUS IS DELIVERED, UPON THE REQUEST OF ANY SUCH PERSON, A COPY OF ANY
OR ALL OF THE INCORPORATED DOCUMENTS, EXCLUDING THE EXHIBITS THERETO UNLESS
SUCH EXHIBITS ARE SPECIFICALLY INCORPORATED BY REFERENCE INTO SUCH DOCUMENTS.
REQUESTS FOR SUCH DOCUMENTS SHOULD BE DIRECTED TO BRIAN P. JACKSON, SENIOR
VICE PRESIDENT AND CHIEF FINANCIAL OFFICER, BY MAIL TO PUBLIC SERVICE COMPANY
OF COLORADO, SUITE 900, 1225 17TH STREET, DENVER, COLORADO 80202-5533, OR BY
TELEPHONE AT (303) 571-7511.
In addition to the historical information contained or incorporated by
reference herein, this Prospectus contains or incorporates by reference a
number of "forward-looking statements" within the meaning of the Exchange
Act. Such statements address future events and conditions concerning capital
expenditures, resolution and impact of litigation, regulatory matters,
liquidity and capital resources and accounting matters. Actual results in
each case could differ materially from those projected in such statements due
to a variety of factors including, without limitation, restructuring of the
utility industry; future economic conditions; earnings retention and dividend
payout policies; developments in the legislative, regulatory and competitive
environments in which the Company operates; and other circumstances that
could affect anticipated revenues and costs, such as compliance with laws and
regulations. These and other factors are discussed in the Company's filings
with the SEC.
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<PAGE>
THE COMPANY
The Company, incorporated through merger of predecessors under the laws
of the State of Colorado in 1924, is an operating public utility engaged
principally in the generation, purchase, transmission, distribution and sale
of electricity and in the purchase, transmission, distribution, sale and
transportation of natural gas, with the Company's principal distribution
center being the Denver metropolitan area. The Company's executive offices
are located at 1225 17th Street, Denver, Colorado 80202-5533, where the
telephone number is (303) 571-7511.
On August 1, 1997, the Company and Southwestern Public Service Company
consummated a business combination and each became a wholly-owned subsidiary
of New Century Energies, Inc. ("NCE"), a registered holding company under the
Public Utility Holding Company Act of 1935. The transaction has been
accounted for as a pooling of interests for accounting purposes. As a result
of the transaction, NCE directly owns the following subsidiaries which
previously had been directly owned by the Company: Cheyenne Light, Fuel and
Power Company and WestGas InterState, Inc. The Company directly owns the
following subsidiaries: PS Colorado Credit Corporation ("PSCCC"), PSR
Investments, Inc., 1480 Welton, Inc., Fuel Resources Development Co., a
dissolved corporation, and New Century International, Inc., which was
established in 1997 in connection with the Company's investment in Yorkshire
Power Group, plc. The Company intends to transfer the capital stock of PSCCC
to NCE after receipt of regulatory and other approvals. NC Enterprises,
Inc., a wholly-owned subsidiary of NCE, directly owns the following
subsidiaries which previously had been directly owned by the Company: e
prime, inc. and Natural Fuels Corporation. The Company intends that New
Century International, Inc., will be transferred to and become a wholly-owned
subsidiary of NC Enterprises, Inc. following receipt of appropriate
regulatory approval.
THE TRUST
The Trust is a statutory business trust formed under Delaware law
pursuant to (i) a declaration of trust (as such declaration will be amended
and restated substantially as set forth in the form attached to the
Registration Statement of which this Prospectus is a part, the "Declaration")
executed by the Company as depositor for the Trust (the "Depositor"), and the
PSCO Trustees (as defined herein) of such trust and (ii) the filing of a
certificate of trust with the Secretary of State of the State of Delaware.
The Trust exists for the exclusive purposes of (i) issuing and selling the
Preferred Securities and the Common Securities, (ii) using the gross proceeds
from the sale of the Trust Securities to acquire a corresponding series of
Subordinated Debt Securities of the Company and (iii) maintaining the status
of the Trust as a grantor trust for federal income tax purposes and engaging
in only those other activities necessary, appropriate, convenient or
incidental to the foregoing. All of the Common Securities will be directly
or indirectly owned by the Company. The Common Securities will rank PARI
PASSU, and payments will be made thereon pro rata, with the Preferred
Securities, except that upon the occurrence and continuance of an event of
default with respect to the corresponding series of Subordinated Debt
Securities of the Company, the rights of the holders of the Common Securities
to payment of cash distributions and payments upon redemption, liquidation or
otherwise will be subordinated to the rights of the holders of the Preferred
Securities. The Company will directly or indirectly acquire Common
Securities in an aggregate liquidation amount equal to at least 3% of the
total capital of the Trust.
The Trust's business and affairs are conducted by three trustees, each
appointed by the Company in its capacity as holder of the Common Securities:
(i) The Bank of New York (the "Property Trustee"); (ii) The Bank of New York
(Delaware) (the "Delaware Trustee"); and (iii) one individual trustee who is
an employee or officer of or affiliated with the Company (the "Administrative
Trustee", and collectively with the Property Trustee and the Delaware
Trustee, the "PSCO Trustees"). The holder of the Common Securities, or the
holders of at least a majority in aggregate liquidation amount of the Trust's
Preferred Securities if an event of default under the Declaration has
occurred and is continuing (a "Declaration Event of Default"), will be
entitled to remove and replace the Property Trustee and the Delaware Trustee.
In no event will the holders of the Preferred Securities have the right to
vote to appoint, remove or replace the Administrative Trustee, which
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<PAGE>
voting rights are vested exclusively in the holder of the Common Securities.
The duties and obligations of each of the PSCO Trustees are governed by the
Declaration.
The Company will pay all fees and expenses related to the Trust and the
offering of its Preferred Securities and will pay, directly or indirectly,
all ongoing costs, expenses and liabilities of the Trust except the Trust's
obligations under its Trust Securities.
The principal place of business of the Trust shall be c/o Public Service
Company of Colorado, 1225 17th Street, Suite 900, Denver, Colorado
80202-5533, where the telephone number is (303) 571-7511.
RATIO OF CONSOLIDATED EARNINGS TO
CONSOLIDATED FIXED CHARGES
<TABLE>
Twelve Months Ended
December 31,
1993 1994 1995 1996 1997
--------------------------------------
<S> <C> <C> <C> <C> <C>
Ratio of consolidated earnings
to consolidated fixed charges 2.54 2.53 2.78 2.75 2.49
</TABLE>
The ratio for future periods will be included in the Company's annual
and quarterly reports filed pursuant to the Exchange Act. Such reports are
incorporated by reference into this Prospectus at the time they are filed.
APPLICATION OF PROCEEDS
Unless otherwise indicated in the accompanying Prospectus Supplement,
the Company intends to use the net proceeds from the sale of any of the New
Bonds or Debt Securities offered hereby (i) to refinance short-term and other
debt, (ii) to repurchase or redeem outstanding preferred stock of the
Company and (iii) for general corporate purposes. Any specific allocation
of the proceeds to a particular purpose that has been made at the date of any
Prospectus Supplement will be described therein. The Trust will use the
proceeds from the sale of its Preferred Securities to purchase Subordinated
Debt Securities of the Company.
DESCRIPTION OF THE NEW BONDS
GENERAL: The New Bonds will be issued in one or more series as fully
registered bonds, without coupons, under an Indenture, dated as of October 1,
1993 (the "Original 1993 Mortgage"), between the Company and First Trust of
New York, National Association, as successor trustee (together with any
further successor thereto, the "1993 Mortgage Trustee"). Effective March 30,
1998, the name of First Trust New York, National Association, changed to U.S.
Bank Trust National Association. The Original 1993 Mortgage, as supplemented
and to be supplemented by various supplemental indentures, including one or
more supplemental indentures relating to the New Bonds, is hereinafter
referred to as the "1993 Mortgage". The summaries under this heading do not
purport to be complete and are subject to, and qualified in their entirety
by, the detailed provisions of the 1993 Mortgage. Capitalized terms used
under this heading which are not otherwise defined hereunder shall have the
meanings ascribed thereto in the 1993 Mortgage. Wherever particular
provisions of the 1993 Mortgage or terms defined therein are referred to,
such provisions or definitions are incorporated by reference as a part of the
statements made herein and such statements are qualified in their entirety by
such reference. References to article and section numbers herein, unless
otherwise indicated, are references to article and section numbers of the
Original 1993 Mortgage.
The 1993 Mortgage provides that, in addition to the New Bonds, other
debt securities may be issued thereunder, without limitation as to the
aggregate principal amount, on the basis of Class A Bonds (as hereinafter
defined), property additions, retired Mortgage Securities (as hereinafter
defined) and cash. See
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<PAGE>
"Issuance of Additional Mortgage Securities". The New Bonds and all other
debt securities heretofore or hereafter issued under the 1993 Mortgage are
collectively referred to herein as the "Mortgage Securities" or the "Bonds".
Reference is made to the Prospectus Supplement and any supplement
thereto for a description of the following terms of the series of New Bonds
in respect of which this Prospectus is being delivered: (i) the title of
such New Bonds; (ii) the aggregate principal amount of such New Bonds; (iii)
the price (expressed as a percentage of principal amount) at which such New
Bonds will be issued; (iv) the date or dates on which the principal of such
New Bonds is payable; (v) the rate or rates at which such New Bonds will bear
interest, if any, the date or dates from which such interest will accrue, the
dates on which such interest will be payable ("Interest Payment Dates"), and
the regular record dates for the interest payable on such Interest Payment
Dates; (vi) the option, if any, of the Company to redeem such New Bonds and
the period or periods within which, or the date or dates on which, the prices
at which and the terms and conditions upon which, such New Bonds may be
redeemed, in whole or in part, upon the exercise of such option; (vii) the
obligation, if any, of the Company to redeem or purchase such New Bonds at
the option of the registered holder or pursuant to any sinking fund or
analogous provisions and the period or periods within which, or the date or
dates on which, the price or prices at which and the terms and conditions
upon which such New Bonds will be redeemed or purchased, in whole or in part,
pursuant to such obligation; (viii) the denominations in which such New Bonds
will be issuable, if other than $1,000 and integral multiples thereof; (ix)
whether such New Bonds are to be issued in whole or in part in book-entry
form and represented by one or more global New Bonds and, if so, the identity
of the depository for such global New Bonds and the specific terms of the
depository arrangements therefor; and (x) any other terms of such New Bonds,
including with respect to any series, if applicable, any consents to
modifications or waivers of covenants contained in the 1993 Mortgage or the
1939 Mortgage (as defined below).
PAYMENT OF BONDS; TRANSFERS; EXCHANGES: Except as may be provided in the
applicable Prospectus Supplement or any supplement thereto, interest, if any,
on each Bond payable on each Interest Payment Date will be paid to the person
in whose name such Bond is registered (the registered holder of any Mortgage
Security being hereinafter called a "Holder") as of the close of business on
the regular record date relating to such Interest Payment Date; provided,
however, that interest payable at maturity (whether at stated maturity, upon
redemption or otherwise, hereinafter "Maturity") will be paid to the person
to whom principal is paid at Maturity. However, if there has been a default
in the payment of interest on any Bond, such defaulted interest may be
payable to the Holder of such Bond as of the close of business on a date
selected by the 1993 Mortgage Trustee which is not more than 30 days and not
less than 10 days prior to the date proposed by the Company for payment of
such defaulted interest or in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Bond may be listed,
if the 1993 Mortgage Trustee deems such manner of payment practicable. (See
Section 307.)
Unless otherwise specified in a Prospectus Supplement or supplement
thereto, the principal of and premium, if any, and interest on the Bonds at
Maturity will be payable upon presentation of the Bonds at the corporate
trust office of U.S. Bank Trust National Association, in New York, New York,
as Paying Agent for the Company. The Company may change the Place of
Payment on the Bonds, may appoint one or more additional Paying Agents
(including the Company) and may remove any Paying Agent, all at its
discretion. (See Section 602 and Article One of the Supplemental Indenture(s)
relating to the New Bonds.)
Unless otherwise specified in a Prospectus Supplement or supplement
thereto, the transfer of Bonds may be registered, and Bonds may be exchanged
for other Bonds of the same series and tranche, of authorized denominations
and of like tenor and aggregate principal amount, at the corporate trust
office of U.S. Bank Trust National Association, in New York, New York,
as Security Registrar for the Bonds. The Company may change the place
for registration of transfer and exchange of the Bonds, and may designate one
or more additional places for such registration and exchange, all at its
discretion. (See Section 602.) Except as otherwise provided in the
applicable Prospectus Supplement or a supplement thereto, no service charge
will be
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<PAGE>
made for any transfer or exchange of the Bonds, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any registration of transfer or
exchange of the Bonds. The Company will not be required to execute or to
provide for the registration of transfer of or the exchange of (a) any Bond
during a period of 15 days prior to giving any notice of redemption or (b)
any Bond selected for redemption in whole or in part, except the unredeemed
portion of any Bond being redeemed in part. (See Section 305.)
REDEMPTION: Any terms for the optional or mandatory redemption of New
Bonds will be set forth in the Prospectus Supplement or a supplement thereto.
Except as shall otherwise be provided in the applicable Prospectus Supplement
or a supplement thereto with respect to Bonds redeemable at the option of the
Holder, Bonds will be redeemable only upon notice by mail not less than 30
nor more than 60 days prior to the date fixed for redemption, and, if less
than all the Bonds of a series, or any tranche thereof, are to be redeemed,
the particular Bonds to be redeemed will be selected by such method as shall
be provided for any particular series, or in the absence of any such
provision, by such method of random selection as the Security Registrar deems
fair and appropriate. (See Sections 503 and 504.)
Any notice of redemption at the option of the Company may state that
such redemption will be conditional upon receipt by the Paying Agent or
Agents, on or prior to the date fixed for such redemption, of money
sufficient to pay the principal of and premium, if any, and interest, if any,
on such Bonds and that if such money has not been so received, such notice
will be of no force and effect and the Company will not be required to redeem
such Bonds. (See Section 504.)
While the Original 1993 Mortgage contains provisions for the maintenance
of the Mortgaged Property, it does not contain any provisions for a
maintenance or sinking fund and, except as may be provided in the applicable
Prospectus Supplement or a supplement thereto, there will be no provisions
for any such funds for the New Bonds.
SECURITY: GENERAL. Except as discussed under this heading and under
"Issuance of Additional Mortgage Securities" below, all Mortgage Securities
now or hereafter issued under the 1993 Mortgage will be secured, equally and
ratably, primarily by
(a) an equal principal amount of first mortgage bonds (which need
not bear interest) issued under the Company's Indenture, dated as of
December 1, 1939 (the "Original 1939 Mortgage"), between the Company and
U.S. Bank Trust National Association (formerly First Trust of New York,
National Association), as successor trustee (together with any further
successor thereto, the "1939 Mortgage Trustee"), and delivered to the
Trustee under the 1993 Mortgage (the Original 1939 Mortgage, as amended
and supplemented, being hereinafter called the "1939 Mortgage"). As
discussed under "DESCRIPTION OF THE 1939 MORTGAGE--Security", the 1939
Mortgage constitutes, subject to certain exceptions, a first mortgage
lien on substantially all properties of the Company; and
(b) the lien of the 1993 Mortgage on substantially all of the
Company's properties used or to be used in or in connection with the
business of generating, purchasing, transmitting, distributing and/or
selling electric energy (the "Electric Utility Business"), which lien is
junior to the lien of the 1939 Mortgage.
As discussed below under "Class A Bonds", following a merger or
consolidation of another corporation into the Company or the transfer to the
Company of property subject to the lien of an existing mortgage and the
assumption by the Company of all the obligations of the mortgagor under such
mortgage, the Company could deliver to the 1993 Mortgage Trustee bonds issued
under a mortgage existing on the properties acquired in such transaction in
lieu of or in addition to bonds issued under the 1939 Mortgage. In such
event, the Mortgage Securities would be secured, additionally, by such bonds
and by the lien of the 1993 Mortgage on such properties, which would be
junior to the liens of such existing mortgage and the 1939 Mortgage on
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such properties. The 1939 Mortgage and all such other mortgages are
hereinafter collectively referred to as "Class A Mortgages", and all bonds
issued under the Class A Mortgages and delivered to the 1993 Mortgage Trustee
are hereinafter collectively referred to as "Class A Bonds". If and when no
Class A Mortgages are in effect, the 1993 Mortgage will constitute a first
mortgage lien on all property of the Company subject thereto, subject to
certain Permitted Liens (as discussed below under "Lien of the 1993
Mortgage"). As discussed below under "Class A Bonds", at the date of this
Prospectus the only Class A Mortgage is the 1939 Mortgage. The Company
currently believes that it is possible that prior to the Stated Maturity of
the New Bonds, all Class A Bonds outstanding under the 1939 Mortgage, other
than Class A Bonds delivered to and held by the 1993 Mortgage Trustee as the
basis of authentication and delivery of Mortgage Securities, may have been
paid, redeemed or otherwise retired and that, thereupon, the Class A Bonds
issued under the 1939 Mortgage would be surrendered for cancellation and the
1939 Mortgage would be discharged. Upon discharge of the 1939 Mortgage and
assuming no other Class A Mortgage exists at the time, the 1993 Mortgage
would become a first mortgage lien on all property of the Company subject
thereto, subject to certain Permitted Liens.
CLASS A BONDS. Class A Bonds issued as the basis for the authentication
and delivery of Mortgage Securities will be issued and delivered to, and
registered in the name of, the 1993 Mortgage Trustee or its nominee and will
be owned and held by the 1993 Mortgage Trustee, subject to the provisions of
the 1993 Mortgage, for the benefit of the Holders of all Mortgage Securities
Outstanding from time to time, and the Company will have no interest in such
Class A Bonds. Class A Bonds issued as the basis of authentication and
delivery of Mortgage Securities (a) will mature or be subject to mandatory
redemption on the same dates, and in the same principal amounts, as such
Mortgage Securities and (b) will contain, in addition to any mandatory
redemption provisions applicable to all Class A Bonds Outstanding under the
related Class A Mortgage, mandatory redemption provisions correlative to
provisions for mandatory redemption of such Mortgage Securities (pursuant to
a sinking fund or otherwise), or for redemption at the option of the Holder
of such Mortgage Securities. Class A Bonds issued as the basis for
authentication and delivery of a series or tranche of Mortgage Securities (x)
may, but need not, bear interest, any such interest to be payable at the same
times as interest on the Mortgage Securities of such series or tranche and
(y) may, but need not, contain provisions for the redemption thereof at the
option of the Company, any such redemption to be made at a redemption price
or prices not less than the principal amount of such Class A Bonds. (See
Sections 402 and 701.) To the extent that Class A Bonds issued as the basis
for the authentication and delivery of New Bonds do not bear interest,
holders of Mortgage Securities will not have the benefit of the lien of the
1939 Mortgage in respect of an amount equal to accrued interest, if any, on
such New Bonds; however, such holders will nevertheless have the benefit of
the lien of the 1993 Mortgage in respect of such amount.
Any payment by the Company of principal of, or premium or interest on,
the Class A Bonds held by the 1993 Mortgage Trustee will be applied by the
1993 Mortgage Trustee to the payment of any principal, premium or interest,
as the case may be, in respect of the Mortgage Securities which is then due
and, to the extent of such application, the obligation of the Company under
the 1993 Mortgage to make such payment in respect of the Mortgage Securities
will be deemed satisfied and discharged. If, at the time of any such payment
of principal of Class A Bonds, there shall be no principal then due in
respect of the Mortgage Securities, such payment in respect of the Class A
Bonds will be deemed to constitute Funded Cash and will be held by the 1993
Mortgage Trustee as part of the Mortgaged Property, to be withdrawn, used or
applied as provided in the 1993 Mortgage; and thereafter the Mortgage
Securities authenticated and delivered on the basis of such Class A Bonds
will, to the extent of such payment of principal, be deemed to have been
authenticated and delivered on the basis of the deposit of cash. If, at the
time of any such payment of premium or interest on Class A Bonds, there shall
be no premium or interest, as the case may be, then due in respect of the
Mortgage Securities, such payment will be remitted to the Company at its
request; provided, however, that if an Event of Default, as described below,
shall have occurred and be continuing, such payment shall be held as part of
the Mortgaged Property until such Event of Default shall have been cured or
waived. (See Section 702 and "Withdrawal of Cash" below.) Any payment by
the Company of principal of, or premium or interest on, Mortgage Securities
authenticated and delivered on the basis of the issuance and delivery to the
1993 Mortgage Trustee of Class A Bonds (other than by application of the
proceeds of a payment in respect of such Class A
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Bonds) will, to the extent thereof, be deemed to satisfy and discharge the
obligation of the Company, if any, to make a payment of principal, premium or
interest, as the case may be, in respect of such Class A Bonds which is then
due. (See Section 702 and Article One of the Supplemental Indenture(s) to
the 1939 Mortgage creating the Class A Bonds to be delivered in connection
with the issuance of the New Bonds.)
The 1993 Mortgage Trustee may not sell, assign or otherwise transfer any
Class A Bonds except to a successor trustee under the 1993 Mortgage. (See
Section 704.) At the time any Mortgage Securities of any series or tranche
which have been authenticated and delivered upon the basis of the issuance
and delivery to the 1993 Mortgage Trustee of Class A Bonds, cease to be
Outstanding (other than as a result of the application of the proceeds of the
payment or redemption of such Class A Bonds) the 1993 Mortgage Trustee will
surrender to or upon the order of the Company an equal principal amount of
such Class A Bonds. (See Section 703.)
At the date of this Prospectus, the only Class A Mortgage is the 1939
Mortgage and the only Class A Bonds issuable at this time are first mortgage
bonds issuable thereunder. The 1993 Mortgage provides that, in the event
that a corporation which was a mortgagor under a mortgage shall have merged
into or consolidated with the Company, or shall have conveyed or otherwise
transferred property to the Company subject to the lien of such a mortgage
and the Company shall have assumed all the obligations of the mortgagor
thereunder, and in either case such mortgage constitutes a lien on properties
of such other corporation or on such transferred properties, as the case may
be, prior to the lien of the 1993 Mortgage, such existing mortgage may be
designated by the Company as an additional Class A Mortgage. Bonds
thereafter issued under such additional mortgage would be Class A Bonds and
could provide the basis for the authentication and delivery of Mortgage
Securities under the 1993 Mortgage. (See Section 706.) When no Class A Bonds
are Outstanding under a Class A Mortgage except for Class A Bonds held by the
1993 Mortgage Trustee, then, at the request of the Company and subject to
satisfaction of certain conditions, the 1993 Mortgage Trustee will surrender
such Class A Bonds for cancellation and the related Class A Mortgage will be
satisfied and discharged, the lien of such Class A Mortgage on the Company's
property will cease to exist and the priority of the lien of the 1993
Mortgage will be increased accordingly. (See Section 707.)
The 1993 Mortgage contains no restrictions on the issuance of Class A
Bonds in addition to Class A Bonds issued to the 1993 Mortgage Trustee as the
basis for the authentication and delivery of Mortgage Securities. Class A
Bonds may currently be issued under the 1939 Mortgage on the basis of
property additions, retirements of bonds previously issued under the 1939
Mortgage and cash deposited with the 1939 Mortgage Trustee. See "DESCRIPTION
OF THE 1939 MORTGAGE--Issuance of Additional Bonds Under the 1939 Mortgage".
LIEN OF THE 1993 MORTGAGE. In the opinion of LeBoeuf, Lamb, Greene &
MacRae, L.L.P., based on information obtained from public records and from
the Company, the 1993 Mortgage constitutes a mortgage lien on the property
specifically or generally described or referred to therein as subject to the
lien thereof, except such property as may have been disposed of or released
from the lien thereof in accordance with the terms thereof, subject to no
liens prior to the lien of the 1993 Mortgage other than the lien of the 1939
Mortgage (so long as the 1939 Mortgage remains in effect), the liens of any
other Class A Mortgages and Permitted Liens; and the 1993 Mortgage
effectively subjects to the lien thereof property (other than excepted
property) acquired by the Company after the date of the execution and
delivery thereof to the extent, and subject to the qualifications,
hereinafter described. So long as such 1939 Mortgage is in effect, the Bonds
will have the benefit of the first mortgage lien of the 1939 Mortgage on such
property, and the benefit of the prior lien of any additional Class A
Mortgage on any property subject thereto, to the extent of the aggregate
principal amount of Class A Bonds issued under the respective Class A
Mortgages and held by the 1993 Mortgage Trustee for the benefit of holders of
First Collateral Trust Bonds, including the New Bonds. The properties
subject to the lien of the 1993 Mortgage, whether currently owned or
hereafter acquired, are the Company's properties used or to be used in or in
connection with the Electric Utility Business (whether or not
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such is the sole use of such properties). Properties relating to the
Company's gas and steam businesses are not subject to the lien of the 1993
Mortgage.
The lien of the 1993 Mortgage is subject to Permitted Liens which
include tax liens and other governmental charges which are not delinquent or
which are being contested in good faith; certain workmen's, materialmen's and
other liens; certain judgment liens and attachments; certain easements,
leases, reservations or other rights of others (including governmental
entities) in, on, over, and/or across, and laws, regulations and restrictions
affecting, and defects, irregularities, exceptions and limitations in title
to, certain property of the Company; certain leasehold interests; certain
rights and interests of others which relate to common ownership or joint use
of property and liens on the interests of others in such property; certain
non-exclusive rights and interests retained by the Company with respect to
property used or to be used in or in connection with both the businesses in
which the Mortgaged Property is used and any other businesses; and certain
other liens and encumbrances. (See Granting Clauses and Section 101.)
There are excepted from the lien of the 1993 Mortgage, among other
things, cash and securities not paid or delivered to, deposited with or held
by the 1993 Mortgage Trustee under the 1993 Mortgage; contracts, leases and
other agreements of whatsoever kinds, contract rights, bills, notes and other
instruments, accounts receivable, claims, governmental and other permits,
allowances and franchises, certain intellectual property rights and other
intangibles; automobiles, other vehicles, movable equipment and aircraft;
goods, stock in trade, wares and merchandise held for sale or lease in the
ordinary course of business; materials, supplies and other personal property
consumable in the operation of the Mortgaged Property; fuel, including
nuclear fuel, whether or not consumable in the operation of the Mortgaged
Property; furniture and furnishings; computers, machinery and
telecommunication and other equipment used exclusively for corporate
administrative or clerical purposes; coal, ore, gas, oil and other minerals
and timber, and rights and interests in any such minerals or timber, whether
or not such minerals or timber have been mined or extracted or otherwise
separated from the land; electric energy, gas (natural or artificial), steam,
water and other products generated, produced, manufactured, purchased or
otherwise acquired by the Company; leasehold interests held by the Company as
lessee; and property that is located outside of the State of Colorado. (See
"Excepted Property".)
Without the consent of the Holders, the Company and the 1993 Mortgage
Trustee may enter into supplemental indentures in order to subject to the
lien of the 1993 Mortgage additional property, whether or not used or to be
used in or in connection with the Electric Utility Business (including
property which would otherwise be excepted from such lien). (See Section
1401.) Such property would thereupon constitute Property Additions (so long
as it would otherwise qualify as Property Additions as described below) and
be available as a basis for the issuance of Mortgage Securities. See
"Issuance of Additional Mortgage Securities".
The 1993 Mortgage contains provisions subjecting to the lien thereof
after-acquired property used or to be used in the Electric Utility Business,
subject to the prior lien of the 1939 Mortgage (for as long as such prior
lien is in effect). These provisions are limited in the case of
consolidation or merger (whether or not the Company is the surviving
corporation) or transfer of the Mortgaged Property as, or substantially as,
an entirety. In the event of consolidation or merger or the transfer of the
Mortgaged Property as or substantially as an entirety, the 1993 Mortgage will
not be required to be a lien upon any of the properties then owned or
thereafter acquired by the successor corporation except properties acquired
from the Company in or as a result of such transaction and improvements,
extensions and additions to such properties and renewals, replacements and
substitutions of or for any part or parts of such properties. (See Article
Thirteen and "Consolidation, Merger, etc.") In addition, after-acquired
property may be subject to liens existing or placed thereon at the time of
acquisition thereof, including, but not limited to, purchase money liens and
the lien of any Class A Mortgage.
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The 1993 Mortgage provides that the 1993 Mortgage Trustee will have a lien,
prior to the lien on behalf of the holders of Mortgage Securities, upon the
Mortgaged Property for the payment of its reasonable compensation and expenses
and for indemnity against certain liabilities. (See Section 1107.)
ISSUANCE OF ADDITIONAL MORTGAGE SECURITIES: The aggregate principal amount
of Mortgage Securities which may be authenticated and delivered under the 1993
Mortgage is unlimited. (See Section 301.) Mortgage Securities of any series
may be issued from time to time on the basis of, and in an aggregate principal
amount not exceeding:
(a) the aggregate principal amount of Class A Bonds issued and
delivered to the 1993 Mortgage Trustee;
(b) 70% of the Cost or Fair Value to the Company (whichever is less)
of Property Additions (as described below) which do not constitute Funded
Property (generally, Property Additions which have been (i) made the basis
of the authentication and delivery of Mortgage Securities, the release of
Mortgaged Property or cash withdrawals, (ii) substituted for retired
property or (iii) used as the basis of a credit against, or otherwise in
satisfaction of, any sinking, improvement, maintenance, replacement or
similar fund, provided that Mortgage Securities of the series or tranche to
which such fund relates remain Outstanding) after certain deductions and
additions, primarily including adjustments to offset property retirements;
(c) the aggregate principal amount of Retired Securities (which
consist of Mortgage Securities no longer outstanding under the 1993
Mortgage which have not been used for certain other purposes under the 1993
Mortgage and which have not been paid, redeemed or otherwise retired by the
application of Funded Cash), but if Class A Bonds had been made the basis
for the authentication and delivery of such Retired Securities, only if
such Retired Securities became Retired Securities after the discharge of
the related Class A Mortgage; and
(d) an amount of cash deposited with the 1993 Mortgage Trustee.
(See Article Four.)
In general, the issuance of Mortgage Securities is subject to the Adjusted
Net Earnings of the Company for 12 consecutive months within the preceding 18
months being at least twice the Annual Interest Requirements on all Mortgage
Securities at the time outstanding, new Mortgage Securities then applied for,
all outstanding Class A Bonds other than Class A Bonds held by the 1993 Mortgage
Trustee under the 1993 Mortgage, and all other indebtedness (with certain
exceptions) secured by a lien prior to the lien of the 1993 Mortgage, except
that no such net earnings requirement need be met if the additional Mortgage
Securities to be issued are to have no Stated Interest Rate prior to Maturity.
Adjusted Net Earnings are calculated before, among other things, provisions for
income taxes; depreciation or amortization of property; interest and
amortization of debt discount and expense; any non-recurring charge to income or
retained earnings of whatever kind or nature (including without limitation the
recognition of expense due to the non-recoverability of investment or expense),
whether or not recorded as a non-recurring item in the Company's books of
account; and any refund of revenues previously collected or accrued by the
Company subject to possible refund. The calculation of Adjusted Net Earnings
also does not, or, in the case of losses or expense, is not required to, include
profits or losses from the sale or other disposition of property, or
non-recurring items of revenue, income or expense of any kind or nature.
(See Sections 103 and 401.)
The Company is not required to satisfy the net earnings requirement prior
to issuance of Mortgage Securities (i) as provided in (a) above if the Class A
Bonds issued and delivered to the 1993 Mortgage Trustee as the basis for such
issuance have been authenticated and delivered under the related Class A
Mortgage on the basis of retired Class A Bonds or (ii) as provided in (c) above.
In general, the interest requirement with
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respect to variable interest rate indebtedness, if any, is determined with
reference to the rate or rates in effect on the date immediately preceding
such determination or the rate to be in effect upon initial authentication.
With respect to Mortgage Securities of a series subject to a Periodic
Offering (such as a medium-term note program), the 1993 Mortgage Trustee will
be entitled to receive a certificate evidencing compliance with the net
earnings requirements only once, at or prior to the time of the first
authentication and delivery of the Mortgage Securities of such series. (See
Article Four.)
Property Additions generally include any property which is owned by the
Company and is subject to the lien of the 1993 Mortgage except (with certain
exceptions) goodwill, going concern value rights or intangible property, or any
property the cost of acquisition or construction of which is properly chargeable
to an operating expense account of the Company. (See Section 104.)
Unless otherwise provided in the applicable Prospectus Supplement or a
supplement thereto, until the 1939 Mortgage has been discharged, the Company
will issue the New Bonds on the basis of Class A Bonds issued under its 1939
Mortgage.
RELEASE OF PROPERTY: Unless an Event of Default has occurred and is
continuing, the Company may obtain the release from the lien of the 1993
Mortgage of any Funded Property, except for cash held by the 1993 Mortgage
Trustee, upon delivery to the 1993 Mortgage Trustee of cash equal in amount to
the amount, if any, that the Cost of the property to be released (or, if less,
the Fair Value to the Company of such property at the time it became Funded
Property) exceeds the aggregate of:
(a) the aggregate principal amount, subject to certain limitations,
of obligations delivered to the 1993 Mortgage Trustee which are secured by
purchase money liens upon the property to be released;
(b) the Cost or Fair Value to the Company (whichever is less) of
certified Property Additions not constituting Funded Property after certain
deductions and additions, primarily including adjustments to offset
property retirements (except that such adjustments need not be made if such
Property Additions were acquired or made within the 90-day period preceding
the release);
(c) an amount equal to 10/7ths of the principal amount of Mortgage
Securities the Company would be entitled to issue on the basis of Retired
Securities (with such entitlement to issue such principal amount of
Mortgage Securities being waived by operation of such release);
(d) an amount equal to 10/7ths of the principal amount of Outstanding
Mortgage Securities delivered to the 1993 Mortgage Trustee (with such
Mortgage Securities to be cancelled by the 1993 Mortgage Trustee);
(e) an amount of cash and/or the aggregate principal amount, subject
to certain limitations, of obligations secured by purchase money liens upon
the property to be released, which in either case is evidenced to the 1993
Mortgage Trustee by a certificate of the trustee or other holder of a lien
prior to the lien of the 1993 Mortgage to have been received by such
trustee or such other holder in accordance with the provisions of such lien
in consideration for the release of such property or any part thereof from
such lien; and
(f) any taxes and expenses incidental to any sale, exchange,
dedication or other disposition of the property to be released.
Property which is not Funded Property may generally be released from
the lien of the 1993 Mortgage without depositing any cash or property with
the 1993 Mortgage Trustee as long as (a) the aggregate amount of Cost or
Fair Value to the Company (whichever is less) of all Property Additions
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which do not constitute Funded Property (excluding the property to be
released) after certain deductions and additions, primarily including
adjustments to offset property retirements, is not less than zero or (b)
the Cost or Fair Value (whichever is less) of property to be released does
not exceed the aggregate amount of the Cost or Fair Value to the Company
(whichever is less) of Property Additions acquired or made within the
90-day period preceding the release.
The 1993 Mortgage provides simplified procedures for the release of
property which has been released from the lien of a Class A Mortgage, minor
properties and property taken by eminent domain, and provides for dispositions
of certain obsolete property and grants or surrender of certain rights without
any release or consent by the 1993 Mortgage Trustee.
If any property released from the lien of the 1993 Mortgage continues to be
owned by the Company after such release, the 1993 Mortgage will not become a
lien on any improvement, extension or addition to such property or renewals,
replacements or substitutions of or for any part or parts of such property.
(See Article Eight.)
WITHDRAWAL OF CASH: Unless an Event of Default has occurred and is
continuing and subject to certain limitations, cash held by the 1993 Mortgage
Trustee may
(a) be withdrawn by the Company
(i) to the extent of the Cost or Fair Value to the Company
(whichever is less) of Property Additions not constituting Funded
Property, after certain deductions and additions, primarily including
adjustments to offset retirements (except that such adjustments need
not be made if such Property Additions were acquired or made within
the 90-day period preceding the release) or
(ii) in an amount equal to 10/7ths of the aggregate principal
amount of Mortgage Securities that the Company would be entitled to
issue on the basis of Retired Securities (with the entitlement to such
issuance being waived by operation of such withdrawal) or
(iii) in an amount equal to 10/7ths of the aggregate
principal amount of any Outstanding Mortgage Securities delivered to
the 1993 Mortgage Trustee, or
(b) upon the request of the Company, be applied to
(i) the purchase of Mortgage Securities (at prices not
exceeding 10/7ths of the principal amount thereof) or
(ii) the payment (or provision therefor for the satisfaction
and discharge of any Mortgage Securities) at Stated Maturity of any
Mortgage Securities or the redemption (or similar provision therefor)
of any Mortgage Securities which are redeemable (with any Mortgage
Securities received by the 1993 Mortgage Trustee pursuant to these
provisions being canceled by the 1993 Mortgage Trustee) (see Section
806);
provided, however, that cash deposited with the 1993 Mortgage Trustee as the
basis for the authentication and delivery of Mortgage Securities, as well as
cash representing a payment of principal of Class A Bonds, may only be withdrawn
in an amount equal to the aggregate principal amount of Mortgage Securities the
Company would be entitled to issue on any basis (with the entitlement to such
issuance being waived by operation of such withdrawal), or may, upon the request
of the Company, be applied to the purchase, redemption or payment of Mortgage
Securities at prices not exceeding, in the aggregate, the principal amount
thereof. (See Sections 405 and 702.)
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CONSOLIDATION, MERGER, ETC.: The Company may not consolidate with or merge
into any other corporation or convey, otherwise transfer or lease the Mortgaged
Property as or substantially as an entirety to any Person unless (a) such
transaction is on such terms as will fully preserve the lien and security of the
1993 Mortgage and the rights and powers of the 1993 Mortgage Trustee and the
Holders; (b) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or other transfer,
or which leases, the Mortgaged Property as, or substantially as, an entirety is
a corporation organized and existing under the laws of the United States of
America or any State or Territory thereof or the District of Columbia, and such
corporation executes and delivers to the 1993 Mortgage Trustee a supplemental
indenture which contains an assumption by such corporation of the due and
punctual payment of the principal of and premium, if any, and interest, if any,
on the Mortgage Securities and the performance of all of the covenants and
conditions of the Company under the 1993 Mortgage and which contains a grant,
conveyance, transfer and mortgage by such corporation confirming the lien of the
1993 Mortgage on the Mortgaged Property and subjecting to such lien all property
thereafter acquired by such corporation which shall constitute an improvement,
extension or addition to the Mortgaged Property or a renewal, replacement or
substitution of or for any part thereof, and, at the election of such
corporation, subjecting to the lien of the 1993 Mortgage such other property
then owned or thereafter acquired by such corporation as such corporation shall
specify; and (c) in the case of a lease, such lease is made expressly subject to
termination by the Company or by the 1993 Mortgage Trustee at any time during
the continuance of an Event of Default. (See Section 1301.)
MODIFICATION OF 1993 MORTGAGE: Without the consent of any Holders, the
Company and the 1993 Mortgage Trustee may enter into one or more supplemental
indentures for any of the following purposes:
(a) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company in the
1993 Mortgage and in the Mortgage Securities; or
(b) to add one or more covenants of the Company or other provisions
for the benefit of all Holders or for the benefit of the Holders of, or to
remain in effect only so long as there shall be outstanding, Mortgage
Securities of one or more specified series, or one or more tranches
thereof, or to surrender any right or power conferred upon the Company by
the 1993 Mortgage; or
(c) to correct or amplify the description of any property at any time
subject to the lien of the 1993 Mortgage; or to better assure, convey and
confirm to the 1993 Mortgage Trustee any property subject or required to be
subjected to the lien of the 1993 Mortgage; or to subject to the lien of
the 1993 Mortgage additional property (including property of others), to
specify any additional Permitted Liens with respect to such additional
property and to modify the provisions in the 1993 Mortgage for dispositions
of certain types of property without release in order to specify any
additional items with respect to such additional property; or
(d) to change or eliminate any provision of the 1993 Mortgage or to
add any new provision to the 1993 Mortgage, provided that if such change,
elimination or addition adversely affects the interests of the Holders of
the Mortgage Securities of any series or tranche in any material respect,
such change, elimination or addition will become effective with respect to
such series or tranche only when no Mortgage Security of such series or
tranche remains outstanding under the 1993 Mortgage; or
(e) to establish the form or terms of the Mortgage Securities of any
series or tranche as permitted by the 1993 Mortgage; or
(f) to provide for the authentication and delivery of bearer
securities and coupons appertaining thereto representing interest, if any,
thereon and for the procedures for the registration,
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exchange and replacement thereof and for the giving of notice to, and the
solicitation of the vote or consent of, the holders thereof, and for any
and all other matters incidental thereto; or
(g) to evidence and provide for the acceptance of appointment by a
successor trustee or by a co-trustee or separate trustee; or
(h) to provide for the procedures required to permit the Company to
use a non-certificated system of registration for all, or any series or
tranche of, the Mortgage Securities; or
(i) to change any place or places where (i) the principal of and
premium, if any, and interest, if any, on all or any series of Mortgage
Securities, or any tranche thereof, will be payable, (ii) all or any series
of Mortgage Securities, or any tranche thereof, may be surrendered for
registration of transfer, (iii) all or any series of Mortgage Securities,
or any tranche thereof, may be surrendered for exchange and (iv) notices
and demands to or upon the Company in respect of all or any series of
Mortgage Securities, or any tranche thereof, and the 1993 Mortgage may be
served; or
(j) to cure any ambiguity, to correct or supplement any provision
therein which may be defective or inconsistent with any other provision
therein, or to make any other changes to the provisions thereof or to add
other provisions with respect to matters and questions arising under the
1993 Mortgage, so long as such other changes or additions do not adversely
affect the interests of the Holders of Mortgage Securities of any series or
tranche in any material respect.
(See Section 1401.)
Without limiting the generality of the foregoing, if the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), is amended after the date
of the Original 1993 Mortgage in such a way as to require changes to the 1993
Mortgage or the incorporation therein of additional provisions or so as to
permit changes to, or the elimination of, provisions which, at the date of the
Original 1993 Mortgage or at any time thereafter, were required by the Trust
Indenture Act to be contained in the 1993 Mortgage, the 1993 Mortgage will be
deemed to have been amended so as to conform to such amendment or to effect such
changes or elimination, and the Company and the 1993 Mortgage Trustee may,
without the consent of any Holders, enter into one or more supplemental
indentures to evidence or effect such amendment. (See Section 1401.)
Except as provided above, the consent of the Holders of not less than a
majority in aggregate principal amount of the Mortgage Securities of all series
then Outstanding, considered as one class, is required for the purpose of adding
any provisions to, or changing in any manner, or eliminating any of the
provisions of, the 1993 Mortgage pursuant to one or more supplemental
indentures; provided, however, that if less than all of the series of Mortgage
Securities Outstanding are directly affected by a proposed supplemental
indenture, then the consent only of the Holders of a majority in aggregate
principal amount of Outstanding Mortgage Securities of all series so directly
affected, considered as one class, will be required; and provided, further, that
if the Mortgage Securities of any series have been issued in more than one
tranche and if the proposed supplemental indenture directly affects the rights
of the Holders of one or more, but less than all, of such tranches, then the
consent only of the Holders of a majority in aggregate principal amount of the
Outstanding Mortgage Securities of all tranches so directly affected, considered
as one class, will be required; and provided, further, that no such amendment or
modification may (a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Mortgage Security, or reduce the
principal amount thereof or the rate of interest thereon (or the amount of any
installment of interest thereon), or change the method of calculating such rate,
or reduce any premium payable upon the redemption thereof, or reduce the amount
of the principal of any Discount Security that would be due and payable upon a
declaration of acceleration of Maturity, or change the coin or currency (or
other property) in which any Mortgage Security or any premium or the interest
thereon is payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity of any Mortgage Security (or,
in the case of redemption, on or after the redemption date) without, in
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any such case, the consent of the Holder of such Mortgage Security; (b)
permit the creation of any lien not otherwise permitted by the 1993 Mortgage
ranking prior to the lien of the 1993 Mortgage with respect to all or
substantially all of the Mortgaged Property or terminate the lien of the 1993
Mortgage on all or substantially all of the Mortgaged Property, or deprive
the Holders of the benefit of the lien of the 1993 Mortgage, without, in any
such case, the consent of the Holders of all Mortgage Securities then
Outstanding; (c) reduce the percentage in principal amount of the Outstanding
Mortgage Securities of any series, or any tranche thereof, the consent of the
Holders of which is required for any supplemental indenture, or the consent
of the Holders of which is required for any waiver of compliance with any
provision of the 1993 Mortgage or of any default thereunder and its
consequences, or reduce the requirements for quorum or voting, without, in
any such case, the consent of the Holder of each Outstanding Mortgage
Security of such series or tranche; or (d) modify certain of the provisions
of the 1993 Mortgage relating to supplemental indentures, waivers of certain
covenants and waivers of past defaults with respect to the Mortgage
Securities of any series, or any tranche thereof, without the consent of the
Holder of each Outstanding Mortgage Security of such series or tranche. A
supplemental indenture which changes or eliminates any covenant or other
provision of the 1993 Mortgage which has expressly been included solely for
the benefit of the Holders of, or which is to remain in effect only so long
as there shall be Outstanding Mortgage Securities of one or more specified
series, or one or more tranches thereof, or modifies the rights of the
Holders of Mortgage Securities of such series or tranches with respect to
such covenant or other provision, will be deemed not to affect the rights
under the 1993 Mortgage of the Holders of the Mortgage Securities of any
other series or tranche. (See Section 1402.)
VOTING OF CLASS A BONDS: The 1993 Mortgage provides that the 1993 Mortgage
Trustee will, as holder of Class A Bonds issued under the 1939 Mortgage as the
basis for the issuance of Mortgage Securities, attend such meetings of
bondholders under the related Class A Mortgage, or deliver its proxy in
connection therewith, as relate[s] to matters with respect to which it is
entitled to vote or consent. The 1993 Mortgage provides that, so long as no
Event of Default as defined in the 1993 Mortgage has occurred and is continuing,
the 1993 Mortgage Trustee will, as holder of such Class A Bonds (a) vote in
favor of the amendments and modifications to the 1939 Mortgage described under
"DESCRIPTION OF THE 1939 MORTGAGE -- Voting of Class A Bonds Issued Under the
1939 Mortgage", and (b) with respect to any amendments or modifications to any
Class A Mortgage other than those amendments or modifications referred to in
(a), vote all Class A Bonds Outstanding under such Class A Mortgage then held by
it, or consent with respect thereto, proportionately with the vote or consent of
holders of all other Class A Bonds Outstanding under such Class A Mortgage the
holders of which are eligible to vote or consent, as evidenced by a certificate
delivered by the trustee under such Class A Mortgage; provided, however, that
the 1993 Mortgage Trustee will not vote in favor of, or consent to, any
amendment or modification of a Class A Mortgage which, if it were an amendment
or modification of the 1993 Mortgage, would require the consent of Holders of
Mortgage Securities as described under "Modification of the 1993 Mortgage",
without the prior consent of Holders of Mortgage Securities which would be
required for such an amendment or modification of the 1993 Mortgage. (See
Section 705.)
WAIVER: The Holders of at least a majority in aggregate principal amount
of all Mortgage Securities may waive the Company's obligations to comply with
certain covenants, including the covenants to maintain its corporate existence
and properties, pay taxes and discharge liens, maintain certain insurance and
make such recordings and filings as are necessary to protect the security of the
Holders and the rights of the 1993 Mortgage Trustee and the covenant described
above with respect to merger, consolidation or the transfer or lease of the
Mortgaged Property as, or substantially as, an entirety, provided that such
waiver occurs before the time such compliance is required. The Holders of at
least a majority of the aggregate principal amount of Outstanding Mortgage
Securities of all affected series or tranches, considered as one class, may
waive, before the time for such compliance, compliance with any covenant
specified with respect to Mortgage Securities of such series or tranches. (See
Section 609.)
EVENTS OF DEFAULT: Each of the following events constitutes an Event of
Default under the 1993 Mortgage:
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(a) failure to pay interest on any Mortgage Security within 60 days
after the same becomes due;
(b) failure to pay principal of or premium, if any, on any Mortgage
Security within 3 business days after the Maturity thereof;
(c) failure to perform or breach of any covenant or warranty of the
Company contained in the 1993 Mortgage (other than a covenant or warranty a
default in the performance of which or breach of which is dealt with
elsewhere under this paragraph) for a period of 90 days after there has
been given to the Company by the 1993 Mortgage Trustee, or to the Company
and the 1993 Mortgage Trustee by the Holders of at least 33% in principal
amount of Outstanding Mortgage Securities, a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default", unless the 1993 Mortgage Trustee, or the
1993 Mortgage Trustee and the Holders of a principal amount of Mortgage
Securities not less than the principal amount of Mortgage Securities the
Holders of which gave such notice, as the case may be, agree in writing to
an extension of such period prior to its expiration; provided, however,
that the 1993 Mortgage Trustee, or the 1993 Mortgage Trustee and such
Holders, as the case may be, will be deemed to have agreed to an extension
of such period if corrective action has been initiated by the Company
within such period and is being diligently pursued;
(d) certain events relating to reorganization, bankruptcy and
insolvency of the Company or appointment of a receiver or trustee for its
property; and
(e) the occurrence of a matured event of default under any Class A
Mortgage (other than any such matured event of default which is of similar
kind or character to the Event of Default described in (c) above and which
has not resulted in the acceleration of the Class A Bonds Outstanding under
such Class A Mortgage); provided that the waiver or cure of any such event
of default and the rescission and annulment of the consequences thereof
shall constitute a waiver of the corresponding Event of Default under the
1993 Mortgage and a rescission and annulment of the consequences thereof.
(See Section 1001.)
REMEDIES: If an Event of Default occurs and is continuing, then the 1993
Mortgage Trustee or the Holders of not less than 33% in principal amount of
Mortgage Securities then Outstanding may declare the principal amount (or if the
Mortgage Securities are Discount Securities, such portion of the principal
amount of such Discount Securities as may be provided for pursuant to the terms
of the 1993 Mortgage) of all of the Mortgage Securities then Outstanding,
together with premium, if any, and accrued interest, if any, thereon to be
immediately due and payable. At any time after such declaration of acceleration
of the Mortgage Securities then Outstanding, but before the sale of any of the
Mortgaged Property and before a judgment or decree for payment of money shall
have been obtained by the 1993 Mortgage Trustee as provided in the 1993
Mortgage, the Event or Events of Default giving rise to such declaration of
acceleration will, without further act, be deemed to have been waived, and such
declaration and its consequences will, without further act, be deemed to have
been rescinded and annulled, if
(a) the Company has paid or deposited with the 1993 Mortgage Trustee
a sum sufficient to pay:
(i) all overdue interest, if any, on all Mortgage Securities
then Outstanding;
(ii) the principal of and premium, if any, on any Mortgage
Securities then Outstanding which have become due otherwise than by
such declaration of acceleration and interest thereon at the rate or
rates prescribed therefor in such Mortgage Securities; and
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(iii) all amounts due to the 1993 Mortgage Trustee as
compensation and reimbursement as provided in the 1993 Mortgage; and
(b) any other Event or Events of Default, other than the non-payment
of the principal of Mortgage Securities which shall have become due solely
by such declaration of acceleration, shall have been cured or waived as
provided in the 1993 Mortgage. (See Sections 1002 and 1017.)
The 1993 Mortgage provides that, under certain circumstances and to the
extent permitted by law, if an Event of Default occurs and is continuing, the
1993 Mortgage Trustee has the power to take possession of, and to hold, operate
and manage, the Mortgaged Property or, with or without entry, sell the Mortgaged
Property. If the Mortgaged Property is sold, whether by the 1993 Mortgage
Trustee or pursuant to judicial proceedings, the principal of the Outstanding
Mortgage Securities, if not previously due, will become immediately due,
together with premium, if any, and any accrued interest. (See Sections 1003,
1004 and 1005.)
If an Event of Default occurs and is continuing, the Holders of a majority
in principal amount of the Mortgage Securities then Outstanding will have the
right to direct the time, method and place of conducting any proceedings for any
remedy available to the 1993 Mortgage Trustee or exercising any trust or power
conferred on the 1993 Mortgage Trustee, provided that (a) such direction does
not conflict with any rule of law or with the 1993 Mortgage, and could not
involve the 1993 Mortgage Trustee in personal liability in circumstances where
indemnity would not, in the 1993 Mortgage Trustee's sole discretion, be adequate
and (b) the 1993 Mortgage Trustee may take any other action deemed proper by the
1993 Mortgage Trustee which is not inconsistent with such direction. (See
Section 1016.)
The 1993 Mortgage provides that no Holder of any Mortgage Security will
have any right to institute any proceeding, judicial or otherwise, with respect
to the 1993 Mortgage or for the appointment of a receiver or for any other
remedy thereunder unless (a) such Holder has previously given to the 1993
Mortgage Trustee written notice of a continuing Event of Default; (b) the
Holders of not less than a majority in aggregate principal amount of the
Mortgage Securities then Outstanding have made written request to the 1993
Mortgage Trustee to institute proceedings in respect of such Event of Default
and have offered the 1993 Mortgage Trustee reasonable indemnity against costs
and liabilities to be incurred in complying with such request; and (c) for 60
days after receipt of such notice, the 1993 Mortgage Trustee has failed to
institute any such proceeding and no direction inconsistent with such request
has been given to the 1993 Mortgage Trustee during such 60-day period by the
Holders of a majority in aggregate principal amount of Mortgage Securities then
Outstanding. Furthermore, no Holder will be entitled to institute any such
action if and to the extent that such action would disturb or prejudice the
rights of other Holders. (See Section 1011.) Notwithstanding that the right of
a Holder to institute a proceeding with respect to the 1993 Mortgage is subject
to certain conditions precedent, each Holder of a Mortgage Security has the
right, which is absolute and unconditional, to receive payment of the principal
of and premium, if any, and interest, if any, on such Mortgage Security when due
and to institute suit for the enforcement of any such payment, and such rights
may not be impaired without the consent of such Holder. (See Section 1012.)
The 1993 Mortgage provides that the 1993 Mortgage Trustee give the Holders
notice of any default under the 1993 Mortgage to the extent required by the
Trust Indenture Act, unless such default shall have been cured or waived, except
that no such notice to Holders of a default of the character described in clause
(c) under "Events of Default" may be given until at least 75 days after the
occurrence thereof. For purposes of the preceding sentence, the term "default"
means any event which is, or after notice or lapse of time, or both, would
become, an Event of Default. (See Section 1102.) The Trust Indenture Act
currently permits the 1993 Mortgage Trustee to withhold notices of default
(except for certain payment defaults) if the 1993 Mortgage Trustee in good faith
determines the withholding of such notice to be in the interests of the Holders.
As a condition precedent to certain actions by the 1993 Mortgage Trustee in
the enforcement of the lien of the 1993 Mortgage and institution of action on
the Mortgage Securities, the 1993 Mortgage Trustee
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may require adequate indemnity against costs, expenses and liabilities to be
incurred in connection therewith. (See Sections 1011 and 1101.)
In addition to every other right and remedy provided in the 1993 Mortgage,
the 1993 Mortgage Trustee may exercise any right or remedy available to the 1993
Mortgage Trustee in its capacity as owner and holder of Class A Bonds which
arises as a result of a default or matured event of default under any Class A
Mortgage, whether or not an Event of Default under the 1993 Mortgage has
occurred and is continuing. (See Section 1020.)
DEFEASANCE: Any Mortgage Security or Securities, or any portion of the
principal amount thereof, will be deemed to have been paid for purposes of the
1993 Mortgage, and, at the Company's election, the entire indebtedness of the
Company in respect thereof will be deemed to have been satisfied and discharged,
if there has been irrevocably deposited with the 1993 Mortgage Trustee or any
Paying Agent (other than the Company), in trust: (a) money (including Funded
Cash not otherwise applied pursuant to the 1993 Mortgage) in an amount which
will be sufficient, or (b) Eligible Obligations (as described below), which do
not contain provisions permitting the redemption or other prepayment thereof at
the option of the issuer thereof, the principal of and the interest on which
when due, without any regard to reinvestment thereof, will provide moneys which,
together with the money, if any, deposited with or held by the 1993 Mortgage
Trustee or such Paying Agent, will be sufficient, or (c) a combination of (a)
and (b) which will be sufficient, to pay when due the principal of and premium,
if any, and interest, if any, due and to become due on such Mortgage Security or
Securities or portions thereof. (See Section 901.) For this purpose, Eligible
Obligations include direct obligations of, or obligations unconditionally
guaranteed by, the United States of America, entitled to the benefit of the full
faith and credit thereof, and certificates, depository receipts or other
instruments which evidence a direct ownership interest in such obligations or in
any specific interest or principal payments due in respect thereof.
It is possible that for federal income tax purposes any deposit
contemplated in the preceding paragraph could be treated as a taxable exchange
of the related Mortgage Securities for an issue of obligations of the trust or a
direct interest in the cash and securities held in the trust. In that case,
Holders of such Mortgage Securities would recognize gain or loss as if the trust
obligations or the cash or securities deposited, as the case may be, had
actually been received by them in exchange for their Mortgage Securities. Such
gain or loss, generally, would be capital in nature to Holders for whom the
Mortgage Securities are held as capital assets and any deductions for losses
would be subject to certain limitations. Such Holders thereafter would be
required to include in income a share of the income, gain or loss of the trust
or the income from the securities held in trust, as the case may be. The amount
so required to be included in income could be different from the amount that
would be includible in the absence of such deposit. Prospective investors are
urged to consult their own tax advisors as to the specific consequences to them
of such deposit.
RESIGNATION OF THE 1993 MORTGAGE TRUSTEE: The 1993 Mortgage Trustee may
resign at any time by giving written notice thereof to the Company or may be
removed at any time by Act of the Holders of a majority in principal amount of
Mortgage Securities then Outstanding delivered to the 1993 Mortgage Trustee and
the Company. No resignation or removal of the 1993 Mortgage Trustee and no
appointment of a successor 1993 Mortgage Trustee will become effective until the
acceptance of appointment by a successor 1993 Mortgage Trustee in accordance
with the requirements of the 1993 Mortgage. So long as no Event of Default or
event which, after notice or lapse of time, or both, would become an Event of
Default has occurred and is continuing, if the Company has delivered to the 1993
Mortgage Trustee a resolution of its Board of Directors appointing a successor
1993 Mortgage Trustee and such successor has accepted such appointment in
accordance with the terms of the 1993 Mortgage, the 1993 Mortgage Trustee will
be deemed to have resigned and the successor will be deemed to have been
appointed as 1993 Mortgage Trustee in accordance with the 1993 Mortgage. (See
Section 1110.)
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EVIDENCE TO BE FURNISHED TO THE 1993 MORTGAGE TRUSTEE: Compliance with
1993 Mortgage provisions is evidenced by written statements of Company officers
or persons selected or paid by the Company. In certain cases, opinions of
counsel and certification of an engineer, accountant, appraiser or other expert
(who in some cases must be independent) must be furnished. In addition, the
1993 Mortgage requires that the Company give the 1993 Mortgage Trustee, not less
often than annually, a brief statement as to the Company's compliance with the
conditions and covenants under the 1993 Mortgage.
CONCERNING THE 1993 MORTGAGE TRUSTEE: The Company conducts banking
transactions with affiliates of the 1993 Mortgage Trustee in the normal course
of the Company's business and uses the 1993 Mortgage Trustee or its affiliates
as trustee for various debt issues.
DESCRIPTION OF THE 1939 MORTGAGE
GENERAL: The summaries under this heading do not purport to be complete
and are subject to the detailed provisions of the 1939 Mortgage. Capitalized
terms used under this heading which are not otherwise defined hereunder shall
have the meanings ascribed thereto in the 1939 Mortgage. Wherever particular
provisions or terms defined therein are referred to, such provisions or
definitions are incorporated by reference as part of the statements made herein
and such statements are qualified in their entirety by such reference.
References to article and section numbers herein, unless otherwise indicated,
are references to article and section numbers of the Original 1939 Mortgage.
SECURITY: Class A Bonds issued under the 1939 Mortgage will rank PARI
PASSU, except as to any sinking fund or similar fund provided for a particular
series, with all bonds at any time outstanding under the 1939 Mortgage. In the
opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P., based on information obtained
from public records and from the Company, the 1939 Mortgage constitutes a first
mortgage lien on the property specifically or generally described therein as
subject to the lien thereof, except such property as may have been disposed of
or released from the lien thereof in accordance with the terms thereof, subject
to no liens prior to the lien of the 1939 Mortgage other than Permitted
Encumbrances, as defined therein; and the 1939 Mortgage by its terms effectively
subjects to the lien thereof all property (except property of the kinds
specifically excepted from the lien thereof) acquired by the Company after the
date of the execution and delivery thereof, subject to Permitted Encumbrances,
to any lien thereon existing, and to any liens for unpaid portions of the
purchase money placed thereon, at the time of such acquisition, and also subject
to certain limitations in the case of consolidation, merger or sale of
substantially all the mortgaged property. The principal properties subject to
the lien of the 1939 Mortgage are the electric and gas properties owned by the
Company and securities of certain subsidiaries. (See Granting and Habendum
Clauses, Sections 2 and 3 of Article I, and Section 3 of Article XI of the 1939
Mortgage.)
The 1939 Mortgage provides that the 1939 Mortgage Trustee shall have a lien
prior to the bonds on the mortgaged property for payment of its compensation,
expenses and disbursements and for indemnity against certain liabilities. (See
Section 10 of Article XII of the 1939 Mortgage.)
ISSUANCE OF ADDITIONAL BONDS UNDER THE 1939 MORTGAGE: Additional bonds may
be issued under the 1939 Mortgage in a principal amount equal to (a) 60% of net
property additions (as defined in the 1939 Mortgage) acquired or constructed
within five years of certification to the 1939 Mortgage Trustee, (b) the
principal amount of certain retired bonds or prior lien bonds or (c) deposited
cash (in certain cases 60% thereof). See "Voting of Class A Bonds Issued Under
the 1939 Mortgage".
No bonds may be issued under the 1939 Mortgage, as provided in clauses
(a) and (c) above, unless the net earnings of the Company (as defined in
Section 5 of Article I of the 1939 Mortgage and as discussed below) are at
least 2 1/2 times the annual interest on all bonds issued and outstanding
under the 1939 Mortgage, including the bonds applied for (but excluding any
bonds to be paid, retired or redeemed with the proceeds of the bonds applied
for), and indebtedness secured by prior liens. Such net earnings test
generally need not be
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satisfied prior to the issuance of bonds as provided in clause (b) above
unless (x) the new bonds are issued more than two years prior to the stated
maturity of the retired bonds and the new bonds bear a greater rate of
interest than the retired bonds or (y) the new bonds are issued in respect of
retired bonds, the interest charges on which have been excluded from any net
earnings certificate filed with the 1939 Mortgage Trustee since the
retirement of such bonds. (See Article III of the 1939 Mortgage.) See
"Voting of Class A Bonds Issued Under the 1939 Mortgage".
Cash deposited under clause (c) above may be withdrawn by the Company in an
amount equal to the principal amounts of bonds issuable pursuant to clauses (a)
and (b) above (in certain cases 166-2/3% thereof) without regard to earnings or
may be applied to the purchase or redemption of bonds of one or more series
selected by the Company. (See Sections 8, 9 and 10 of Article III of the 1939
Mortgage.) See "Voting of Class A Bonds Issued Under the 1939 Mortgage".
Net earnings are computed before provision for depreciation and
amortization of property, income and profits taxes (as defined in the 1939
Mortgage), interest on any indebtedness and amortization of debt discount and
expense and do not take into account any profits or losses from the sale or
disposal of capital assets or securities. (See Section 5 of Article I of the
1939 Mortgage.)
Property additions under the 1939 Mortgage consist of property used or
useful in the electric, gas or steam business (with certain exceptions) acquired
or constructed by the Company within five years next preceding the certification
thereof to the 1939 Mortgage Trustee. (See Section 4 of Article I of the 1939
Mortgage.) See "Voting of Class A Bonds Issued Under the 1939 Mortgage".
The approximate amount of net property additions as of December 31, 1997,
and the amount of retired bonds as of December 31, 1997, available for use as
the basis for the issuance of Class A Bonds under the 1939 Mortgage, subject to
the net earnings restrictions discussed above, were $758,333,879 and
$669,480,000, respectively. The Company will determine, at the time of each
issuance of Class A Bonds under the 1939 Mortgage which are to be the basis for
the issuance of New Bonds, whether such Class A Bonds will be issued upon the
basis of property additions or retired bonds. As of December 31, 1997,
$1,424,417,000 in aggregate principal amount of bonds were outstanding under the
1939 Mortgage, $822,167,000 aggregate principal amount of which was held by the
1993 Mortgage Trustee as security for outstanding Mortgage Securities under the
1993 Mortgage.
The 1939 Mortgage contains restrictions on (a) the acquisition of property
securing prior lien indebtedness in excess of 60% of the fair value of the
property and (b) the issuance of bonds, withdrawal of cash or release of
property on the basis of property subject to a prior lien. Prior lien
indebtedness secured by property theretofore acquired may not be increased
unless the evidence thereof is pledged with the 1939 Mortgage Trustee. (See
Section 4 of Article I and Sections 15, 17 and 19 of Article IV of the 1939
Mortgage.) See "Voting of Class A Bonds Issued Under the 1939 Mortgage".
MAINTENANCE AND REPLACEMENT FUND FOR BONDS OUTSTANDING UNDER THE 1939
MORTGAGE: Although there will be no provision for a maintenance and replacement
fund with respect to Class A Bonds issued under the 1939 Mortgage as the basis
for the issuance of New Bonds, the Company has covenanted, with respect to
various series of outstanding bonds issued under the 1939 Mortgage maturing
through July 1, 1998, that, so long as any bond of such series remains
outstanding, the Company will, for each calendar year (herein called the
"accounting period"), pay to the 1939 Mortgage Trustee, as a Maintenance and
Replacement fund, an amount in cash not less than the sum of 15% of the gross
electric operating revenues and 10% of the gross gas and steam operating
revenues (as defined in the 1939 Mortgage, which, among other things, provides
for the deduction therefrom the cost of purchased electric current, gas and
steam) derived from the mortgaged property during the accounting period, LESS,
HOWEVER, the following optional credits: (a) expenditures during the accounting
period for repairs and maintenance of the mortgaged property; (b) the cost of
property additions during the accounting period deemed to renew or replace
retired or abandoned property, subject to adjustment
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for any outstanding prior lien bonds secured by such property additions; (c)
the principal amount of all bonds and/or 166-2/3% of the principal amount of
all prior lien bonds, retired or redeemed and for which no bonds have been
issued, credit taken or cash withdrawn under the 1939 Mortgage; and (d) net
property additions to the extent of 100% thereof. Cash so deposited may be
applied to the purchase or redemption of such bonds as the Company may
designate, which by their terms are redeemable prior to maturity (including
any of the Class A Bonds issued under the 1939 Mortgage that are so
redeemable and that were issued as the basis for the issuance of Bonds) at a
price not exceeding the then current redemption price as set forth in the
relevant supplemental indenture and the accrued interest on such bonds, or
may be withdrawn upon the basis of certain property additions or certain
retired bonds or prior lien bonds. (See Section 8 of Article IV of the 1939
Mortgage and Article Two of certain supplemental indentures.) See "Voting of
Class A Bonds Issued Under the 1939 Mortgage".
The series of outstanding bonds which contain maintenance and replacement
fund covenants mature through July 1, 1998, but may be redeemed prior to their
stated maturity. The Company does not anticipate issuing any additional series
of bonds under the 1939 Mortgage which will contain such covenants. The Company
will no longer be bound by such covenants after all the bonds of such series
have been retired.
MODIFICATION OF THE 1939 MORTGAGE: The 1939 Mortgage and the rights of
bondholders thereunder may be modified with the consent of the Company, and of
the 1939 Mortgage Trustee if deemed affected, and the consent of the holders of
not less than 75% in principal amount of the bonds then outstanding, or of not
less than 75% in principal amount of the outstanding bonds of any one or more
series which may be affected by any such modification; except that the
bondholders, without the consent of the holder of each bond affected, have no
power to (a) extend the time of payment of the principal of or interest on any
bonds; (b) reduce the principal amount thereof or the rate of interest thereon,
or otherwise modify the terms of payment of principal or interest; (c) permit
the creation of any lien ranking prior to or on a parity with the lien of the
1939 Mortgage with respect to any of the mortgaged property; (d) deprive any
nonassenting bondholder of a lien upon the mortgaged property for the security
of his/her bonds; or (e) reduce the percentage of bondholders authorized to take
such action. (See Article XIV of the 1939 Mortgage.) The Company has reserved
the right to amend the 1939 Mortgage without any consent or other action by
holders of any series of bonds created after October 31, 1975 (including Class A
Bonds issued under the 1939 Mortgage as the basis for the issuance of New Bonds)
to reduce the required consent of bondholders described above from 75% to 60%.
(See Article Five of the Supplemental Indenture dated as of November 1, 1977.)
VOTING OF CLASS A BONDS ISSUED UNDER THE 1939 MORTGAGE: The 1993 Mortgage
provides that, so long as no Event of Default as defined in the 1993 Mortgage
has occurred and is continuing thereunder, the 1993 Mortgage Trustee will, as
holder of Class A Bonds issued under the 1939 Mortgage and delivered as the
basis for the issuance of Bonds,
(a) vote or consent in favor of amendments or modifications to the
1939 Mortgage of substantially the same tenor and effect as follows:
(i) to expand the definition of property additions to
eliminate geographical restrictions to certain states and allow the
inclusion of properties located anywhere in the United States, Canada
and Mexico, or their coastal waters; to include space satellites and
stations, solar power satellites and other analogous facilities; to
include nuclear fuel and other analogous devices or substances and to
establish other provisions as to such fuel; to include properties
located on leased real property, subject to certain limitations; to
include goodwill when acquired with a public utility system, subject
to certain limitations; and to delete the requirement that property
additions must have been acquired or constructed within five years;
(ii) to remove the requirement that certificates delivered to
the 1939 Mortgage Trustee be verified;
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(iii) to liberalize the requirements for publication of notices
of redemption and other notices;
(iv) to eliminate the maintenance and replacement fund or, in
the alternative,
(A) to change the amount of cash deliverable to the 1939
Mortgage Trustee to the lower of (x) 10% of the combined
electric, gas and steam gross operating revenues of the
Company or (y) 2% of the cost of the depreciable property
of the Company, less the accumulated provision for
depreciation; and
(B) to change the definition of gross operating revenues
to deduct the cost of fuel used to provide electric, gas
and steam services;
(v) to change the opinion of counsel required to be delivered
upon the certification of property additions to delete the requirement
that the Company have all necessary permission from governmental
authorities to use and operate such property additions;
(vi) to specifically allow the inclusion of earnings collected
subject to refund in net earnings for purposes of the interest
coverage requirement for the issuance of bonds;
(vii) to specifically permit the debt component, in addition to
the equity component, of the allowance for funds used during
construction to be included in net earnings for purposes of the
interest coverage requirement for the issuance of bonds;
(viii) (A) to reduce the interest coverage requirement for the
issuance of bonds to 2 times from 2 1/2 times annual
interest charges on outstanding bonds, including bonds
applied for, and prior lien indebtedness; or, in the
alternative,
(B) to change such coverage requirement to a requirement
that net earnings be at least equal to either (x) 2 (or
any higher amount) times annual interest charges on, or
(y) 15% (or any higher percentage) of the aggregate
principal amount of, outstanding bonds, including the
bonds applied for, and prior lien indebtedness;
(ix) to remove the restrictions on acquiring property subject
to a prior lien (retaining, however, the restrictions on certifying
such property as property additions);
(x) to raise the minimum dollar amount of fire and other
losses that must be payable to the 1939 Mortgage Trustee from $50,000
to 3% (or any higher percentage) of the principal amount of
outstanding bonds; and to specifically permit the Company to carry
insurance policies with deductible provisions equal to 3% (or any
higher percentage) of the principal amount of outstanding bonds or any
higher deductible amount usually contained in the policies of other
companies owning and operating similar properties;
(xi) to delete the covenant of the Company to "observe and
conform to all valid requirements of any governmental authority
relative to any of the mortgaged property";
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(xii) to delete the requirement that the 1939 Mortgage Trustee
be located in New York, New York and that the Company maintain an
office in New York, New York, to make payments on bonds and register
transfers thereof;
(xiii) to modify the special release provision of the 1939
Mortgage to increase the amount of the aggregate value of property
which may be released from the lien of the 1939 Mortgage within any
period of 12 consecutive calendar months without compliance with all
the conditions of the general release provision from $25,000 to (A)
the greater of $25,000 or 1% of the aggregate principal amount of
outstanding bonds or (B) the greater of $10,000,000 or 3% of the
aggregate principal amount of outstanding bonds (or any lower amount
or percentage);
(xiv) to permit bonds to be issued under the 1939 Mortgage in a
principal amount equal to 70% of net property additions instead of 60%
and to make correlative changes in provisions relating to, among other
things, the release of property from the lien of the 1939 Mortgage,
the withdrawal of cash held by the 1939 Mortgage Trustee, the
acquisition and use under the 1939 Mortgage of property securing prior
lien indebtedness, and the use of retired prior lien bonds; and
(xv) to modify the definition of all defaults under the 1939
Mortgage to be substantially identical to the Events of Default under
the 1993 Mortgage; and
(b) with respect to any amendments or modifications to the 1939
Mortgage other than those referred to in (a) above, vote all Class A Bonds
Outstanding under the 1939 Mortgage then held by it, or consent with
respect thereto, in the manner as described under "DESCRIPTION OF THE BONDS
-- Voting of Class A Bonds". (See Section 705 of the 1993 Mortgage.)
The Company has reserved the right to make any or all of the modifications
to the 1939 Mortgage described in (a)(i) through (a)(xiii)(A) above without
consent or other action of the holders of certain outstanding series of bonds
previously issued under the 1939 Mortgage. (See Article Three of the
Supplemental Indenture dated as of March 1, 1980 and Article Four of the
Supplemental Indentures dated as of July 1, 1990, December 1, 1990, and March 1,
1992, respectively). In addition, the indentures under which certain pollution
control revenue bonds of Morgan County, Colorado and Adams County, Colorado
were issued provide that the trustees thereunder, as holders of bonds issued
under the 1939 Mortgage, shall vote in favor of, or consent with respect to,
any or all of the possible modifications described in (a)(i) through
(a)(xiii)(A) above. The aggregate principal amount of bonds with respect to
which such right has been reserved or with respect to which such agreements
to consent have been obtained, together with the bonds held by the 1993
Mortgage Trustee, exceeds the 75% in aggregate principal amount of
outstanding bonds required to approve such modifications, and therefore the
Company may effect such modifications at its discretion upon the taking of
appropriate corporate action as required by the 1939 Indenture.
DEFAULT UNDER THE 1939 MORTGAGE: An event of default under the 1939
Mortgage includes a failure to pay interest on any bond, or to pay a sinking
fund installment, for 60 days after such payment becomes due, a failure to pay
the principal of or premium, if any, on any bond when the same becomes due, a
default with respect to the payment of principal of or interest on any prior
lien bonds, a failure to perform any other covenant in the 1939 Mortgage for 90
days after notice given to the Company by the 1939 Mortgage Trustee or by the
holders of 10% in principal amount of outstanding bonds, certain events in
bankruptcy, and an Event of Default under the 1993 Mortgage and/or certain
matured events of default under any other Class A Mortgage. (See Section 1 of
Article VIII of the 1939 Mortgage and Article Five of the Supplemental Indenture
dated as of November 1, 1993 creating the First Mortgage Bonds, Collateral
Series A.) The 1939 Mortgage Trustee may withhold notice of default (except
default in the payment of principal of or premium, if any, or interest on the
bonds or in the payment of a sinking fund installment) if it determines such
withholding to be in the interests of the bondholders. (See Section 2 of
Article VIII of the 1939 Mortgage.) The Company is required to report
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annually to the 1939 Mortgage Trustee as to compliance with the covenants
contained in the 1939 Mortgage. (See Section 24 of Article IV of the 1939
Mortgage.)
Upon the occurrence of a default under the 1939 Mortgage, the 1939 Mortgage
Trustee or the holders of 25% in principal amount of outstanding bonds may
declare the principal of and interest accrued on all outstanding bonds due and
payable immediately; PROVIDED, HOWEVER, that if such default has been cured, (a)
the holders of a majority in principal amount of outstanding bonds may annul
such declaration or (b) if, in making such declaration, the 1939 Mortgage
Trustee shall have acted without a direction from the holders of a majority in
principal amount of outstanding bonds, or if such declaration was made by the
holders of 25% in principal amount of outstanding bonds and the holders of a
majority in principal amount of outstanding bonds shall not have theretofore
delivered a written notice to the contrary, then such declaration shall IPSO
FACTO be deemed to be annulled. (See Section 1 of Article VIII of the 1939
Mortgage.)
ACTION BY 1939 MORTGAGE TRUSTEE: Except as otherwise provided in the 1939
Mortgage, the holders of a majority in principal amount of bonds outstanding
under the 1939 Mortgage have the right to require the 1939 Mortgage Trustee to
enforce the lien of the 1939 Mortgage and direct the time, method and place of
conducting any proceedings for any remedy available to the 1939 Mortgage Trustee
under the 1939 Mortgage. (See Section 15 of Article VIII of the 1939 Mortgage.)
No holder of bonds outstanding under the 1939 Mortgage has the right to enforce
the lien of the 1939 Mortgage without giving to the 1939 Mortgage Trustee
written notice of default and unless the holders of a majority in principal
amount of outstanding bonds shall have requested the 1939 Mortgage Trustee to
act and have offered the 1939 Mortgage Trustee security and indemnity
satisfactory to it against the costs, expenses and liabilities to be incurred
thereby and the 1939 Mortgage Trustee shall have failed to take action within 60
days. (See Section 16 of Article VIII of the 1939 Mortgage.)
CONCERNING THE 1939 MORTGAGE TRUSTEE: The Company conducts banking
transactions with affiliates of the 1939 Mortgage Trustee in the normal course
of the Company's business and uses the 1939 Mortgage Trustee or its affiliates
as trustee for various debt issues.
DESCRIPTION OF THE DEBT SECURITIES
The following description sets forth certain general terms and provisions
of the Debt Securities to which any Prospectus Supplement may relate. The
particular terms of the Debt Securities offered by any Prospectus Supplement and
the extent, if any, to which such general provisions may apply to the Debt
Securities so offered will be described in the Prospectus Supplement relating to
such Debt Securities.
The Debt Securities may be issued, from time to time, in one or more series
and will constitute either Senior Debt Securities or Subordinated Debt
Securities. The Debt Securities will be unsecured obligations of the Company.
The Senior Debt Securities and the Subordinated Debt Securities will be issued
under separate indentures although the description of the Indentures herein
applies to both Indentures unless specifically stated otherwise. The Senior
Debt Securities will be issued under an Indenture (the "Senior Debt Securities
Indenture"), between the Company and The Bank of New York, as trustee (the
"Senior Debt Securities Trustee"). The Subordinated Debt Securities will be
issued under an Indenture (the "Subordinated Debt Securities Indenture"),
between the Company and The Bank of New York, as trustee (the "Subordinated Debt
Securities Trustee"). The Indentures are subject to being qualified under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"). A form of
each of the Indentures is filed as an exhibit to the Registration Statement of
which this Prospectus is a part.
The Senior Debt Securities Indenture and the Subordinated Debt Securities
Indenture are referred to herein individually as an "Indenture" and,
collectively, as the "Indentures", and the Senior Debt Securities Trustee and
the Subordinated Debt Securities Trustee are referred to herein as the
"Indenture Trustee".
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The following summaries of certain provisions of the Debt Securities and
the Indentures do not purport to be complete and are subject to, and are
qualified in their entirety by the detailed provisions of the Indentures,
including the definitions therein of certain terms. Certain capitalized terms
used under this heading which are not otherwise defined hereunder shall have the
meanings ascribed thereto in the Indentures. Whenever particular provisions of
the Indentures or terms defined therein are referred to, such provisions or
definitions are incorporated by reference as part of the statements made herein
and such statements are qualified in their entirety by such reference.
References to article and section numbers herein, unless otherwise indicated,
are references to article and section numbers of the Indentures.
GENERAL: The Debt Securities will be unsecured obligations of the Company.
The Indentures do not limit the aggregate principal amount of Debt Securities
which may be issued thereunder, nor do they limit the incurrence or issuance of
other secured or unsecured debt of the Company. Debt Securities may be issued
under the Indentures, from time to time, in one or more series. (See Section
301.)
The Debt Securities will rank PARI PASSU in right of payment with all
other unsecured indebtedness of the Company, except that the Senior Debt
Securities will be senior in right of payment to any subordinated
indebtedness which, by its terms, is subordinate to the Senior Debt
Securities, including the Subordinated Debt Securities.
Reference is made to the Prospectus Supplement relating to the Debt
Securities being offered (the "Offered Debt Securities") for, among other
things, the following terms thereof: (i) the title of the Offered Debt
Securities; (ii) any limit on the aggregate principal amount of the Offered
Debt Securities; (iii) whether or not the Debt Securities will be issued in
global form and the terms thereof and the depository therefor; (iv) the date
or dates on which the Offered Debt Securities will mature; (v) the rate or
rates (which may be fixed or variable) per annum at which the Offered Debt
Securities will bear interest or the method by which such rate or rates shall
be determined and the date or dates from which such interest will accrue, the
date or dates on which such interest will be payable and the Regular Record
Dates for such Interest Payment Dates or the method by which such date or
dates shall be determined; (vi) the place or places where the principal of
(and premium, if any) on the Offered Debt Securities shall be payable; (vii)
the right of the Company, if any, to defer payment of interest on the
Subordinated Debt Securities and the maximum length of any such deferral
period; (viii) the date, if any, after which, and the price or prices at
which, the Offered Debt Securities may, pursuant to any optional redemption
provisions, be redeemed at the option of the Company or of the Holder thereof
and other detailed terms and provisions of any such optional redemption; (ix)
the date or dates, if any, on which, and the price or prices at which the
Company is obligated, pursuant to any mandatory sinking fund provisions or
otherwise, to redeem the Offered Debt Securities and other detailed terms and
provisions of such mandatory redemption; (x) the denominations in which the
Offered Debt Securities will be issued, if other than denominations of $1,000
and any integral multiple thereof; (xi) the portion of the principal amount
of the Offered Debt Securities, if other than the principal amount thereof,
which will be payable upon declaration of acceleration of the maturity
thereof; (xii) additional Events of Default with respect to the Offered Debt
Securities, if any, other than those set forth in the appropriate Indenture;
(xiii) whether the provisions of the appropriate Indenture relating to
Defeasance and Covenant Defeasance shall be applicable to the Offered Debt
Securities; (xiv) the currency or currencies or units based on or related to
currencies in which the Offered Debt Securities shall be denominated, and in
which payments or principal of, and any premium and interest on such Offered
Debt Securities will be payable, if other than U.S. dollars; (xv) additional
covenants, if any, with respect to the Offered Debt Securities other than
those set forth in the appropriate Indenture; (xvi) the identity of the
Registrar or any Paying Agent, if other than the Trustee; (xvii) any
exceptions to provisions in the appropriate Indenture relating to legal
holidays or the definition of "Business Day" with respect to the Offered Debt
Securities; and (xviii) any other terms of the Offered Debt Securities (which
terms shall not be inconsistent with the appropriate Indenture). For a
description of the terms of the Offered Debt Securities, reference must be
made to both the Prospectus Supplement relating thereto and to the
description of Debt Securities set forth herein. (See Section 301.)
The Debt Securities may be issued under the Indentures as Original Issue
Discount Securities to be offered and sold at a substantial discount below their
principal amount. Special federal income tax, accounting
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and other considerations applicable to any such Original Issue Discount
Securities will be described in any Prospectus Supplement relating thereto.
"Original Issue Discount Security" means any security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof as a result of the
occurrence of an Event of Default and the continuation thereof. (See
Section 101.)
Debt Securities of any series may be offered in a Periodic Offering, in
which any or all of the specific terms of each Security of such series may vary
from other Securities of such series, including with respect to rate or rates of
interest, if any, thereon, the Stated Maturity or Maturities thereof, the
redemption provisions, if any, and such other terms as may be permitted by the
Indenture and determined by the Company from time to time as provided in the
Indentures.
CONSOLIDATION, MERGER OR SALE BY THE COMPANY: Each Indenture provides that
the Company shall not consolidate with, merge with or into any other corporation
(whether or not the Company shall be the surviving corporation), or sell,
assign, transfer or lease all or substantially all of its properties and assets
as an entirety or substantially as an entirety to any Person or group of
affiliated Persons, in one transaction or a series of related transactions,
unless: (i) either the Company shall be the continuing Person or the Person (if
other than the Company) formed by such consolidation or with which or into which
the Company is merged or the Person (or group of affiliated Persons) to which
all or substantially all the properties and assets of the Company are sold,
assigned, transferred or leased is a corporation (or constitute corporations)
organized under the laws of the United States or any State thereof or the
District of Columbia and expressly assumes, by an indenture supplemental to the
Indenture, all the obligations of the Company under the Debt Securities issued
thereunder and the Indenture, executed and delivered to the Indenture Trustee in
form satisfactory to the Indenture Trustee; (ii) immediately before and after
giving effect to such transaction or series of transactions, no Event of
Default, and no Default, shall have occurred and be continuing; and (iii) the
Company shall have delivered to the Indenture Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that such consolidation, merger or
transfer and such supplemental indentures comply with the Indenture; and (iv)
such other conditions as may be established in connection with the issuance of
the applicable Debt Securities. (See Article Eight.)
EVENTS OF DEFAULT AND NOTICE THEREOF: The following are Events of
Default under the Indentures with respect to Debt Securities of any series
issued thereunder: (i) failure by the Company to pay interest on any Debt
Security of that series when due and such failure continues for 30 days and
the time for payment has not been extended or deferred; (ii) failure by the
Company to pay the principal of (or premium, if any, on) any Debt Security of
that series when due and payable at Maturity, including upon redemption but
excluding any failure by the Company to deposit money in connection with any
redemption at the option of the Company, and the time for payment has not
been extended or deferred; (iii) failure by the Company to observe or perform
any other covenant, warranty or agreement contained in the Debt Securities of
that series or in the Indenture (other than a covenant, agreement or warranty
included in the Indenture solely for the benefit of Debt Securities other
than that series), and such failure continues for a period of 60 days after
notice has been received by the Company from the Indenture Trustee or Holders
of at least 25% in aggregate principal amount of the Outstanding Debt
Securities of that series; (iv) certain events of bankruptcy, insolvency or
reorganization relating to the Company; (v) failure by the Company to pay
interest on any series of Debt Security issued under the Indenture and such
failure continues for 30 days, or failure to pay the principal of or premium,
if any, on any series of Debt Security issued under the Indenture when the
same shall become due and payable at Maturity (including upon redemption but
excluding any failure by the Company to deposit money in connection with any
redemption at the option of the Company) and the time for payment of such
interest or principal shall not have been extended or deferred; and (vi) any
other Event of Default with respect to Debt Securities of that series
specified in the Prospectus Supplement relating thereto or Supplemental
Indenture under which such series of Debt Securities is issued. (See Section
501.)
The Indentures provide that the Trustee thereunder shall, within 30 days
after the occurrence of any Default or Event of Default with respect to Debt
Securities of any series issued thereunder, give the Holders of
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Debt Securities of that series notice of all uncured Defaults or Events of
Default known to it (the term "Default" includes any event which after notice
or passage of time or both would be an Event of Default); provided, however,
that, except in the case of an Event of Default or a Default in payment on
any Debt Securities of any series, the Indenture Trustee shall be protected
in withholding such notice if and so long as the board of directors, the
executive committee or directors or Responsible Officers of the Indenture
Trustee in good faith determine that the withholding of such notice is in the
interest of the Holders of Debt Securities of the affected series. (See
Section 602.)
If an Event of Default with respect to Debt Securities of any series (other
than due to events of bankruptcy, insolvency or reorganization) occurs and is
continuing, the Indenture Trustee or the Holders of at least 25% in aggregate
principal amount of the Outstanding Debt Securities of that series, by notice in
writing to the Company (and to the Indenture Trustee if given by the Holders of
at least 25% in aggregate principal amount of the Debt Securities of that
series), may declare the unpaid principal of and accrued interest, if any, to
the date of acceleration (or, if the Debt Securities are Original Issue Discount
Securities, such portion of that principal as may be specified in the terms
thereof) on all the Outstanding Debt Securities of that series to be due and
payable immediately and, upon any such declaration, the Debt Securities of that
series shall become immediately due and payable. (See Section 502.)
If an Event of Default occurs due to bankruptcy, insolvency or
reorganization, all unpaid principal of and accrued interest on the Outstanding
Debt Securities of all series will become immediately due and payable without
any declaration or other act on the part of the Indenture Trustee or any Holder
of any Debt Security. (See Section 502.)
Any such declaration with respect to Debt Securities of any series may be
annulled and past Events of Default and Defaults (except, unless theretofore
cured, an Event of Default or a Default in payment of principal of or interest
on the Debt Securities of that series) may be waived by the Holders of a
majority of the principal amount of the Outstanding Debt Securities of that
series, upon the conditions provided in the Indenture. (See Section 513.)
If the Subordinated Debt Securities of any series are then held by a
statutory trust created by the Company for the purpose of issuing preferred
securities and common securities and purchasing a series of Subordinated Debt
Securities with the proceeds thereof, each holder of the preferred securities of
the trust may bring suit directly against the Company for the enforcement of
payment to such holder in respect of the Subordinated Debt Securities of such
series held by the trust in a principal amount equal to the aggregate
liquidation amount of the preferred securities held by such holder. The
holders of at least a majority in liquidation amount of preferred securities
of the trust must consent to any waiver of an Event of Default with respect to
the series of Subordinated Debt Securities held by the trust and each such
holder must consent to any supplemental indenture that would adversely affect
the interests of such holders. (See Sections 502, 508, 513 and 902.)
Subject to the provisions of the Indenture relating to the duties of the
Trustee in the event an Event of Default shall occur and be continuing, the
Trustee will be under no obligation to exercise any of its rights or powers
under the Indenture at the request or direction of any of the Holders, unless
such Holders have offered to the Trustee reasonable indemnity. (See Section
603.) The Holders of a majority in principal amount of the Outstanding Debt
Securities of any series will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the Debt
Securities of that series; provided that (i) such direction is not in conflict
with any law or the Indenture; (ii) the Indenture Trustee may take any other
action deemed proper by the Indenture Trustee which is not inconsistent with
such direction; and (iii) subject to its duties under the Trust Indenture Act,
the Indenture Trustee need not take any action that might involve the Indenture
Trustee in personal liability or might be unduly prejudicial to the Holders not
joining therein. (See Section 512.)
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No Holder of the Debt Securities of any series will have any right to
institute any proceeding with respect to the Indenture, or for the appointment
of a receiver or a trustee, or for any other remedy thereunder, unless (i) such
Holder has previously given to the Trustee written notice of a continuing Event
of Default with respect to the Debt Securities of that series, (ii) the Holders
of at least 25% in aggregate principal amount of the Outstanding Debt Securities
of that series have made written request, and such Holder or Holders have
offered reasonable indemnity, to the Trustee to institute such proceeding as
trustee and (iii) the Trustee has failed to institute such proceeding, and has
not received from the Holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of that series a direction inconsistent with such
request, within 60 days after such notice, request and offer. However, such
limitations do not apply to a suit instituted by a Holder of a Debt Security for
the enforcement of payment of the principal of or any premium or interest on
such Debt Security on or after the applicable due date specified in such Debt
Security. (See Sections 507 and 508.)
The Indentures provide that the Company shall periodically file statements
with the Indenture Trustee regarding compliance by the Company with certain of
the covenants therein and shall specify any Event of Default or Defaults with
respect to Debt Securities of any series outstanding thereunder, in performing
such covenants, of which the signers may have knowledge. (See Section 704.)
MODIFICATION OF INDENTURES; WAIVER: The Indentures may be modified by the
Company and the applicable Indenture Trustee without the consent of any Holders
with respect to certain matters, including (i) to cure any ambiguity, defect or
inconsistency or to correct or supplement any provision which may be
inconsistent with any other provision of the Indenture and (ii) to make any
change that does not materially adversely affect the interests of any Holder of
Debt Securities of any series. In addition, under the Indentures, certain
rights and obligations of the Company and the rights of Holders of the Debt
Securities may be modified by the Company and the Indenture Trustee with the
written consent of the Holders of at least a majority in aggregate principal
amount of the Outstanding Debt Securities of each series affected thereby;
PROVIDED that no such modification or amendment may, without the consent of each
Holder of any Outstanding Debt Security affected thereby, (i) change the Stated
Maturity of the principal of, or any installment of principal of or interest on,
any such Debt Security; (ii) reduce the principal amount of, or the rate of
interest on, or any premium payable upon the redemption of, any such Debt
Security, or reduce the amount of principal of an Original Issue Discount
Security that would be due and payable upon declaration of acceleration of the
Maturity thereof; (iii) change the place of payment, or the coin or currency,
for payment of principal of (or premium, if any) or interest on any Debt
Security; (iv) impair the right to institute suit for the enforcement of any
payment on or with respect to any such Debt Security; (v) modify any of the
foregoing provisions or any of the provisions relating to the waiver of
certain past defaults or certain covenants; (vi) modify the provisions of the
Indenture with respect to the subordination of the Debt Securities in a
manner adverse to the holders; (vii) reduce the above-stated percentage of
outstanding Debt Securities of any series necessary to modify or amend the
Indentures, or to waive compliance with certain provisions thereof or
Defaults or Events of Default thereunder and the consequences thereof; or
(viii) change the redemption provisions of any Debt Security in a manner
adverse to such holder. (See Article Nine.)
The Subordinated Debt Securities Indenture will provide that if the
Subordinated Debt Securities of any series are then held by a statutory trust
created by the Company for the purpose of issuing preferred securities and
common securities and purchasing a series of Subordinated Debt Securities
with the proceeds thereof, the Company and the Subordinated Debt Securities
Indenture Trustee shall not enter into any supplemental indenture, for the
purposes of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, the Subordinated Debt Securities
Indenture, that adversely affects the holders of such preferred securities of
the trust without the prior consent of the holders of each such preferred
security. (See Section 902.)
DEFEASANCE: The Company may terminate its substantive obligations in
respect of Debt Securities of any series (except for its obligations to pay the
principal of (and premium, if any, on) and the interest on the Debt Securities
of that series) by (i) depositing with the applicable Indenture Trustee, under
the terms of an irrevocable trust agreement, money or U.S. Government
Obligations or a combination thereof sufficient to pay all remaining
indebtedness on the Debt Securities of that series, (ii) delivering to such
Indenture Trustee either an Opinion of Counsel or a ruling directed to the
Indenture Trustee from the Internal Revenue Service to the effect that the
Holders of the Debt Securities of that series will not recognize income, gain or
loss for federal income tax purposes as a result of such deposit and termination
of obligations, and (iii) complying with certain other requirements set forth in
the Indenture. (See Section 1304.)
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SUBORDINATION: For purposes of the description of the Subordinated Debt
Securities, the term "Senior Indebtedness" shall mean the principal of and
premium, if any, and interest, if any, on the following, whether outstanding on
the date of execution of the Indenture or thereafter incurred or created:
(i) all obligations of the Company for money borrowed by the Company (including
Capital Lease Obligations and purchase money obligations with an original
maturity in excess of one year) or evidenced by debentures (other than Debt
Securities issued under the Subordinated Debt Securities Indenture), bonds,
notes, bankers' acceptances or other corporate debt securities or similar
instruments issued by the Company, (ii) all obligations of the Company with
respect to letters of credit; (iii) all obligations of the Company constituting
a guarantee or assumption of indebtedness of others of the type referred to in
the preceding clauses (i) and (ii), including through an agreement to purchase,
contingent or otherwise; (iv) all dividends of others for the payment of which
the Company is responsible or liable as obligor, guarantor or otherwise; (vi)
all obligations of the type referred to in clauses (i) through (iv) of others
secured by any property or asset of the Company (whether or not such obligation
is assumed by the Company), the amount of such obligation being deemed to be the
lesser of the value of such property or assets or the amount of the obligation
so secured; or (vi) renewals, extensions or refundings of any of the
obligations referred to in the preceding clauses (i) through (v); unless, in the
case of any particular obligation or renewal, extension or refunding thereof,
under the express provisions of the instrument creating or evidencing the same,
or pursuant to which the same is outstanding, such obligation or such renewal,
extension or refunding thereof is not superior in right of payment to or is PARI
PASSU with the Subordinated Debt Securities. The term "Capital Lease
Obligations" shall mean any obligation of a Person that is required to be
classified and accounted for as a capital lease on the face of a balance sheet
of such Person prepared in accordance with GAAP.
The payment of the principal of and premium, if any, and any interest on
the Subordinated Debt Securities (including making any deposit pursuant to the
provisions described under "Defeasance" or repurchasing, redeeming or otherwise
retiring any Subordinated Debt Securities) will, to the extent set forth in the
Subordinated Debt Securities Indenture, be subordinated in right of payment to
the prior payment in full of all Senior Indebtedness of the Company. Upon any
payment or distribution of assets or securities to creditors upon any
dissolution, winding up, or total or partial liquidation or reorganization of
the Company whether voluntary or involuntary or in bankruptcy, insolvency,
receivorship or similar proceedings of the Company, the holders of all Senior
Indebtedness of the Company will first be entitled to receive payment in full in
cash or cash equivalents of the principal of, premium, if any, or any interest
due thereon before the Holders of the Subordinated Debt Securities will be
entitled to receive any payment or distribution in respect of the principal of,
premium, if any, or any interest on the Subordinated Debt Securities, and in the
event that, notwithstanding the foregoing, the Trustee under the Subordinated
Indenture or the Company of any Subordinated Debt Security receives any payment
or distribution of assets of any kind or character before all Senior
Indebtedness of the Company is paid in full, or effective provision is made for
its payments, then such payment or distribution will be required to be paid over
or delivered forthwith to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other person making payment or
distribution of assets of the Company for application to the payment of all
Senior Indebtedness of the Company remaining unpaid, to the extent necessary to
pay all Senior Indebtedness of the Company then due in full.
No direct or indirect payment by or on behalf of the Company of principal
of, premium, if any, or interest on, the Subordinated Debt Securities, whether
pursuant to the terms of the Subordinated Debt Securities or upon acceleration
or otherwise, shall be made if, at the time of such payment, there exists (i) a
default in the payment of all or any portion of any Senior Indebtedness or (ii)
any other default pursuant to which the maturity of any Senior Indebtedness has
been accelerated and, in either case, requisite notice has been given to the
Subordinated Debt Securities Trustee and such default shall not have been cured
or waived by or on behalf of the holders of such Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness of the Company,
the Holders of the Subordinated Debt Securities shall be subrogated to the
rights of holders of Senior Indebtedness of the Company to receive payments or
distributions or assets of the Company applicable to Senior Indebtedness of
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the Company until the Subordinated Debt Securities are paid in full. As a
result of these subordination provisions, in the event of the Company's
insolvency, holders of the Subordinated Debt Securities may recover ratably
less than holders of Senior Indebtedness of the Company. (See Article
Fourteen of the Subordinated Debt Securities Indenture.) The Subordinated
Debt Securities Indenture provisions described in this paragraph, however, do
not prevent the Company from making a sinking fund payment with Subordinated
Debt Securities acquired prior to the maturity of Senior Indebtedness or, in
the case of default, prior to such default and notice thereof.
FORM, EXCHANGE, AND TRANSFER: The Debt Securities of each series will be
issuable only in fully registered form without coupons and, unless otherwise
specified in the applicable Prospectus Supplement, in denominations of $1,000
and any integral multiple thereof. (See Section 302.)
At the option of the Holder, subject to the terms of the Indenture and the
limitations applicable to global securities described in the applicable
Prospectus Supplement, Debt Securities of any series will be exchangeable for
other Debt Securities of the same series, of any authorized denomination and of
like tenor and aggregate principal amount. (See Section 305.)
Subject to the terms of the Indenture and the limitations applicable to
global securities set forth in the applicable Prospectus Supplement, Debt
Securities may be presented for exchange or for registration of transfer (duly
endorsed or with the form of transfer endorsed thereon duly executed if so
required by the Company or the Indenture Trustee) at the office of the Security
Registrar or at the office of any transfer agent designated by the Company for
such purpose. Unless otherwise provided in the Securities to be transferred or
exchanged, no service charge will be made for any registration of transfer or
exchange of Debt Securities, but the Company may require payment of a sum
therewith. The Company has appointed the Trustee as Security Registrar. Any
transfer agent (in addition to the Security Registrar) initially designated by
the Company for any Debt Securities will be named in the applicable Prospectus
Supplement. The Company may at any time designate additional transfer agents or
rescind the designation of any transfer agent or approve a change in the office
through which any transfer agent acts, except that the Company will be required
to maintain a transfer agent in each Place of Payment for the Debt Securities of
each series. (See Sections 305 and 1002.)
If the Debt Securities of any series are to be redeemed, the Company will
not be required to (i) issue, register the transfer of, or exchange any Debt
Security of that series during a period beginning at the opening of business 15
days before the day of mailing of a notice of redemption of any such Debt
Security that may be selected for redemption and ending at the close of business
on the day of such mailing or (ii) register the transfer of or exchange any Debt
Security so selected for redemption, in whole or in part, except the unredeemed
portion of any such Debt Security being redeemed in part. (See Section 305.)
PAYMENT AND PAYING AGENTS: Unless otherwise indicated in the applicable
Prospectus Supplement, payment of the interest on a Debt Security on any
Interest Payment Date will be made to the Person in whose name such Debt
Security (or one or more Predecessor Debt Securities) is registered at the close
of business on the Regular Record Date for such interest. (See Section 307.)
Principal of and any premium and interest on the Debt Securities of a
particular series will be payable at the office of such Paying Agent or Paying
Agents as the Company may designate with respect to the Debt Securities of such
series for such purpose from time to time, except that unless otherwise
indicated in the applicable Prospectus Supplement, payment of any interest may
be made by check mailed to the address of the Person entitled thereto as such
address appears in the Security Register. Unless otherwise indicated in the
applicable Prospectus Supplement, the corporate trust office of the Trustee in
The City of New York will be designated as the Company's sole Paying Agent for
payments with respect to Debt Securities of each series. Any other Paying
Agents initially designated by the Company for the Debt Securities of a
particular series will be named in the applicable Prospectus Supplement. The
Company will be required to maintain a Paying Agent in each Place of Payment for
the Debt Securities of a particular series. (See Sections 307 and 1002.)
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All moneys paid by the Company to a Paying Agent for the payment of their
principal of or any premium or interest on any Debt Security which remains
unclaimed at the end of two years after such principal, premium or interest has
become due and payable will be repaid to the Company, and the Holder of such
Debt Security thereafter may look only to the Company for payment thereof. (See
Section 1008.)
CONCERNING THE INDENTURE TRUSTEE: The Company and its affiliates
conduct banking transactions with the Indenture Trustee in the normal course
of business.
GOVERNING LAW: The Indentures will be governed by and construed in
accordance with the laws of the State of New York except to the extent that
the Trust Indenture Act shall be applicable.
DESCRIPTION OF THE PREFERRED SECURITIES OF THE TRUST
GENERAL: The Trust may issue only one series of Preferred Securities which
shall have the terms described in the Prospectus Supplement relating thereto.
The Declaration authorizes the Administrative Trustee to issue on behalf of the
Trust one series of Preferred Securities. The Declaration will be qualified as
an indenture under the Trust Indenture Act. The Property Trustee, The Bank of
New York, an independent trustee, will act as indenture trustee for the
Preferred Securities to be issued by the Trust, for the purpose of compliance
with the provisions of the Trust Indenture Act. The proceeds from the sale of
the Preferred Securities and the Common Securities will be used by the Trust to
purchase a corresponding series of Subordinated Debt Securities from the
Company. The Subordinated Debt Securities of that series will be held in trust
by the Property Trustee for the benefit of the holders of the Trust Securities.
Pursuant to the Preferred Securities Guarantee, the Company will agree to make
payments of Distributions and payments on redemption or liquidation with respect
to such Preferred Securities, but only to the extent the Trust holds funds
available therefor and has not made such payments. See "DESCRIPTION OF THE
PREFERRED SECURITIES GUARANTEE". The following summary of the Trust, the
Declaration and the Preferred Securities of the Trust does not purport to be
complete and is subject to, and qualified in its entirety by the detailed
provisions of the Amended and Restated Declaration of Trust and Form of
Certificate of Preferred Securities, forms of which are filed as exhibits to the
Registration Statement of which this Prospectus is a part. Capitalized terms
used under this heading and not otherwise defined hereunder shall have the
meanings ascribed thereto in the Amended and Restated Declaration of Trust.
Wherever particular provisions or terms defined therein are referred to herein,
such provisions or definitions are incorporated by reference as part of the
statements made herein and such statements are qualified in their entirety by
such reference.
It is anticipated that the assets of the Trust available for distribution
to the holders of its Preferred Securities will be limited to payments from the
Company under the Subordinated Debt Securities in which the Trust will invest
the proceeds from the issuance and sale of its Trust Securities. If the Company
fails to make a payment on such Subordinated Debt Securities, the Trust will not
have sufficient funds to make related payments, including Distributions, on the
Preferred Securities. The Preferred Securities will have such terms, including
distributions, redemption, voting, liquidation rights and such other preferred,
deferred or other special rights or such restrictions as shall be set forth in
the Declaration or made part of the Declaration by the Trust Indenture Act, and
which will mirror the terms of the Subordinated Debt Securities held by the
Trust and as described in the Prospectus Supplement related thereto.
Reference is made to the Prospectus Supplement relating to the Preferred
Securities of the Trust for specific terms, including (i) the distinctive
designation of such Preferred Securities; (ii) the number of Preferred
Securities issued; (iii) the annual distribution rate or rates (or method of
determining such rate or rates) for Preferred Securities and the date or dates
upon which such distributions shall be payable; provided, however, that
distributions on such Preferred Securities shall be payable on a periodic basis
to holders of such Preferred Securities as of a record date in each period
during which such Preferred Securities are outstanding; (iv) whether
distributions on Preferred Securities shall be cumulative, and, in the case of
Preferred Securities having such cumulative distribution rights, the date or
dates or method of determining the date or dates from which distributions on
Preferred Securities shall be cumulative; (v) the obligation or option, if any,
of the Trust to purchase or redeem Preferred Securities and the price or prices
at which, the period or periods within which, and the terms and conditions upon
which, Preferred Securities shall be purchased or redeemed, in
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whole or in part, pursuant to such obligation or option (with such redemption
price to be determined through negotiations among the Company and the
underwriters based on, among other factors, redemption prices of securities
similar to the Preferred Securities and market conditions generally); (vi)
the terms and conditions, if any, upon which the Subordinated Debt Securities
may be distributed to holders of Preferred Securities; (vii) if applicable,
any securities exchange upon which the Preferred Securities shall be listed;
(viii) whether the Preferred Securities are to be issued in whole or in part
in book-entry form and represented by one or more global certificates, and if
so, the identity of the depository for such global certificates and the
specific terms of the depository arrangements therefor; and (ix) any other
relevant rights, preferences, privileges, limitations or restrictions of
Preferred Securities not inconsistent with the Declaration or with applicable
law. The Preferred Securities will be guaranteed by the Company to the
extent set forth below under "DESCRIPTION OF THE PREFERRED SECURITIES
GUARANTEE". The Preferred Securities Guarantee of the Company, when taken
together with the Company's obligations under the Subordinated Debt
Securities and the relevant Supplemental Indenture, and its obligations under
the Declaration, including obligations to pay costs, expenses, debts and
liabilities of the Trust (other than with respect to the Trust Securities),
would provide a full and unconditional guarantee of amounts due on Preferred
Securities issued by the Trust. Certain United States federal income tax
considerations applicable to any offering of Preferred Securities will be
described in the Prospectus Supplement relating thereto.
In connection with the issuance of Preferred Securities, the Trust will
issue one series of Common Securities. The Declaration authorizes the
Administrative Trustee to issue on behalf of the Trust one series of Common
Securities having such terms including distributions, redemption, voting,
liquidation rights or such restrictions as shall be set forth therein. The
terms of the Common Securities will be substantially identical to the terms of
the Preferred Securities issued by the Trust and the Common Securities will rank
PARI PASSU, and payments will be made thereon pro rata with the Preferred
Securities except that, upon the occurrence and during the continuance of an
event of default under the Declaration, the rights of the holders of the Common
Securities to payment in respect of distributions and payments upon liquidation,
redemption and otherwise will be subordinated to the rights of the holders of
the Preferred Securities. Except in certain limited circumstances, the Common
Securities will also carry the right to vote to appoint, remove or replace any
of the PSCO Trustees. All of the Common Securities of the Trust will be
directly or indirectly owned by the Company.
LIQUIDATION DISTRIBUTION UPON DISSOLUTION: Pursuant to the Declaration,
the Trust shall be dissolved on the earliest to occur of: (i) the expiration of
the term of the Trust; (ii) the bankruptcy, dissolution or liquidation of the
Company or an acceleration of the maturity of the corresponding series of
Subordinated Debt Securities held by the Trust; (iii) if provided for in the
accompanying Prospectus Supplement, upon the election of the Company to dissolve
the Trust and, after satisfaction of liabilities to creditors of the Trust,
cause the distribution of the corresponding series of Subordinated Debt
Securities to the holders of the Trust Securities; (iv) the redemption of all of
the Trust Securities; and (v) an order for the dissolution of the Trust shall
have been entered by a court of competent jurisdiction. The election of the
Company pursuant to clause (iii) above shall be made by the Company giving
written notice to the PSCO Trustees not less than 30 days prior to the date of
distribution of the corresponding series of Subordinated Debt Securities and
shall be accompanied by an opinion of counsel that such event will not be a
taxable event to the holders of the Trust Securities for federal income tax
purposes.
If a dissolution event occurs as described in clause (ii), (iii), (iv) or
(v) above with respect to the Trust, the Trust shall be liquidated by the PSCO
Trustees as expeditiously as the PSCO Trustees determine to be possible by
distributing, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, to the holders of its Trust Securities a like amount
of the Subordinated Debt Securities held by the Trust, unless such distribution
is determined by the Property Trustee not to be practical, in which event such
holders will be entitled to receive out of the assets of the Trust available for
distribution to holders, after satisfaction of liabilities to creditors of the
Trust as provided by applicable law, an amount equal to, in the case of holders
of Trust Securities, the aggregate liquidation amount per Trust Security
specified in the accompanying Prospectus
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Supplement plus accumulated and unpaid distributions thereon to the date of
payment (such amount, the "Liquidation Distribution"). If the Liquidation
Distribution with respect to the Preferred Securities can be paid only in
part because the Trust has insufficient assets available to pay in full the
aggregate Liquidation Distribution, then the amounts payable by the Trust on
such Preferred Securities shall be paid on a pro rata basis. The holders of
the Trust's Common Securities will be entitled to receive the Liquidation
Distribution upon any such liquidation pro rata with the holders of its
Preferred Securities, except that if a Declaration Event of Default (defined
below) has occurred and is continuing the Preferred Securities shall have a
priority over the Common Securities with respect to payment of such
Liquidation Distribution.
DECLARATION EVENT OF DEFAULT; NOTICE: An Event of Default under the
Subordinated Debt Securities Indenture relating to the Subordinated Debt
Securities held by the Trust shall constitute a Declaration Event of Default
with respect to the Preferred Securities issued by the Trust under the
Declaration.
Within 90 days after the occurrence of any Declaration Event of Default
actually known to the Property Trustee, the Property Trustee shall transmit
notice of such Declaration Event of Default to the holders of the Trust
Securities, the Administrative Trustee and the Company, unless such Declaration
Event of Default shall have been cured or waived. The Company and the
Administrative Trustee are required to file annually with the Property Trustee a
certificate as to whether or not they are in compliance with all the conditions
and covenants applicable to them under the Declaration.
Under the Declaration, if the Property Trustee has failed to enforce its
rights under the Declaration or the Subordinated Debt Securities Indenture, to
the fullest extent permitted by law and subject to the terms of the Declaration
and the Subordinated Debt Securities Indenture, any holder of the corresponding
Preferred Securities may institute a legal proceeding directly to enforce the
Property Trustee's rights under the Declaration or the Subordinated Debt
Securities Indenture with respect to Subordinated Debt Securities having a
principal amount equal to the aggregate liquidation amount of the Preferred
Securities of such holder without first instituting a legal proceeding against
the Property Trustee or any other person. To the extent that any action under
the Subordinated Debt Securities Indenture is entitled to be taken by the
holders of at least a specified percentage of the principal amount of a series
of Subordinated Debt Securities, holders of the corresponding Preferred
Securities may take such action if such action is not taken by the Property
Trustee. Notwithstanding the foregoing, if a Declaration Event of Default
attributable to the Company's failure to pay principal of or premium, if any, or
interest on the Subordinated Debt Securities held by the Trust has occurred and
is continuing, then each holder of Preferred Securities may institute a legal
proceeding directly against the Company for enforcement of any such payment to
such holder, all as provided in the Subordinated Debt Securities Indenture and
the Supplemental Indenture thereunder relating to the Subordinated Debt
Securities purchased by the Trust.
REMOVAL OF PSCO TRUSTEES: Unless a Declaration Event of Default has
occurred and is continuing, any PSCO Trustee may be removed and replaced at any
time by the holder of the Common Securities. If a Declaration Event of Default
has occurred and is continuing, the Property Trustee and the Delaware Trustee
may be removed and replaced at such time only by the holders of at least a
majority in aggregate liquidation amount of the outstanding Preferred
Securities. In no event will the holders of the Preferred Securities have the
right to vote to appoint, remove or replace the Administrative Trustee, which
voting rights are vested exclusively in the holder of the Common Securities. No
resignation or removal of PSCO Trustee and no appointment of a successor trustee
shall be effective until the acceptance of appointment by the successor trustee
in accordance with the provisions of the Declaration.
CO-TRUSTEES AND SEPARATE PROPERTY TRUSTEE: Unless a Declaration Event of
Default has occurred and is continuing, at any time and from time to time, for
the purpose of meeting the legal requirements of the Trust Indenture Act or of
any jurisdiction in which any part of the Trust Property (as defined in the
Declaration) may at such time be located, the holder of the Common Securities
and the Administrative Trustee
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shall have the power (i) to appoint one or more persons approved by the
Property Trustee either to act as co-trustee, jointly with the Property
Trustee, of all or any part of such Trust Property, or to act as separate
trustee of any such Trust Property, in either case with such powers as may be
provided in the instrument of appointment, and (ii) to vest in such person or
persons in such capacity any property, title, right or power deemed necessary
or desirable, subject to the provisions of the Declaration. If a Declaration
Event of Default has occurred and is continuing, only the Property Trustee
shall have power to make such appointment.
MERGER OR CONSOLIDATION OF ISSUER TRUSTEES: Any corporation or other
entity into which any PSCO Trustee may be merged or converted or with which it
may be consolidated, or any corporation or other entity resulting from any
merger, conversion or consolidation to which any PSCO Trustee shall be a party,
or any corporation or other entity succeeding to all or substantially all the
corporate trust business of any PSCO Trustee, shall be the successor of such
PSCO Trustee under the applicable Declaration, provided such corporation or
other entity shall be otherwise qualified and eligible.
MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE TRUST: The
Trust may not merge with or into, consolidate, amalgamate, or be replaced by, or
convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety to any corporation or other entity, except as
described below or in "Liquidation Distribution Upon Dissolution". The Trust
may, at the request of the Company, with the consent of the Administrative
Trustee and without the consent of the holders of its Preferred Securities,
merge with or into, consolidate, amalgamate, or be replaced by a trust organized
as such under the laws of any State, provided that (i) such successor entity
either (a) expressly assumes all of the obligations of the Trust with respect to
such Preferred Securities or (b) substitutes for such Preferred Securities other
securities substantially similar to such Preferred Securities (the "Successor
Securities") so long as the Successor Securities rank the same as such Preferred
Securities rank with respect to the payment of Distributions and payments upon
redemption and liquidation, (ii) the Company expressly appoints a trustee of
such successor entity possessing the same powers and duties as the Property
Trustee with respect to the corresponding series of Subordinated Debt
Securities, (iii) the Successor Securities are listed, or any Successor
Securities will be listed upon notification of issuance, on any national
securities exchange or other organization on which such Preferred Securities are
then listed, (iv) such merger, consolidation, amalgamation or replacement does
not cause such Preferred Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization, (v)
such merger, consolidation, amalgamation or replacement does not adversely
affect the rights, preferences and privileges of the holders of such Preferred
Securities (including any Successor Securities) in any material respect, (vi)
such successor entity has a purpose substantially similar to that of the Trust,
(vii) prior to such merger, consolidation, amalgamation or replacement, the
Company has received an opinion of counsel to the Trust to the effect that (a)
such merger, consolidation, amalgamation or replacement does not adversely
affect the rights, preferences and privileges of the holders of such Preferred
Securities (including any Successor Securities) in any material respect, and (b)
following such merger, consolidation, amalgamation or replacement, neither the
Trust nor such successor entity will be required to register as an investment
company under the Investment Company Act of 1940, as amended (the "Investment
Company Act"), and (viii) the Company or any permitted successor assignee owns
all of the common securities of such successor entity and guarantees the
obligations of such successor entity under the Successor Securities at least to
the extent provided by the Preferred Securities Guarantee and Declaration.
Notwithstanding the foregoing, the Trust shall not, except with the consent of
all holders of its Preferred Securities, consolidate, amalgamate, merge with or
into, or be replaced by, any other entity, or permit any other entity to
consolidate, amalgamate, merge with or into, or replace it if such
consolidation, amalgamation, merger or replacement would cause the Trust or the
successor entity not to be classified as a grantor trust for federal income tax
purposes.
VOTING RIGHTS; AMENDMENT OF TRUST AGREEMENT: Except as provided below and
under "Mergers, Consolidations, Amalgamations or Replacements of the Trust" and
"DESCRIPTION OF THE GUARANTEE--Amendments and Assignment" and as otherwise
required by law and the Declaration, the holders of the Preferred Securities
will have no voting rights.
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The Declaration may be amended from time to time by the Company and the
PSCO Trustees, without the consent of the holders of the corresponding Preferred
Securities, (i) to cure any ambiguity, defect or inconsistency or (ii) to make
any other change that does not adversely affect in any material respect the
interests of any holder of such Preferred Securities. The Declaration may be
amended by the Company and the PSCO Trustees in any other respect, with the
consent of the holders of at least a majority in aggregate liquidation amount of
such Preferred Securities, except to (i) change the amount, timing or currency
or otherwise adversely affect the method of payment of any distribution or
Liquidation Distribution on the Trust Securities, (ii) restrict the right of a
holder of any such Preferred Security to institute suit for enforcement of any
distribution, Redemption Price or Liquidation Distribution on the Trust
Securities, (iii) change the purpose of the Trust, (iv) authorize the issuance
of any additional beneficial interests in the Trust, (v) change the redemption
provisions of the Trust Securities, (vi) change the conditions precedent for the
Company to elect to dissolve the Trust and distribute the Subordinated Debt
Securities to the holders of such Trust Securities or (vii) affect the limited
liability of any holder of such Preferred Securities, which amendment requires
the consent of each holder of the related Preferred Securities affected thereby.
Notwithstanding the foregoing, no amendment may be made without receipt by the
Trust of an opinion of counsel to the effect that such amendment will not affect
the Trust's status as a grantor trust for federal income tax purposes or its
exemption from regulation as an investment company under the Investment Company
Act.
The PSCO Trustees shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Subordinated Debt
Securities Indenture Trustee or executing any trust or power conferred on the
Subordinated Debt Securities Indenture Trustee with respect to the Subordinated
Debt Securities held by the Trust, (ii) waive any past default pursuant to
Section 513 of the Subordinated Debt Securities Indenture, (iii) exercise any
right to rescind or annul an acceleration of the principal of such Subordinated
Debt Securities, or (iv) consent to any amendment or modification of the
Subordinated Debt Securities Indenture, where such consent shall be required,
without, in each case, obtaining the prior consent of the holders of at least a
majority in aggregate liquidation amount of all outstanding Preferred
Securities; provided, however, that where a consent under the Subordinated Debt
Securities Indenture would require the consent of each holder of Subordinated
Debt Securities affected thereby, no such consent shall be given by the Property
Trustee without the prior consent of each holder of the Preferred Securities.
The PSCO Trustees shall not revoke any action previously authorized or approved
by a vote of the holders of such Preferred Securities except by subsequent vote
of the holders thereof. The Property Trustee shall notify all holders of
Preferred Securities of any notice received from the Subordinated Debt
Securities Indenture Trustee as a result of the Trust being the holder of the
Subordinated Debt Securities. In addition to obtaining the consent of the
holders of the Preferred Securities, prior to taking any of the foregoing
actions, the PSCO Trustees shall obtain an opinion of counsel to the effect that
the Trust will not be classified as an association taxable as a corporation or a
partnership for federal income tax purposes on account of such action and will
continue to be classified as a grantor trust for federal income tax purposes.
Any required consent of holders of Preferred Securities may be given at a
meeting of holders of such Preferred Securities convened for such purpose or
pursuant to written consent. The Property Trustee will cause a notice of any
meeting at which holders of Preferred Securities are entitled to vote, or of any
matter upon which action by written consent of such holders is to be taken, to
be given to each holder of record of such Preferred Securities in the manner set
forth in the Declaration.
Notwithstanding that holders of Preferred Securities are entitled to vote
or consent under certain circumstances, any Preferred Securities that are owned
by the Company, the PSCO Trustees or any affiliate of the Company or any PSCO
Trustee shall, for purposes of such vote or consent, be treated as if they were
not outstanding.
INFORMATION CONCERNING THE PROPERTY TRUSTEE: The Property Trustee is the
sole trustee under the Declaration for purposes of the Trust Indenture Act and
shall have and be subject to all of the duties and responsibilities specified
with respect to an indenture trustee under the Trust Indenture Act. The
Property
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Trustee, other than during the occurrence and continuance of a Declaration
Event of Default, undertakes to perform only such duties as are specifically
set forth in the Declaration and, upon a Declaration Event of Default, must
use the same degree of care and skill in the exercise thereof as a prudent
person would exercise or use in the conduct of his or her own affairs.
Subject to this provision, the Property Trustee is under no obligation to
exercise any of the powers vested in it by the Declaration at the request of
any holder of Preferred Securities unless it is offered reasonable security
or indemnity against the costs, expenses and liabilities that might be
incurred thereby. If no Declaration Event of Default has occurred and is
continuing, and the Property Trustee is required to decide between
alternative courses of action, construe ambiguous provisions in the
Declaration or is unsure of the application of any provision of the
Declaration, and the matter is not one on which holders of Preferred
Securities are entitled under the Declaration to vote, then the Property
Trustee shall take such action as is directed by the Company and, if not so
directed, may take such action as it deems advisable and in the best
interests of the holders of the Trust Securities and will have no liability
except for its own negligent action, negligent failure to act or willful
misconduct.
MISCELLANEOUS: The Administrative Trustee is authorized and directed to
conduct the affairs of and to operate the Trust in such a way that (i) it will
not be deemed to be an "investment company" required to be registered under the
Investment Company Act or to be taxed as a corporation or partnership for
federal income tax purposes, (ii) it will be classified as a grantor trust for
federal income tax purposes and (iii) the Subordinated Debt Securities held by
it will be treated as indebtedness of the Company for federal income tax
purposes. In this connection, the Company and the Administrative Trustee are
authorized to take any action, not inconsistent with applicable law, the
certificate of trust of the Trust or the Declaration, that the Company and the
Administrative Trustee determine in their discretion to be necessary or
desirable for such purposes, even if such action adversely affects the interests
of the holders of the Preferred Securities.
Holders of the Preferred Securities have no preemptive or similar rights.
The Trust may not borrow money, issue debt, execute mortgages or pledge any of
its assets.
Except as otherwise provided in the Declaration, any action requiring the
consent or vote of the PSCO Trustees shall be approved by the Administrative
Trustee.
GOVERNING LAW: The Declaration will be governed by and construed in
accordance with the laws of the State of Delaware.
DESCRIPTION OF THE PREFERRED SECURITIES GUARANTEE
The Preferred Securities Guarantee will be executed and delivered by the
Company concurrently with the issuance by the Trust of its Preferred Securities
for the benefit of the holders from time to time of such Preferred Securities.
The Preferred Securities Guarantee will be qualified as an indenture under the
Trust Indenture Act and The Bank of New York will act as indenture trustee (the
"Preferred Securities Guarantee Trustee") under the Preferred Securities
Guarantee for the purposes of compliance with the Trust Indenture Act. The
Preferred Securities Guarantee Trustee will hold the Preferred Securities
Guarantee for the benefit of the holders of the Preferred Securities issued by
the Trust. The following summary of the Preferred Securities Guarantee does not
purport to be complete and is qualified in its entirety by the detailed
provisions of the Preferred Securities Guarantee, a form of which is filed as an
exhibit to the Registration Statement of which this Prospectus is a part.
Capitalized terms used under this heading and not otherwise defined hereunder
shall have the meanings ascribed thereto in the Preferred Securities Guarantee.
Whenever particular provisions or terms defined therein are referred to herein,
such provisions or definitions are incorporated by reference as part of the
statements made herein and such statements are qualified in their entirety by
such reference.
GENERAL: The Company will irrevocably agree, to the extent set forth in
the Preferred Securities Guarantee, to pay in full, to the holders of the
Preferred Securities issued by the Trust, the Preferred
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Securities Guarantee Payments (as defined below) (except to the extent
previously paid), as and when due, regardless of any defense, right of
set-off or counterclaim which the Trust may have or assert. The following
payments, to the extent not paid by the Trust (the "Preferred Securities
Guarantee Payments"), will be subject to the Preferred Securities Guarantee
(without duplication), (i) any accumulated and unpaid Distributions required
to be paid on such Preferred Securities, to the extent that the Trust has
funds available therefor, (ii) the redemption price (the "Redemption Price")
and all accrued and unpaid Distributions to the date of redemption to the
extent that the Trust has funds available therefor, and (iii) upon a
voluntary or involuntary dissolution and liquidation of the Trust (other than
in connection with a distribution of Subordinated Debt Securities to holders
of such Preferred Securities or the redemption of all such Preferred
Securities), the lesser of (a) the aggregate of the liquidation amount
specified in the Prospectus Supplement per Preferred Security plus all
accrued and unpaid Distributions on the Preferred Securities to the date of
payment, to the extent the Trust has funds available therefor and (b) the
amount of assets of the Trust remaining available for distribution to
holders of Preferred Securities upon a dissolution and liquidation of the
Trust (the "Liquidation Payment"). The Company's obligation to make a
Preferred Securities Guarantee Payment may be satisfied by direct payment of
the required amounts by the Company to the holders of the Preferred
Securities or by causing the Trust to pay such amounts to such holders.
While the assets of the Company will not be available pursuant to the
Preferred Securities Guarantee for the payment of any distribution,
Liquidation Payment or Redemption Price on any Preferred Securities if the
Trust does not have funds available therefor as described above, the Company
has agreed under the Declaration to pay all expenses of the Trust except the
Trust's obligations under its Preferred Securities. Accordingly, the
Preferred Securities Guarantee, together with the backup undertakings
consisting of the Company's obligations under the Declaration, the
corresponding series of Subordinated Debt Securities and the relevant
Supplemental Indenture provide for the Company's full and unconditional
guarantee of the Preferred Securities.
No single document executed by the Company in connection with the
issuance of the Preferred Securities will provide for the Company's full and
unconditional Preferred Securities Guarantee of the Preferred Securities.
It is only the combined operation of the Company's obligations under the
Preferred Securities Guarantee, the Declaration, the corresponding series of
Subordinated Debt Securities and the relevant Supplemental Indenture that has
the effect of providing a full and unconditional guarantee of the Trust's
obligations under its Preferred Securities.
STATUS OF THE PREFERRED SECURITIES GUARANTEE: The Preferred Securities
Guarantee will constitute an unsecured obligation of the Company and will rank
(a) subordinate and junior in right of payment to all general liabilities of the
Company, (b) PARI PASSU with the senior most preferred stock now or hereafter
issued by the Company and with any guarantee now or hereafter issued by the
Company in respect of preferred stock of any affiliate of the Company and (c)
senior to the Company's common stock. The Declaration provides that each holder
of Preferred Securities by acceptance thereof agrees to the subordination
provisions and other terms of the Preferred Securities Guarantee. The Preferred
Securities Guarantee will constitute a guarantee of payment and not of
collection (i.e., the guaranteed party may institute a legal proceeding directly
against the Company to enforce its rights under the Preferred Securities
Guarantee without first instituting a legal proceeding against any other person
or entity). The Preferred Securities Guarantee will not be discharged except by
payment of the Preferred Securities Guarantee Payments in full to the extent not
previously paid or upon distribution to the holders of the Preferred Securities
of the corresponding series of Subordinated Debt Securities pursuant to the
Declaration.
AMENDMENTS AND ASSIGNMENT: Except with respect to any changes which do not
adversely affect the rights of holders of the Preferred Securities in any
material respect (in which case no consent of the holders will be required), the
Preferred Securities Guarantee may not be amended without the prior approval of
the holders of at least a majority in aggregate liquidation amount of the
Preferred Securities (excluding any Preferred Securities held by the Company or
an affiliate thereof). The manner of obtaining any such approval will be as set
forth under "DESCRIPTION OF THE PREFERRED SECURITIES OF THE TRUST -- Voting
Rights; Amendment of Trust Agreement". All guarantees and agreements contained
in the Preferred Securities
-39-
<PAGE>
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Company and shall inure to the benefit of the holders
of the Preferred Securities.
PREFERRED SECURITIES GUARANTEE EVENTS OF DEFAULT: An event of default
under the Preferred Securities Guarantee (a "Preferred Securities Guarantee
Event of Default") will occur upon the failure of the Company to perform any of
its payment or other obligations thereunder, provided that except with respect
to the Preferred Securities Guarantee Event of Default resulting from a failure
to make any of the Preferred Securities Guarantee Payments, the Company shall
have received notice of such Preferred Securities Guarantee Event of Default
from the Preferred Securities Guarantee Trustee and shall not have cured such
Preferred Securities Guarantee Event of Default within 60 days after receipt of
such notice. The holders of at least a majority in aggregate liquidation amount
of the Preferred Securities (excluding any Preferred Securities held by the
Company or an affiliate thereof) will have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Preferred
Securities Guarantee Trustee in respect of such Preferred Securities Guarantee
or to direct the exercise of any trust or power conferred upon the Preferred
Securities Guarantee Trustee under the Preferred Securities Guarantee.
Any holder of the Preferred Securities may institute a legal proceeding
directly against the Company to enforce such holder's rights under the Preferred
Securities Guarantee without first instituting a legal proceeding against the
Trust, the Preferred Securities Guarantee Trustee or any other person or entity.
INFORMATION CONCERNING THE PREFERRED SECURITIES GUARANTEE TRUSTEE: The
Preferred Securities Guarantee Trustee, other than during the occurrence and
continuance of a Preferred Securities Guarantee Event of Default, undertakes to
perform only such duties as are specifically set forth in the Preferred
Securities Guarantee and, after a Preferred Securities Guarantee Event of
Default, to exercise the same degree of care and skill in the exercise thereof
as a prudent person would exercise or use in the conduct of his or her own
affairs. Subject to this provision, the Preferred Securities Guarantee Trustee
is under no obligation to exercise any of the powers vested in it by the
Preferred Securities Guarantee at the request of any holder of Preferred
Securities unless it is offered reasonable indemnity against the costs, expenses
and liabilities that might be incurred thereby.
TERMINATION OF THE PREFERRED SECURITIES GUARANTEE: The Preferred
Securities Guarantee will terminate and be of no further force and effect upon
full payment of the Redemption Price or Liquidation Payment for the Preferred
Securities or upon distribution of the corresponding series of Subordinated Debt
Securities to the holders of the Preferred Securities. The Preferred Securities
Guarantee will continue to be effective or will be reinstated, as the case may
be, if at any time any holder of the Preferred Securities must restore payment
of any sums paid under the Preferred Securities or the Preferred Securities
Guarantee.
GOVERNING LAW: The Preferred Securities Guarantee will be governed by and
construed in accordance with the laws of the State of New York.
RELATIONSHIP AMONG THE PREFERRED SECURITIES,
THE PREFERRED SECURITIES GUARANTEE
AND THE SUBORDINATED DEBT SECURITIES HELD BY THE TRUST
Payments of Distributions and redemption and liquidation payments due on
the Preferred Securities (to the extent the Trust has funds available for such
payments) will be guaranteed by the Company as and to the extent set forth under
"DESCRIPTION OF THE PREFERRED SECURITIES GUARANTEE". No single document
executed by the Company in connection with the issuance of the Preferred
Securities will provide for the Company's full, irrevocable and unconditional
guarantee of the Preferred Securities. It is only the combined operation of the
Company's obligations under the Preferred Securities Guarantee, the Declaration,
the corresponding series of Subordinated Debt Securities and the Indenture that
has the effect of providing a full, irrevocable and unconditional guarantee of
the Trust's obligations under its Preferred Securities.
-40-
<PAGE>
A holder of any Preferred Security may institute a legal proceeding
directly against the Company to enforce its rights under the Preferred
Securities Guarantee without first instituting a legal proceeding against the
Preferred Securities Guarantee Trustee, the Trust or any other person or entity.
As long as the Company makes payments of interest and other payments when
due on the Subordinated Debt Securities held by the Trust, such payments will be
sufficient to cover the payment of Distributions and redemption and Liquidation
Distributions due on the Preferred Securities, primarily because (i) the
aggregate principal amount of such Subordinated Debt Securities will be equal to
the sum of the aggregate liquidation amount of the Preferred Securities and
Common Securities, (ii) the interest rate and interest and other payment dates
on such Subordinated Debt Securities will match the Distribution rate and
Distribution and other payment dates for the Preferred Securities, (iii) the
Declaration provides that the Company shall pay for all and any costs, expenses
and liabilities of the Trust of such Preferred Securities except the Trust's
obligations under the Preferred Securities, and (iv) the Declaration provides
that the Trust will not engage in any activity that is not consistent with the
limited purposes of the Trust. If and to the extent that the Company does not
make payments on such Subordinated Debt Securities, the Trust will not have
funds available to make payments of Distributions or other amounts due on the
Preferred Securities.
A principal difference between the rights of a holder of a Preferred
Security (which represents an undivided beneficial interest in the assets of the
Trust thereof) and a holder of a Subordinated Debt Security is that a holder of
a Subordinated Debt Security will accrue, and (subject to the permissible
extension of the interest payment period) is entitled to receive, interest on
the principal amount of Subordinated Debt Securities held, while a holder of
Preferred Securities is entitled to receive Distributions only if and to the
extent the Trust has funds available for the payment of such Distributions.
Upon any voluntary or involuntary dissolution or liquidation of the Trust
not involving a distribution of the Subordinated Debt Securities held by the
Trust, after satisfaction of liabilities to creditors of the Trust, the holders
of the Preferred Securities will be entitled to receive, out of assets held by
the Trust, the Liquidation Distribution in cash. See "DESCRIPTION OF THE
PREFERRED SECURITIES OF THE TRUST -- Liquidation Distribution Upon Dissolution".
Upon any voluntary liquidation or bankruptcy of the Company, the Trust, as
holder of the Subordinated Debt Securities, would be a creditor of the Company,
subordinated in right of payment to all Senior Indebtedness, but entitled to
receive payment in full of principal, premium, if any, and interest, before any
stockholders of the Company receive payments or distributions.
A default or event of default under any Senior Indebtedness would not
constitute an Event of Default under the Subordinated Debt Securities Indenture.
However, in the event of payment defaults under, or acceleration of, Senior
Indebtedness, the subordination provisions of the Subordinated Debt Securities
provide that no payments may be made in respect of the Subordinated Debt
Securities until such Senior Indebtedness has been paid in full or any payment
default thereunder has been cured or waived. Failure to make required payments
on any series of Subordinated Debt Securities would constitute an Event of
Default under the Subordinated Debt Securities.
VALIDITY OF THE SECURITIES
Except as set forth below, the validity of the Offered Securities of the
Company will be passed upon for the Company by LeBoeuf, Lamb, Greene & MacRae,
L.L.P., a limited liability partnership including professional corporations, New
York, New York. Certain legal matters in connection with the Offered Securities
will be passed upon for the underwriters by Cahill Gordon & Reindel, a
partnership including a professional corporation, New York, New York. Certain
matters of Delaware law relating to the validity of the Preferred Securities
will be passed upon on behalf of the Trust by Richards, Layton & Finger, P.A.,
Wilmington, Delaware, special Delaware counsel to the Trust. Certain United
States federal income taxation matters will be passed upon for the Company and
the Trust by LeBoeuf, Lamb, Greene & MacRae, L.L.P, special tax counsel to the
Company and the Trust. All legal matters pertaining to title and the respective
liens
-41-
<PAGE>
of the 1993 Mortgage and the 1939 Mortgage will be passed upon only by
LeBoeuf, Lamb, Greene & MacRae, L.L.P. Cahill Gordon & Reindel from time to
time renders legal services to the Company. In giving their opinion, Cahill
Gordon & Reindel may rely as to all matters of Colorado law upon the opinion
of LeBoeuf, Lamb, Greene & MacRae, L.L.P.
EXPERTS
The consolidated balance sheets and statements of capitalization of the
Company and its subsidiaries as of December 31, 1997 and 1996, and the related
consolidated statements of income, shareholders' equity and cash flows for each
of the three years in the period ended December 31, 1997, and the related
financial statement schedule, included in the Company's Annual Report on Form
10-K for the year ended December 31, 1997, included in the New Century Energies,
Inc. combined Annual Report on Form 10-K for the year ended December 31, 1997,
which statements and schedule are incorporated by reference in this Registration
Statement, have been audited by Arthur Andersen LLP, independent public
accountants, as set forth in their reports with respect thereto, and are
incorporated by reference herein in reliance upon the authority of said firm as
experts in accounting and auditing in giving said reports.
PLAN OF DISTRIBUTION
The Company and/or the Trust may sell the Offered Securities: (i) directly
to purchasers, (ii) to or through underwriters, or (iii) through agents or
dealers. The Prospectus Supplement with respect to the Offered Securities will
set forth the terms of the offering of the Offered Securities, including the
name or names of any such underwriters, agents or dealers; the purchase price of
the Offered Securities and the net proceeds to the Company and/or the Trust from
such sale; any underwriting discounts and commissions or agency fees and other
items constituting underwriters' or agents' compensation; the initial public
offering price; any discounts or concessions allowed or reallowed or paid to
dealers and any securities exchange on which such Offered Securities may be
listed. Any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to time.
If underwriters are used in any sale, the Offered Securities will be
acquired by such underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
The Offered Securities may be offered to the public either through underwriting
syndicates represented by one or more managing underwriters or directly by one
or more firms acting as underwriters. The underwriter or underwriters with
respect to a particular underwritten offering of Offered Securities will be
named in the Prospectus Supplement relating to such offering and, if an
underwriting syndicate is used, the managing underwriter or underwriters will be
set forth on the cover of such Prospectus Supplement. Unless otherwise set
forth in the Prospectus Supplement relating thereto, the obligations of the
underwriters to purchase the Offered Securities will be subject to certain
conditions precedent, and the underwriters will be obligated to purchase all the
Offered Securities if any are purchased.
If dealers are utilized in a sale of Offered Securities, the Company and/or
the Trust will sell such Offered Securities to the dealers as principal. The
dealers may then resell such Offered Securities to the public at varying prices
to be determined by such dealers at the time of resale. The names of the
dealers and the terms of the transaction will be set forth in the Prospectus
Supplement relating thereto.
The Offered Securities may be sold directly by the Company and/or the Trust
or through agents designated by the Company and/or the Trust from time to time.
Any agent involved in the offer or sale of the Offered Securities in respect to
which this Prospectus is delivered will be named, and any commissions payable by
the Company and/or the Trust to such agent will be set forth in the Prospectus
Supplement relating thereto. Unless otherwise indicated in the Prospectus
Supplement, any such agent will be acting on a best efforts basis for the period
of its appointment.
-42-
<PAGE>
Agents, dealers and underwriters may be entitled under agreements with the
Company and/or the Trust to indemnification by the Company and/or the Trust
against certain civil liabilities, including liabilities under the Securities
Act, or to contribution with respect to payments which such agents, dealers or
underwriters may be required to make in respect thereof. Agents, dealers and
underwriters may be customers of, engage in transactions with, or perform
services for the Company and/or the Trust in the ordinary course of business.
-43-
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C> <C>
Securities and Exchange Commission Registration Fee . . . . . . . . . . $ 132,750
NYSE Listing Fee. . . . . . . . . . . . . . . . . . . . . . . . . . . . 95,100
Blue Sky Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15,000
* Accountants' Fees and Expenses. . . . . . . . . . . . . . . . . . . . . 25,000
* Company Counsel's Fees and Expenses . . . . . . . . . . . . . . . . . . 350,000
* Trustees' Fees and Expenses, including Counsel and
Authentication Fees . . . . . . . . . . . . . . . . . . . . . . . . . . 90,000
* Printing of Registration Statement, Prospectus, Prospectus
Supplements, Supplemental Indentures, etc. . . . . . . . . . . . . 250,000
* Rating Agencies' Fees . . . . . . . . . . . . . . . . . . . . . . . . . 150,000
* Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100,000
----------
*Total Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . $1,207,850
----------
----------
</TABLE>
- ------------------------
*Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 7-108-402, 7-109-102, 7-109-103, 7-109-104, 7-109-105, 7-109-106,
7-109-107, 7-109-108 and 7-109-109 of the Colorado Business Corporation Act
provide for indemnification of directors, officers, employees, fiduciaries and
agents of Colorado corporations such as the Registrant, subject to certain
limitations, and authorize such corporations to purchase and maintain insurance
on behalf of such persons against any liability incurred in any such capacity or
arising out of their status as such. The Registrant currently has such
insurance in effect.
A resolution adopted at a special meeting of stockholders of the Registrant
held in November, 1943, provides: "That each Director and Officer of the
Company (or his legal representative) shall be indemnified by the Company
against all claims, liabilities, expenses and costs imposed upon or reasonably
incurred by him in connection with any action, suit or proceeding, or the
settlement or compromise of any such claim, liability, action, suit or
proceeding (other than amounts paid to the Company itself), in which he may be
involved by reason of his being or having been such Director or Officer of the
Company, except in relation to matters as to which he shall be finally adjudged
in any such action, suit or proceeding to have been derelict in the performance
of his duties as such Director or Officer, provided, however, in respect to any
such settlement or compromise that it shall have been determined, by a majority
of the Directors of the Company not affected by self interest, that such
settlement or compromise should be made, and that such Director or Officer had
not been derelict in the performance of his official duties; and provided
further that the foregoing indemnity shall not extend to or cover any claims,
liabilities, action, suit or proceeding under the Securities Act of 1933, or any
costs or expenses in connection therewith unless the Director or Officer of the
Company involved shall be finally adjudged in such action, suit or proceeding to
have been subject to no liability under said Act, or in case of settlement or
compromise, unless the Company shall have obtained an opinion of independent
counsel to the effect that he is not liable under said Act. The foregoing right
of indemnification shall not be exclusive of any other right or rights to which
such Director or Officer may be entitled as a matter of law."
Article V of the Registrant's Restated Articles of Incorporation, as
amended, provides: "To the fullest extent permitted by [the Colorado
Corporation Code as the same exists or may hereafter be amended], a director of
this Corporation shall not be liable to the Corporation or its shareholders for
monetary damages for breach of fiduciary duty as a director. Neither the
amendment, nor the repeal of this Article, nor the adoption
II-1
<PAGE>
of any provision of the Articles of Incorporation inconsistent with this
Article, shall eliminate or reduce the protection afforded by this Article to
a director of the Corporation with respect to any matter which occurred, or
any cause of action, suit or claim which but for this Article would have
accrued or arisen, prior to such amendment, repeal or adoption."
To the maximum extent permitted by law, the Company shall indemnify any
person who is or was a director, officer, agent, fiduciary or employee of the
Company against any claim, liability, loss or expense arising against or
incurred by such person as a result of circumstances, events, actions and
omissions occurring in such capacity. The Company further shall have the
authority to maintain insurance at the Company's expense providing for such
indemnification, including insurance with respect to claims, liabilities, losses
and expenses against which the Company would not otherwise have the power to
indemnify such persons.
ITEM 16. EXHIBITS.
Exhibits are listed in the Exhibit Index on page II-6 hereof.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933, as amended (the "1933 Act");
(ii) to reflect in the Prospectus any facts or events
arising after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in the effective
Registration Statement; and
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the 1933 Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
II-2
<PAGE>
(4) That, for purposes of determining any liability under the 1933 Act,
each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(5) That, for purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(6) That, for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the 1933 Act may
be permitted to directors, officers and controlling persons of the Registrant
pursuant to the provisions under Item 15 above, or otherwise, the Registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the 1933 Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer, or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the 1933 Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing Form S-3 and has duly caused this Registration Statement
to be signed on its behalf by the undersigned, thereunto duly authorized, in the
City and County of Denver and the State of Colorado, on the 30th day of March,
1998.
PUBLIC SERVICE COMPANY OF COLORADO
By: /s/ R.C. Kelly
----------------------------------
Executive Vice President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated:
<TABLE>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
*
- --------------------------------------- Director March 30, 1998
Bill D. Helton, Chairman of the Board
*
- --------------------------------------- Principal Executive Officer March 30, 1998
Wayne H. Brunetti, President and Chief
Executive Officer and Vice Chairman
of the Board
*
- --------------------------------------- Principal Financial Officer March 30, 1998
Brian P. Jackson, Senior Vice President
and Chief Financial Officer
*
- --------------------------------------- Principal Accounting Officer March 30, 1998
Teresa S. Madden, Controller
/s/ R.C. Kelly
- --------------------------------------- Director March 30, 1998
R.C. Kelly, Executive Vice President
and Director
*
- --------------------------------------- Director March 30, 1998
Henry H. Hamilton, Director
*
- --------------------------------------- Director March 30, 1998
David M. Wilks, Director
</TABLE>
*By: /s/ R.C. Kelly
-----------------------------------
Name: R.C. Kelly
Attorney-in-Fact
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, PSCO Capital
Trust I certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and that it has duly caused this
Registration Statement to be signed on their behalf by the undersigned,
thereunto duly authorized, in the City and County of Denver and State of
Colorado on the 30th day of March, 1998.
PSCO CAPITAL TRUST I
By: /s/ Nancy Felker
--------------------------------
Nancy Felker, as Trustee
II-5
<PAGE>
EXHIBIT INDEX
1(a) Form of Bond Purchase Contract (to be filed under subsequent Form
8-K).
1(b) Form of Agency Agreement with respect to the Medium Term Notes (to
be filed under subsequent Form 8-K).
1(c) Form of Underwriting Agreement with respect to the Senior Debt
Securities (to be filed under subsequent Form 8-K).
1(d) Form of Underwriting Agreement with respect to the Subordinated Debt
Securities (to be filed under subsequent Form 8-K).
1(e) Form of Underwriting Agreement with respect to the Preferred
Securities (to be filed under subsequent Form 8-K).
3* Amended and Restated Articles of Incorporation of the Registrant
dated September 19, 1997 (Form 10-K, December 31, 1997 - Exhibit
3(a)(1)).
4(a)(1)* Indenture, dated as of December 1, 1939, providing for the issuance of
First Mortgage Bonds (Form 10 for 1946-Exhibit (B-1)).
4(a)(2)* Indentures supplemental to Indenture dated as of December 1, 1939:
<TABLE>
Previous Filing: Previous Filing:
Form; Date or Form; Date or Exhibit
Dated as of File No. Exhibit No. Dated as of File No. No.
- ------------- ----------------- ----------- ------------- ---------------- -------
<S> <C> <C> <C> <C> <C>
Mar. 14, 1941 10, 1946 B-2 Apr. 21, 1970 8-K, Apr. 1970 1
May 14, 1941 10, 1946 B-3 Sept. 1, 1970 8-K, Sept. 1970 2
Apr. 28, 1942 10, 1946 B-4 Feb. 1, 1971 8-K, Feb. 1971 2
Apr. 14, 1943 10, 1946 B-5 Aug. 1, 1972 8-K, Aug. 1972 2
Apr. 27, 1944 10, 1946 B-6 June 1, 1973 8-K, June 1973 1
Apr. 18, 1945 10, 1946 B-7 Mar. 1, 1974 8-K, Apr. 1974 2
Apr. 23, 1946 10-K, 1946 B-8 Dec. 1, 1974 8-K, Dec. 1974 1
Apr. 9, 1947 10-K, 1946 B-9 Oct. 1, 1975 S-7, (2-60082) 2(b)(3)
June 1, 1947 S-1, (2-7075) 7(b) Apr. 28, 1976 S-7, (2-60082) 2(b)(4)
Apr. 1, 1948 S-1, (2-7671) 7(b)(1) Apr. 28, 1977 S-7, (2-60082) 2(b)(5)
May 20, 1948 S-1, (2-7671) 7(b)(2) Nov. 1, 1977 S-7, (2-62415) 2(b)(3)
Oct. 1, 1948 10-K, 1948 4 Apr. 28, 1978 S-7, (2-62415) 2(b)(4)
Apr. 20, 1949 10-K, 1949 1 Oct. 1, 1978 10-K, 1978 D(1)
Apr. 24, 1950 8-K, Apr. 1950 1 Oct. 1, 1979 S-7, (2-66484) 2(b)(3)
Apr. 18, 1951 8-K, Apr. 1951 1 Mar. 1, 1980 10-K, 1980 4(c)
Oct. 1, 1951 8-K, Nov. 1951 1 Apr. 28, 1981 S-16, (2-74923) 4(c)
Apr. 21, 1952 8-K, Apr. 1952 1 Nov. 1, 1981 S-16, (2-74923) 4(d)
Dec. 1, 1952 S-9, (2-11120) 2(b)(9) Dec. 1, 1981 10-K, 1981 4(c)
Apr. 15, 1953 8-K, Apr. 1953 2 Apr. 29, 1982 10-K, 1982 4(c)
April 19, 1954 8-K, Apr. 1954 1 May 1, 1983 10-K, 1983 4(c)
Oct. 1, 1954 8-K, Oct. 1954 1 Apr. 30, 1984 S-3, (2-95814) 4(c)
Apr. 18, 1955 8-K, Apr. 1955 1 Mar. 1, 1985 10-K, 1985 4(c)
</TABLE>
II-6
<PAGE>
<TABLE>
Previous Filing: Previous Filing:
Form; Date or Form; Date or Exhibit
Dated as of File No. Exhibit No. Dated as of File No. No.
- ------------- ----------------- ----------- ------------- ---------------- -------
<S> <C> <C> <C> <C> <C>
Apr. 24, 1956 10-K, 1956 1 Nov. 1, 1986 10-K, 1986 4(c)
May 1, 1957 S-9, (2-13260) 2(b)(15) May 1, 1987 10-K, 1987 4(c)
April 10, 1958 8-K, Apr. 1958 1 July 1, 1990 S-3, (33-37431) 4(c)
May 1, 1959 8-K, May 1959 2 Dec. 1, 1990 10-K, 1990 4(c)
Apr. 18, 1960 8-K, Apr. 1960 1 Mar. 1, 1992 10-K, 1992 4(d)
Apr. 19, 1961 8-K, Apr. 1961 1 Apr. 1, 1993 10-Q, June 30, 1993 4(a)
Oct. 1, 1961 8-K, Oct. 1961 2 June 1, 1993 10-Q, June 30, 1993 4(b)
Mar. 1, 1962 8-K, Mar. 1962 3(a) Nov. 1, 1993 S-3, (33-51167) 4(a)(3)
June 1, 1964 8-K, June 1964 1 Jan. 1, 1994 10-K, 1993 4(a)(3)
May 1, 1966 8-K, May 1966 2 Sept. 2, 1994 8-K, Sept. 1994 4(a)
July 1, 1967 8-K, July 1967 2 May 1, 1996 10-Q, June 30, 1996 4(a)
July 1, 1968 8-K, July 1968 2 Nov. 1, 1996 10-K, 1996 4(a)(3)
Apr. 25, 1969 8-K, Apr. 1969 1 Feb. 1, 1997 10-Q, March 31, 1997 4(a)
</TABLE>
4(a)(3)** Form of Supplemental Indenture establishing series of First Mortgage
Bonds under the Indenture, dated as of December 1, 1939.
4(b)(1)* Indenture, dated as of October 1, 1993, providing for the issuance of
First Collateral Trust Bonds (Form 10-Q, September 30, 1993 - Exhibit
4(a)).
4(b)(2)* Indentures supplemental to Indenture dated as of October 1, 1993:
<TABLE>
Previous Filing:
Form; Date or
Dated as of File No. Exhibit No.
- ----------------- -------------------- -----------
<S> <C> <C>
November 1, 1993 S-3, (33-51167) 4(b)(2)
January 1, 1994 10-K, 1993 4(b)(3)
September 2, 1994 8-K, Sept. 1994 4(b)
May 1, 1996 10-Q, June 30, 1996 4(b)
November 1, 1996 10-K, 1996 4(b)(3)
February 1, 1997 10-Q, March 31, 1997 4(b)
</TABLE>
4(b)(3)** Form of Supplemental Indenture establishing series of First Collateral
Trust Bonds or Medium Term Notes under the Indenture, dated as of
October 1, 1993.
4(c) Form of Senior Debt Securities Indenture, providing for the issuance
of Senior Debt Securities.
4(d) Form of Subordinated Debt Securities Indenture, providing for the
issuance of Subordinated Debt Securities.
4(e) Form of Supplemental Indenture to Form of Subordinated Debt Securities
Indenture establishing a series of Deferrable Interest Subordinated
Debentures.
4(f) Form of Junior Subordinated Debentures (included in Exhibit 4(e)).
II-7
<PAGE>
4(g)** Form of Guarantee Agreement with respect to the Preferred Securities
of PSCO Capital Trust I.
4(h)** Certificate of Trust of PSCO Capital Trust I.
4(i)** Declaration of Trust of PSCO Capital Trust I.
4(j) Form of Amended and Restated Declaration of Trust of PSCO Capital
Trust I.
4(k) Form of Preferred Security (included in Exhibit 4(j)).
5(a)** Opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P. regarding the
validity of certain Offered Securities.
5(b)** Opinion of Richards, Layton & Finger, P.A. regarding the validity of
the Preferred Securities under Delaware Law.
8(a) Tax opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P. (to be filed
under subsequent Form 8-K).
12** Computation of Ratio of Consolidated Earnings to Consolidated Fixed
Charges.
23(a) Consent of Arthur Andersen LLP.
23(b)** Consents of LeBoeuf, Lamb, Greene & MacRae, L.L.P. and Richards,
Layton & Finger, P.A. are included in their opinions filed as Exhibits
5(a) and 5(b), respectively.
24** Power of Attorney.
25(a)** Statement of Eligibility of First Trust of New York, National
Association, as successor Trustee under the Indenture, dated as of
October 1, 1993.
25(b)** Statement of Eligibility of The Bank of New York, as Trustee under the
Senior Debt Securities Indenture.
25(c)** Statement of Eligibility of The Bank of New York, as Trustee under the
Subordinated Debt Securities Indenture.
25(d)** Statement of Eligibility of The Bank of New York, as Trustee of the
Preferred Securities Guarantee of the Company for the benefit of the
holders of the Preferred Securities of PSCO Capital Trust I.
25(e)** Statement of Eligibility of The Bank of New York, as Trustee under the
Amended and Restated Declaration of Trust of PSCO Capital Trust I.
- --------------
* Previously filed as indicated and incorporated herein by reference.
** Previously filed with this Registration Statement.
II-8
<PAGE>
================================================================================
PUBLIC SERVICE COMPANY OF COLORADO,
AS ISSUER
TO
THE BANK OF NEW YORK,
AS TRUSTEE
_________________
INDENTURE
SENIOR DEBT SECURITIES
DATED AS OF , 1998
_________________
================================================================================
<PAGE>
PUBLIC SERVICE COMPANY OF COLORADO
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of _______________, 1998
Trust Indenture Indenture Section
Act Section
Section 310(a)(1). . . . . . . . . . . . . . . . . . . . . . 609
(a)(2). . . . . . . . . . . . . . . . . . . . . . 609
(a)(3). . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4). . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(5). . . . . . . . . . . . . . . . . . . . . . 609
(b) . . . . . . . . . . . . . . . . . . . . . . . 608, 610
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . . . . . 613
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . . 701, 702(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . 702(c)
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . 703(b)
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . . 704
(b) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1). . . . . . . . . . . . . . . . . . . . . . 102
(c)(2). . . . . . . . . . . . . . . . . . . . . . 102
(c)(3). . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . 102
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . 601(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . . . . . 601(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . 601(c)
(d)(1). . . . . . . . . . . . . . . . . . . . . . 601(a), 601(c)
(d)(2). . . . . . . . . . . . . . . . . . . . . . 601(c)
(d)(3). . . . . . . . . . . . . . . . . . . . . . 601(c)
(e) . . . . . . . . . . . . . . . . . . . . . . . 514
Section 316(a)(last sentence). . . . . . . . . . . . . . . . 101
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . 502, 513
(a)(2). . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . 508
Section 317(a)(1). . . . . . . . . . . . . . . . . . . . . . 503
(a)(2). . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . 1008
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . 107
_______________
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of this Indenture.
<PAGE>
TABLE OF CONTENTS
Page
----
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
Definitions and other Provisions
of General Application
SECTION 101. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . 1
ACT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
AFFILIATE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
AUTHENTICATING AGENT . . . . . . . . . . . . . . . . . . . . . . . . . 2
BANKRUPTCY LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
BOARD OF DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . 2
BOARD RESOLUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
BUSINESS DAY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
COMMISSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
COMPANY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
COMPANY REQUEST or COMPANY ORDER . . . . . . . . . . . . . . . . . . . 3
CORPORATE TRUST OFFICE . . . . . . . . . . . . . . . . . . . . . . . . 3
COVENANT DEFEASANCE. . . . . . . . . . . . . . . . . . . . . . . . . . 3
CUSTODIAN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
DEFAULTED INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . 3
DEFEASANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
DEPOSITORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
DOLLARS and $. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
EVENT OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
EXCHANGE ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
GAAP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
GLOBAL SECURITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
HOLDER or SECURITYHOLDER . . . . . . . . . . . . . . . . . . . . . . . 4
INDENTURE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
INTEREST PAYMENT DATE. . . . . . . . . . . . . . . . . . . . . . . . . 4
MATURITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
OFFICER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
OFFICER'S CERTIFICATE. . . . . . . . . . . . . . . . . . . . . . . . . 5
OPINION OF COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ORIGINAL ISSUE DISCOUNT SECURITY . . . . . . . . . . . . . . . . . . . 5
OUTSTANDING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
PAYING AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
PERIODIC OFFERING. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
PERSON . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
PLACE OF PAYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
PREDECESSOR SECURITY . . . . . . . . . . . . . . . . . . . . . . . . . 6
REDEMPTION DATE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
REDEMPTION PRICE . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
REGISTERED SECURITY. . . . . . . . . . . . . . . . . . . . . . . . . . 7
REGULAR RECORD DATE. . . . . . . . . . . . . . . . . . . . . . . . . . 7
RESPONSIBLE OFFICER. . . . . . . . . . . . . . . . . . . . . . . . . . 7
-i-
<PAGE>
Page
----
SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECURITY REGISTER and SECURITY REGISTRAR . . . . . . . . . . . . . . . 7
SPECIAL RECORD DATE. . . . . . . . . . . . . . . . . . . . . . . . . . 7
STATED MATURITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
TRANCHE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
TRUST INDENTURE ACT. . . . . . . . . . . . . . . . . . . . . . . . . . 7
TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
U.S. GOVERNMENT OBLIGATIONS. . . . . . . . . . . . . . . . . . . . . . 8
VICE PRESIDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 102. Compliance Certificates and Opinions. . . . . . . . . . . . . 8
SECTION 103. Form of Documents Delivered to Trustee. . . . . . . . . . . . 9
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 105. Notices, Etc., to Trustee and Company . . . . . . . . . . . . 11
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . 11
SECTION 107. Conflict with Trust Indenture Act . . . . . . . . . . . . . . 12
SECTION 108. Effect of Headings and Table of Contents. . . . . . . . . . . 12
SECTION 109. Successors and Assigns. . . . . . . . . . . . . . . . . . . . 12
SECTION 110. Separability Clause . . . . . . . . . . . . . . . . . . . . . 13
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . 13
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 113. Legal Holidays. . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 114. No Recourse Against Others. . . . . . . . . . . . . . . . . . 13
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 202. Form of Trustee's Certificate of Authentication . . . . . . . 14
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series. . . . . . . . . . . . . 15
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 303. Execution, Authentication, Delivery and Dating. . . . . . . . 18
SECTION 304. Temporary Securities. . . . . . . . . . . . . . . . . . . . . 22
SECTION 305. Registration, Registration of Transfer and Exchange . . . . . 22
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. . . . . . . 24
SECTION 307. Payment of Interest; Interest Rights Preserved. . . . . . . . 25
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . 27
SECTION 309. Cancellation. . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . . 28
-ii-
<PAGE>
Page
----
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . 28
SECTION 402. Application of Trust Money. . . . . . . . . . . . . . . . . . 29
ARTICLE FIVE
Remedies
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 502. Acceleration of Maturity; Rescission and Annulment. . . . . . 32
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 504. Trustee May File Proofs of Claim. . . . . . . . . . . . . . . 33
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities. . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 506. Application of Money Collected. . . . . . . . . . . . . . . . 34
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . 35
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest. . . . . . . . . . . . . . . . . . . . . 36
SECTION 509. Restoration of Rights and Remedies. . . . . . . . . . . . . . 36
SECTION 510. Rights and Remedies Cumulative. . . . . . . . . . . . . . . . 36
SECTION 511. Delay or Omission Not Waiver. . . . . . . . . . . . . . . . . 36
SECTION 512. Control by Holders. . . . . . . . . . . . . . . . . . . . . . 37
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . 37
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . 37
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities of the Trustee. . . . . . 38
SECTION 602. Notice of Defaults. . . . . . . . . . . . . . . . . . . . . . 38
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . 39
SECTION 604. Not Responsible for Recitals or Issuance of
Securities. . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . 40
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . 40
SECTION 607. Compensation and Reimbursement. . . . . . . . . . . . . . . . 41
SECTION 608. Disqualification; Conflicting Interests . . . . . . . . . . . 41
SECTION 609. Corporate Trustee Required; Eligibility . . . . . . . . . . . 42
SECTION 610. Resignation and Removal; Appointment of Successor . . . . . . 42
SECTION 611. Acceptance of Appointment by Successor. . . . . . . . . . . . 44
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business. . . . . . . . . . . . . . . . . . . . . . . . . . . 45
-iii-
<PAGE>
Page
----
SECTION 613. Preferential Collection of Claims Against Company . . . . . . 45
SECTION 614. Appointment of Authenticating Agent . . . . . . . . . . . . . 45
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 702. Preservation of Information; Communications to
Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 703. Reports by Trustee. . . . . . . . . . . . . . . . . . . . . . 49
SECTION 704. Reports by Company. . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE EIGHT
Consolidation, Merger, Lease, Sale or Transfer
SECTION 801. When Company May Merge, Etc.. . . . . . . . . . . . . . . . . 51
SECTION 802. Opinion of Counsel. . . . . . . . . . . . . . . . . . . . . . 51
SECTION 803. Successor Corporation Substituted . . . . . . . . . . . . . . 51
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders. . . . . . 52
SECTION 902. Supplemental Indentures with Consent of Holders . . . . . . . 54
SECTION 903. Execution of Supplemental Indentures. . . . . . . . . . . . . 55
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . 56
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . . . . . . 56
SECTION 906. Reference in Securities to Supplemental Indentures. . . . . . 56
ARTICLE TEN
Covenants
SECTION 1001. Payments of Securities. . . . . . . . . . . . . . . . . . . . 56
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . 56
SECTION 1003. Corporate Existence . . . . . . . . . . . . . . . . . . . . . 57
SECTION 1004. Payment of Taxes and Other Claims . . . . . . . . . . . . . . 57
SECTION 1005. Compliance Certificates . . . . . . . . . . . . . . . . . . . 57
SECTION 1006. Commission Reports. . . . . . . . . . . . . . . . . . . . . . 58
SECTION 1007. Waiver of Stay, Extension or Usury Laws . . . . . . . . . . . 59
SECTION 1008. Money for Securities Payments to Be Held in Trust . . . . . . 59
-iv-
<PAGE>
Page
----
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Applicability of Article. . . . . . . . . . . . . . . . . . . 61
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . 61
SECTION 1103. Selection by Trustee of Securities to Be Redeemed . . . . . . 61
SECTION 1104. Notice of Redemption. . . . . . . . . . . . . . . . . . . . . 62
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . 64
SECTION 1106. Securities Payable on Redemption Date . . . . . . . . . . . . 64
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . 64
ARTICLE TWELVE
Sinking Funds
SECTION 1201. Applicability of Article. . . . . . . . . . . . . . . . . . . 65
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities . . . . 65
SECTION 1203. Redemption of Securities for Sinking Fund . . . . . . . . . . 65
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
SECTION 1301. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance . . . . . . . . . . . . . . 66
SECTION 1302. Defeasance and Discharge. . . . . . . . . . . . . . . . . . . 66
SECTION 1303. Covenant Defeasance.. . . . . . . . . . . . . . . . . . . . . 67
SECTION 1304. Conditions to Defeasance or Covenant Defeasance . . . . . . . 67
SECTION 1305. Deposited Money and Government Obligations To Be
Held In Trust . . . . . . . . . . . . . . . . . . . . . . . . 69
ARTICLE FOURTEEN
Miscellaneous
SECTION 1401. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . 70
-v-
<PAGE>
INDENTURE, dated as of , 1998, between PUBLIC SERVICE
COMPANY OF COLORADO, a corporation duly organized and existing under the laws
of the State of Colorado (herein called the "COMPANY"), having its principal
office at 1225 17th Street, Denver, Colorado 80202, and The Bank of New
York, a New York banking corporation, as Trustee (herein called the
"TRUSTEE"), having its principal place of business at 101 Barclay Street,
Floor 21 West, New York, New York 10081.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured senior
debentures, notes or other evidences of indebtedness (herein called the
"SECURITIES"), to be issued in one or more series, authenticated and delivered,
as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of the
Securities of any series, without giving priority of any one Security or series
over any other, except as otherwise expressly provided herein, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
<PAGE>
(4) the word "INCLUDING" (and with correlative meaning "INCLUDE")
means including, without limiting the generality of, any description
preceding such term; and
(5) the words "HEREIN," "HEREOF" and "HEREUNDER" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"ACT", when used with respect to any Holder, has the meaning specified
in Section 104.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"AUTHENTICATING AGENT" means with respect to any Security, any Person
authorized by the Trustee pursuant to Section 614 to act on behalf of the
Trustee to authenticate such Securities.
"BANKRUPTCY LAW" means Title 11, U.S. Code, as in effect from time to
time, or any similar federal or state law for the relief of debtors.
"BOARD OF DIRECTORS" means the board of directors of the Company;
provided, however, that when the context refers to actions or resolutions of the
Board of Directors, then the term "Board of Directors" shall also mean any duly
authorized committee of the Board of Directors of the Company or Officer
authorized to act with respect to any particular matter to exercise the power of
the Board of Directors of the Company.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"BUSINESS DAY", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by
law, regulation or executive order to close.
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"COMMISSION" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
a Vice President, and by its Treasurer, an Assistant Treasurer, its Controller,
an Assistant Controller, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"CORPORATE TRUST OFFICE" means the principal office of the Trustee
at which at any particular time its corporate trust business shall be
administered, which office at the date hereof is located at 101 Barclay
Street, Floor 21 West, New York, New York 10081.
"COVENANT DEFEASANCE" has the meaning specified in Section 1303.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"DEFAULT" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DEFEASANCE" has the meaning specified in Section 1302.
"DEPOSITORY" means, with respect to the Securities of any series, or
any Tranche thereof, issuable or issued in whole or in part in the form of one
or more Global Securities, the Person designated as Depository by the Company
pursuant to Section 301, which must be a clearing agency registered under the
Exchange Act until a successor Depository shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Depository" shall mean
or include each Person who is then a Depository hereunder, and if at any time
there is more than one such Person, "Depository" shall mean the Depository with
respect to the Securities of that series or Tranche.
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"DOLLARS" and "$" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debt.
"EVENT OF DEFAULT" has the meaning specified in Section 501.
"EXCHANGE ACT" means the Securities and Exchange Act of 1934 and the
rules and regulations promulgated thereunder, in each case as amended from time
to time.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Standards Accounting Board, and as are applicable to the financial
statements of the Company, in each case as of the date of any computation
required hereunder.
"GLOBAL SECURITY" means a Security that evidences all or part of the
Securities of any series, or any Tranche thereof.
"HOLDER" or "SECURITYHOLDER" means, with respect to a Security, the
Person in whose name such Security is registered in the Security Register (which
terms, in the case of a Global Security, mean the Depository with respect to
such Security).
"INDENTURE" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities, and any Tranche
thereof, established as contemplated by Section 301.
"INTEREST", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"INTEREST PAYMENT DATE", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"MATURITY", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"OFFICER" means the Chairman of the Board, the Vice Chairman of the
Board, the President, any Vice President, the Treasurer, any Assistant
Treasurer, the Controller, the Secretary or any Assistant Secretary of the
Company.
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"OFFICER'S CERTIFICATE" means a certificate signed by an Officer and
delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be an
employee of or counsel for the Company, and who shall be reasonably acceptable
to the Trustee.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"OUTSTANDING", when used with respect to any Securities, means, as of
the date of determination, all such Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust or
set aside and segregated in trust by the Company (if the Company shall act
as its own Paying Agent) for the Holders of such Securities; provided that,
if such Securities are to be redeemed prior to the Stated Maturity thereof,
notice of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(iii) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations of the
Company; and
(iv) Securities which have been defeased pursuant to Section
1302;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder (a) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be that portion of the principal amount
thereof that could be declared to be due and payable upon the occurrence of an
Event of Default and the continuation thereof pursuant to the terms of such
Original Issue Discount Security as of the date of such determination and
(b) Securities owned by the Company or any other obligor upon the
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Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Securities
which the Trustee knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor.
"PAYING AGENT" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest, if any, on any Securities on
behalf of the Company. The Company may act as Paying Agent with respect to any
Securities issued hereunder.
"PERIODIC OFFERING" means an offering of Securities of a series from
time to time any or all of the specific terms of which Securities, which may be
in one or more Tranches, including the rate or rates of interest, if any,
thereon, the Stated Maturity or Maturities thereof and the redemption
provisions, if any, with respect thereto, are to be determined by the Company or
its agents from time to time subsequent to the initial request for
authentication and delivery of such Securities by the Trustee, all as
contemplated in Section 301.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PLACE OF PAYMENT", when used with respect to any Security, means the
place or places where the principal of (and premium, if any) and interest, if
any, on such Security or any Tranche thereof, are payable as specified as
contemplated by Section 301.
"PREDECESSOR SECURITY" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed (to the extent
lawful) to evidence the same debt as the mutilated, destroyed, lost or stolen
Security.
"REDEMPTION DATE", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
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"REDEMPTION PRICE", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"REGISTERED SECURITY" means any Security issued hereunder and
registered in the Security Register.
"REGULAR RECORD DATE" for the interest payable on any Interest Payment
Date on the Securities means the date specified for that purpose as contemplated
by Section 301.
"RESPONSIBLE OFFICER", when used with respect to the Trustee, means
the chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"SECURITIES" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective
meanings specified in Section 305.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"STATED MATURITY", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"TRANCHE" means a group of Securities which (a) are of the same series
and (b) are identical except as to principal amount and/or date of issuance.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this Indenture was executed;
provided, however, that in the event that such Act is amended after such date,
"TRUST INDENTURE ACT" means, to the extent required by such amendment, the Trust
Indenture Act of 1939 as so amended.
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"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"U.S. GOVERNMENT OBLIGATIONS" means securities which 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 timely payment of which is unconditionally guaranteed by the full
faith and credit of the United States of America which, in either case, are not
callable or redeemable at the option of the issuer thereof or otherwise subject
to prepayment, and shall also include a depository receipt issued by a New York
Clearing House bank or trust company as custodian with respect to any such U.S.
Government Obligation or a specific payment or interest on or principal of any
such U.S. Government Obligation held by such custodian for the account of the
holder of a depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt or from any amount held by the custodian in
respect of the U.S. Government Obligation or the specific payment of interest on
or principal of the U.S. Government Obligation evidenced by such depository
receipt.
"VICE PRESIDENT", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, other than an action permitted
by Sections 614 and 704 hereof, the Company shall furnish to the Trustee an
Officer's Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
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Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
a. a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
b. a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
c. a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
d. a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Officer may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such Officer has actual knowledge that the certificate or
opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or Opinion
of Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an Officer or Officers of the
Company stating that the information with respect to such factual matters is in
the possession of the Company, unless such counsel has actual knowledge that the
certificate or opinion or representations with respect to such matters are
erroneous.
The provisions above requiring that certain persons have actual
knowledge that certain matters or opinions are erroneous shall not be read to
impose any duty of examination or investigation upon such persons.
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Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "ACT" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit or written statement (which
need not be notarized) of a witness of such execution or by a certificate of a
notary public or other officer authorized by law to take acknowledgments of
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is by a signer
acting in a capacity other than his individual capacity, such certificate,
affidavit or written statement shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee and the Company deem sufficient.
(c) The ownership of Registered Securities shall be proved by the
Security Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(e) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by Company
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Order, fix in advance a record date for the determination of Holders entitled
to give such request, demand, authorization, direction, notice, consent,
waiver or other Act, but the Company shall have no obligation to do so. If
such a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such record
date, but only the Holders of record at the close of business on such record
date shall be deemed to be Holders for the purposes of determining (i) whether
Holders of the requisite proportion of Outstanding Securities have authorized
or agreed or consented to such request, demand, authorization, direction,
notice, consent, waiver or other Act, and for that purpose the Outstanding
Securities shall be computed as of such record date and/or (ii) which Holders
may revoke any such Act (notwithstanding subsection (f) of this Section).
(f) Until such time as written instruments shall have been delivered
to the Trustee with respect to the requisite percentage of principal amount of
Securities for the action contemplated by such instruments, any such instrument
executed and delivered by or on behalf of a Holder may be revoked with respect
to any or all of such Securities by written notice by such Holder or any
subsequent Holder, proven in the manner in which such instrument was proven.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee and received by the Trustee at its Corporate Trust
Office, Attention: Corporate Trust Administrator, or
(b) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this Indenture, attention: Secretary, or at any other
address previously furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture or any Security provides for notice to Holders of
any event, such notice shall be deemed sufficiently given (unless otherwise
herein or in such Security expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his
address as
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it appears in the Security Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such notice.
In any case where notice to Holders is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other
Holders or the validity of the proceedings to which such notice relates. Where
this Indenture or any Security provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or shall be
excluded, as the case may be.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The headings of the Articles and Sections herein and the Table of
Contents are for convenience of reference only and shall not be taken to be any
part of or to control or affect the meaning, construction or effect of
provisions of this Indenture.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
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SECTION 110. SEPARABILITY CLAUSE.
If any provision of this Indenture or of the Securities, or the
application of any such provision to any Person or circumstance, shall be held
to be invalid, illegal or unenforceable, the remainder of this Indenture or of
the Securities, or the application of such provision to Persons or circumstances
other than those as to whom or which it is invalid, illegal or unenforceable,
shall not in any way be affected or impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities shall be governed by and construed
in accordance with the laws (other than the choice of law provisions) of the
State of New York except to the extent that the Trust Indenture Act shall be
applicable.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day in any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities, other than a provision in Securities of any series, or any Tranche
thereof, or in the indenture supplemental hereto, Board Resolution or Officer's
Certificate that establishes the terms of the Securities of such series or
Tranche, which specifically states that such provision shall apply in lieu of
this Section) payment of interest or principal and premium, if any, need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, and, if such payment is made or duly provided for on such Business
Day, no interest shall accrue on the amount so payable for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be, to such Business Day.
SECTION 114. NO RECOURSE AGAINST OTHERS.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Securityholder, by accepting
a Security,
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waives and releases all such liability. Such waivers and releases are part of
the consideration for the issuance of the Securities.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The definitive Securities of each series shall be in substantially
such form or forms established as shall be established pursuant to Section 301,
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as the Company may deem appropriate and as are not contrary to the
provisions of this Indenture, or as may be required to comply with the rules of
any securities exchange or of any automated quotation or book-entry system, or
to conform to usage, all as may be determined by the officers executing such
Securities, as evidenced by their execution of the Securities.
The Securities of each series shall be issuable in registered form
without coupons. The definitive Securities shall be produced in such manner as
shall be determined by the officers executing such Securities, as evidenced by
their execution thereof.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in substantially
the form set forth below:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
_______________________________
as Trustee
By: ___________________________
Authorized Signatory
Dated: _______________________
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ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more series.
There shall be established in or pursuant to a Board Resolution, and set forth
in an Officer's Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Sections 304, 305, 306, 906 or 1107);
(3) whether any Securities of the series, or any Tranche thereof, are
to be issuable in global form with or without coupons and, if so, (i)
whether beneficial owners of interests in any such Global Security may
exchange such interests for Securities of such series and Tranche and of
like tenor of any authorized form and denomination and the circumstances
under which any such exchanges may occur, if other than in the manner
provided in Section 305, and (ii) the name of the Depository with respect
to any Global Security;
(4) the date or dates on which the principal of the Securities of the
series, or any Tranche thereof, is payable;
(5) the rate or rates at which the Securities of the series, or any
Tranche thereof, shall bear interest, if any (including the rate or rates
at which overdue principal shall bear interest, if different from the rate
or rates at which such Securities shall bear interest prior to Maturity,
and, if applicable, the rate or rates at which overdue premium or interest
shall bear interest, if any), or any formulary or other method or other
means by which any such rate or rates shall be determined, by reference to
an index or other fact or event ascertainable outside this Indenture or
otherwise; the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest shall be payable and the
Regular Record Date for
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the interest payable on any Interest Payment Date or any formulary or other
method or other means by which such date or dates shall be determined, by
reference to an index or other fact or event ascertainable outside of this
Indenture or otherwise (without regard to any provisions for redemption,
prepayment, acceleration, purchase or extension and, if applicable to such
series of Securities, or any Tranche thereof, the basis points and United
States Treasury rate(s) and any other rates to be used in calculating the
reset rate;
(6) the place or places where the principal of (and premium, if any)
and interest, if any (if such interest is not to be paid as specified in
Section 307), on Securities of the series, or any Tranche thereof, shall be
payable;
(7) the right of the Company, if any, to defer any payment of
principal of or interest on the Securities of the series, or any Tranche
thereof, and the maximum length of any such deferral period;
(8) the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series, or any
Tranche thereof, may be redeemed, in whole or in part, at the option of the
Company, pursuant to any sinking fund or otherwise;
(9) the obligation, if any, of the Company to redeem or purchase
Securities of the series, or any Tranche thereof, pursuant to any sinking
fund or analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the terms
and conditions upon which Securities of the series, or any Tranche thereof,
shall be redeemed or purchased, in whole or in part, pursuant to such
obligation, and, where applicable, the obligation of the Company to select
the Securities to be redeemed;
(10) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series, or any
Tranche thereof, shall be issuable;
(11) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series, or any Tranche thereof, which
shall be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502;
(12) additional Events of Default with respect to Securities of the
series, or any Tranche thereof, if any, other than those set forth herein;
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(13) if either or both of Section 1302 and Section 1303 shall be
inapplicable to the Securities of the series, or any Tranche thereof,
(provided that if no such inapplicability shall be specified, then both
Section 1302 and Section 1303 shall be applicable to the Securities of the
series, or any Tranche thereof);
(14) if other than U.S. dollars, the currency or currencies or units
based on or related to currencies in which the Securities of such series,
or any Tranche thereof, shall be denominated and in which payments or
principal of, and any premium and interest on, such Securities shall or may
by payable;
(15) additional covenants with respect to Securities of the series, or
any Tranche thereof, if any, other than those set forth herein;
(16) if other than the Trustee, the identity of the Registrar and any
Paying Agent;
(17) any exceptions to Section 113 or in the definition of "Business
Day" with respect to Securities of the series, or any Tranche thereof; and
(18) any other terms of the Securities of the series, or any Tranche
thereof (which terms shall not be inconsistent with the provisions of this
Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such Board Resolution and set forth in such Officer's Certificate or in any
such indenture supplemental hereto.
With respect to Securities of a series subject to a Periodic Offering,
the indenture supplemental hereto or the Board Resolution which establishes such
series, or the Officer's Certificate pursuant to such Board Resolution, may
provide general terms or parameters for Securities of such series and provide
either that the specific terms of Securities of such series, or any Tranche
thereof, shall be specified in a Company Order or that such terms shall be
determined by the Company or its agents in accordance with procedures specified
in a Company Order as contemplated by Section 303.
Anything herein to the contrary notwithstanding, the Trustee shall be
under no obligation to authenticate and deliver Securities of any series the
terms of which, established as contemplated by this Section, would affect the
rights, duties, obligations, liabilities or immunities of the Trustee under this
Indenture.
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SECTION 302. DENOMINATIONS.
The Securities shall be issuable in registered form without coupons in
such denominations as shall be specified as contemplated by Section 301. In the
absence of any such provisions with respect to the Securities of any series, or
any Tranche thereof, the Securities of such series or Tranche shall be issuable
in denominations of $1,000 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President or one of
its Vice Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile. The seal of the Company
may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Securities. Typographical and other
minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any Security that
has been duly authenticated and delivered by the Trustee.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the original execution and
delivery of this Indenture, the Company may deliver Securities of any series,
executed by the Company, to the Trustee for authentication. Except as otherwise
provided in this Article Three, the Trustee shall thereupon authenticate and
make available for delivery, or cause to be authenticated and delivered, said
Securities to or upon a Company Order, without any further action by the Issuer;
PROVIDED, HOWEVER, that the Trustee shall authenticate and make available for
delivery Securities of such series for original issue from time to time in the
aggregate principal amount established for such series pursuant to such
procedures, acceptable to the Trustee and to such recipients, as may be
specified from time to time by a Company Order. The Stated Maturity, original
issue dates, interest rates and any other terms of the Securities of such
series, or any Tranche thereof, shall be determined by or pursuant to such
Company Order and procedures. If provided for in such procedures, such Company
Order may authorize authentication and delivery pursuant to oral instructions
from the Company or its duly authorized agent, which instructions shall be
promptly confirmed in writing.
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In authenticating the Securities of such series and accepting the
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, prior to the initial authentication of
the Securities of such series, and (subject to Section 601) shall be fully
protected in relying upon:
(1) a Board Resolution relating thereto certified by the Secretary or
Assistant Secretary of the Company;
(2) an Officer's Certificate or an executed supplemental indenture
setting forth the terms of such Securities as provided in Section 301;
(3) an Officer's Certificate which shall state that all conditions
precedent provided for in this Indenture relating to the issuance of such
Securities have been complied with, that no Event of Default with respect
to any series of Securities, or any Tranche thereof, has occurred and is
continuing and that the issuance of such Securities does not constitute and
will not result in (i) any Event of Default or any event or condition,
which, upon the giving of notice or the lapse of time or both, would become
an Event of Default or (ii) any default under the provisions of any other
instrument or agreement by which the Company is bound; and
(4) an Opinion of Counsel, which shall state:
(a) that the form or forms of such Securities have been duly
authorized by the Company and have been established in conformity with the
provisions of this Indenture;
(b) that the term or terms of such Securities have been duly
authorized by the Company and have been established in conformity with the
provisions of this Indenture;
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, except to the extent enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium and other
similar laws affecting the enforcement of creditors' rights generally and
by the effect of general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law); and
(d) that no consent, approval, authorization, order, registration or
qualification of or with any court or any
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governmental agency or body having jurisdiction over the Company is
required for the execution and delivery of such Securities by the
Company, except such as have been obtained (except that no opinion
need be expressed as to state securities or Blue Sky laws).
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture in a manner that in the
written opinion of counsel to the Trustee (which counsel may be an employee
of the Trustee) such authentication may not lawfully be made or would involve
the Trustee in personal liability.
Notwithstanding the provisions of Section 301 and of the
immediately preceding paragraph, with respect to Securities of a series
subject to a Periodic Offering, the Trustee shall be entitled to receive the
Officer's Certificate otherwise required pursuant to Section 303(3) and the
Opinion of Counsel required by Section 303(4) only once at or prior to the
time of the first authentication and delivery of such Securities (provided
that such Opinion of Counsel addresses the authentication and delivery of all
such Securities) and that, in lieu of the opinions described in clauses (b)
and (c) above, Counsel may opine that:
(x) when the terms of such Securities shall have been
established pursuant to a Company Order or Orders or pursuant to such
procedures as may be specified from time to time by a Company Order or
Orders, all as contemplated by and in accordance with the instrument
or instruments delivered pursuant to clause (a) above, such terms will
have been duly authorized by the Company and will have been
established in conformity with the provisions of this Indenture; and
(y) when such Securities shall have been authenticated and
delivered by the Trustee in accordance with this Indenture and the
Company Order or Orders or the specified procedures referred to in
paragraph (x) above and issued and delivered by the Company in the
manner and subject to any conditions specified in such Opinion of
Counsel, such Securities will constitute valid obligations of the
Company enforceable in accordance with their terms except to the
extent enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws
affecting the enforcement of creditors rights generally and by the
effect of general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law).
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With respect to Securities of a series subject to a Periodic
Offering, the Trustee may conclusively rely, as to the authorization by the
Company of any of such Securities, the forms and terms thereof, the validity
thereof and the compliance of the authentication and delivery thereof with
the terms and conditions of this Indenture, upon the Opinion or Opinions of
Counsel, the Officer's Certificate and the certificates and other documents
delivered pursuant to this Section 303 at or prior to the time of the first
authentication and delivery of Securities of such series until any of such
opinions, certificates or other documents have been superseded or revoked or
expire by their terms; PROVIDED, HOWEVER, that any request by the Company to
the Trustee to authenticate and deliver Securities of such series shall
constitute a representation and warranty by the Company that as of the date
of such request the statements made in the most recent Officer's Certificate
delivered pursuant to Section 303(3) are true and correct as if made on and
as of the date thereof.
If the Company shall establish pursuant to Section 301 that the
Securities of a series, or any Tranche thereof, are to be issued in the form
of one or more Global Securities, then the Company shall execute and the
Trustee shall, in accordance with this Section and the Company Order with
respect to the authentication and delivery of such series or Tranche,
authenticate and deliver one or more Global Securities that (i) shall be in
an aggregate amount equal to the aggregate principal amount specified in such
Company Order, (ii) shall be registered in the name of the Depository
therefor or its nominee, and (iii) shall be made available for delivery by
the Trustee to such Depository or pursuant to such Depository's instruction.
Each Depository designated pursuant to Section 301 must, at the
time of its designation and at all times while it serves as Depository, be a
clearing agency registered under the Exchange Act and any other applicable
statute or regulation.
Unless otherwise provided for in the form of Security, each
Security shall be dated the date of its authentication and except that any
substitute Security under Section 306 shall be dated so that neither gain nor
loss in interest shall result from any mutilation, destruction, loss or theft
of the relevant Predecessor Security.
No Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided
for herein executed by the Trustee by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that
such Security has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture.
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SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, or
any Tranche thereof, the Company may execute, and upon Company Order the
Trustee shall authenticate and make available for delivery, temporary
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
In the case of Securities of any series, or any Tranche thereof,
such temporary Securities may be in global form, representing all or a
portion of the Outstanding Securities of such series or Tranche.
Except in the case of temporary Securities in global form (which
shall be exchanged in accordance with the provisions of Section 305), if
temporary Securities of any series, or any Tranche thereof, are issued, the
Company will cause definitive Securities of that series or Tranche thereof to
be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, or any Tranche thereof, the temporary Securities
of such series or Tranche shall be exchangeable for definitive Securities of
such series or Tranche thereof upon surrender of the temporary Securities of
such series or Tranche thereof at the office or agency of the Company in a
Place of Payment for that series or Tranche without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of
any series, or any Tranche thereof, the Company shall execute and the Trustee
shall authenticate and make available for delivery in exchange therefor a
like principal amount of definitive Securities of the same series, or Tranche
thereof, of authorized denominations and of like tenor. Until so exchanged,
the temporary Securities of any series, or any Tranche thereof, shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities of such series, or any Tranche thereof.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any
other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "SECURITY REGISTER") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities of each series, or Tranche
thereof, and of registration of transfers of Securities of each series, or
Tranche thereof. The Trustee is hereby
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appointed "SECURITY REGISTRAR" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series or any Tranche thereof, at the office or agency of the Company in the
Place of Payment for that series or Tranche thereof, the Company shall
execute, and the Trustee shall authenticate and make available for delivery,
in the name of the designated transferee or transferees, one or more new
Securities of the same series and Tranche, of any authorized denominations
and of a like aggregate principal amount and Stated Maturity.
At the option of the Holder, Securities of any series or any
Tranche thereof, may be exchanged for other Securities of the same series and
Tranche, of any authorized denominations and of a like aggregate principal
amount and Stated Maturity, upon surrender of the Securities to be exchanged
at such office or agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
make available for delivery, the Securities which the Holder making the
exchange is entitled to receive.
The provisions of Clauses (1), (2), (3) and (4) below shall apply
only to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depository designated for such Global
Security or a nominee thereof and delivered to such Depository or a nominee
thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be registered,
in the name of any Person other than the Depository for such Global
Security or a nominee thereof unless (A) such Depository (i) has notified
the Company that it is unwilling or unable to continue as Depository for
such Global Security or (ii) has ceased to be a clearing agency registered
under the Exchange Act, (B) there shall have occurred and be continuing an
Event of Default with respect to such Global Security or (c) there shall
exist such circumstances, if any, in addition to or in lieu of the
foregoing as have been specified for this purpose as contemplated by
Section 301.
(3) Subject to Clause (2) above, any exchange of a Global Security
for other Securities may be made in whole or in part, and all Securities
issued in exchange for a Global Security or any portion thereof shall be
registered in such names as the Depository for such Global Security shall
direct.
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(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 304, 306, 906 or
1107 or otherwise, shall be authenticated and delivered in the form of, and
shall be, a Global Security, unless such Security is registered in the name
of a Person other than the Depository for such Global Security or a nominee
thereof.
All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee)
be duly endorsed, or be accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed, by
the Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided in the Securities to be transferred or
exchanged, no service charge shall be made for any registration of transfer
or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities,
other than exchanges pursuant to Section 304, 906 or 1107 not involving any
transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series, or any Tranche thereof,
during a period beginning at the opening of business 15 days before the day
of the mailing of a notice of redemption of Securities of that series or
Tranche selected for redemption under Section 1103 and ending at the close of
business on the day of such mailing, or (ii) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and make available
for delivery in exchange therefor a new Security of the same series and
Tranche, and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to
save each of them and any agent of
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either of them harmless, then, in the absence of notice to the Company or the
Trustee that such Security has been acquired by a bona fide purchaser, the
Company shall execute and upon its request the Trustee shall authenticate and
make available for delivery, in lieu of any such destroyed, lost or
stolen Security, a new Security of the same series and Tranche, and of like
tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or Tranche thereof, interest on any
Security which is payable, and is punctually paid or duly provided for, on
any Interest Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest at the office or
agency of any Paying Agent therefor; provided however, that unless otherwise
specified as contemplated by Section 301 with respect to the Securities of
any series, or any Tranche thereof, interest on any Security shall be paid by
check mailed to the address of the Person entitled thereto as such address
appears on the Security Register.
Any interest on any Security of any series, or Tranche thereof,
which is payable, but is not punctually paid or duly provided for, on any
Interest Payment Date (herein called "DEFAULTED INTEREST") shall forthwith
cease to be payable to the Holder on the relevant Regular Record Date by
virtue of having been such Holder, and such Defaulted Interest may be paid by
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the Company, at its election in each case, as provided in Clause (1) or (2)
below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities of such series or Tranche
thereof (or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series or any Tranche
thereof 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 Section 307 provided. Thereupon the Trustee shall fix
a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the date
of the proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Securities of such series or
any Tranche thereof at his address as it appears in the Security Register,
not less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Securities of such series or any Tranche
thereof (or their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer be
payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series, or any Tranche thereof, in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which such Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this Section 307, such manner
of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of
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transfer of or in exchange for or in lieu of any other Security shall carry
the rights to interest accrued and unpaid, and to accrue, which were carried
by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Security is registered as the
owner of such Security for the purpose of receiving payment of principal of
(and premium, if any) and (subject to Section 307) interest, if any, on such
Security and for all other purposes whatsoever, whether or not such Security
be overdue, and neither the Company, the Trustee nor any agent of the Company
or the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee or any agent of the Company or the
Trustee shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interest of a Security in global form, or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interest.
Notwithstanding the foregoing, with respect to any Security in global form,
nothing herein shall prevent the Company or the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification, proxy
or other authorization furnished by any Depository (or its nominee), as a
Holder, with respect to such Security in global form or impair, as between
such Depository and owners of beneficial interests in such Security in global
form, the operation of customary practices governing the exercise of the
right of such Depository (or its nominee) as holder of such Security in
global form.
SECTION 309. CANCELLATION.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by
the Trustee. No Securities shall be authenticated in lieu of or in exchange
for any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities shall be held by the
Trustee and shall be returned to the Company upon written request.
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SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, or any Tranche thereof, interest, if any, on the
Securities of each series shall be computed on the basis of a 360 day year
consisting of twelve 30-day months and, with respect to any period less than
a full calendar month, on the basis of the actual number of days elapsed
during such period in relation to the deemed 30 days of such month.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall cease to be of further effect (except as to
any surviving rights of registration of transfer or exchange of Securities
herein expressly provided for or in the form of Security for such series or
Tranche), when the Trustee, upon Company Request and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 306 and (ii) Securities for
whose payment money or U.S. Government Obligations has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as provided
in Section 1008) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited with
the Trustee as trust funds in trust for the purpose (a) money in the
necessary amount or (b) U.S. Government
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Obligations, the principal of and the interest on which when due, and without
any regard to reinvestment thereof, in the opinion of an independent
accountant, and, in the opinion of the officers of the Company executing an
Officer's Certificate to that effect, will provide moneys which, together
with the moneys, if any, deposited with or held by the Trustee, shall be
sufficient to pay when due the principal of, premium, if any, and interest
due and to become due on said Securities or portions thereof on the
Redemption Date or the Stated Maturity thereof, as the case may be, in trust
to pay and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for principal (and
premium, if any) and interest, if any, to the date of such deposit (in the
case of Securities which have become due and payable) or the Stated Maturity
or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for herein relating to the satisfaction and discharge of
this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 607, the
obligations of the Company to any Authenticating Agent under Section 614 and,
if money or U.S. Government Obligations shall have been deposited with the
Trustee pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of
Section 1008 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1008,
all money or U.S. Government Obligations deposited with the Trustee pursuant
to Section 401 shall be held in trust and applied by it, in accordance with
the provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto,
of the principal (and premium, if any) and interest, if any, for whose
payment such money or U.S. Government Obligations has been deposited with or
received by the Trustee.
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ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"EVENT OF DEFAULT," wherever used herein with respect to the
Securities of any series means any one of the following events:
(1) failure to pay interest on any Security of that series when
such interest becomes due and payable and such failure continues for a period
of 30 days and the time for payment of such interest has not been extended;
provided, however that if the Company is permitted by the terms of the
Securities of the applicable series to defer the payment in question, the
date on which such payment is due and payable shall be the date on which the
Company is required to make payment following such deferral, if such deferral
has been elected pursuant to the terms of the Securities of that series; or
(2) failure to pay principal of (or premium, if any, on) any
Security of that series when the same becomes due and payable at Maturity
(including redemptions under Article Eleven but excluding any failure by the
Company to deposit money with the Trustee in connection with any redemption
at the option of the Company) and the time for payment of such principal (or
premium, if any), has not been extended; provided, however, that if the
Company is permitted by the terms of the Securities of the applicable series
to defer the payment in question, the date on which such payment is due and
payable shall be the date on which the Company is required to make payment
following such deferral, if such deferral has been elected pursuant to the
terms of the Securities of that series; or
(3) the Company fails to observe or perform any of its other
covenants, warranties or agreements in the Securities of that series or in
this Indenture (other than a covenant, agreement or warranty a default in
whose performance or whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this Indenture solely for
the benefit of series of Securities other than that series), and the failure
to observe or perform continues for the period and after the notice specified
in the last paragraph of this Section; or
(4) the Company pursuant to or within the meaning of any
Bankruptcy Law (A) commences a voluntary case or proceeding under any
Bankruptcy Law with respect to itself, (B) consents to the entry of a
judgment, decree or order for relief against it in an involuntary case or
proceeding under any Bankruptcy Law, (c) consents to or acquiesces in the
institution of bankruptcy or insolvency proceedings against it, (D) applies
for, consents to or acquiesces in the appointment of or taking possession by
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a Custodian of the Company or for any material part of its property, (E)
makes a general assignment for the benefit of its creditors, (F) admits in
writing its inability to pay its debts generally as they become due, or (G)
takes any corporate action in furtherance of or to facilitate, conditionally
or otherwise, any of the foregoing; or
(5) (i) a court of competent jurisdiction enters a judgment,
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any Bankruptcy Law which shall (A) approve as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition in respect of the Company, (B) appoint a Custodian of the Company
or for any material part of its property or (c) order the winding-up or
liquidation of its affairs, and such judgment, decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or (ii) any
bankruptcy or insolvency petition or application is filed, or any bankruptcy
or insolvency proceeding is commenced against the Company and such petition,
application or proceeding is not dismissed within 60 days; or (iii) a warrant
of attachment is issued against any material portion of the property of the
Company which is not released within 60 days of service; or
(6) failure to pay any installment of interest, when the same
shall become due and payable, on any other series of Securities issued or
hereafter issued pursuant to this Indenture and such failure shall continue
for a period of thirty days, or failure to pay the principal of (or premium,
if any, on) any such other series of Securities when the same shall become
due and payable at Maturity (including upon redemption but excluding any
failure by the Company to deposit money with the Trustee in connection with
any redemption at the option of the Company), and the time for payment of
such interest or principal (or premium, if any) shall not have been extended;
provided, however, that if the Company is permitted by the terms of the
Securities of the applicable series to defer the payment in question, the
date on which such payment is due shall be the date on which the Company is
required to make payment following such deferral, if such deferral has been
elected pursuant to the terms of the Securities of that series; or
(7) any other Event of Default provided with respect to Securities
of that series as contemplated by Section 301.
A Default under clause (3) above is not an Event of Default until
the Trustee or the Holders of at least 25% in aggregate principal amount of
the Outstanding Securities of that series notify the Company in writing of
the Default and the Company does not cure the Default within 60 days after
receipt of the notice. The notice must specify the Default, demand that it
be remedied and state that the notice is a "Notice of Default". When a
Default under clause (3) above is cured within such 60-day period, it ceases.
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SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Securities of any series,
(other than an Event of Default specified in clause (4) or (5) of Section
501) occurs and is continuing, the Trustee by notice in writing to the
Company, or the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of the affected series by notice in writing to the
Company and the Trustee, may declare the unpaid principal of and accrued
interest, if any, to the date of acceleration (or, if the Securities of that
series, or any Tranche thereof, are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of that
series) on all the Outstanding Securities of that series, to be due and
payable immediately and, upon any such declaration, the Outstanding
Securities of that series (or specified principal amount) shall become and be
immediately due and payable.
If an Event of Default specified in clause (4) or (5) of Section
501 occurs, all unpaid principal of and accrued interest, if any, on the
Outstanding Securities of all series (or specified principal amount) shall
ipso facto become and be immediately due and payable without any declaration
or other act on the part of the Trustee or any Holder.
The Holders of a majority in principal amount of the Outstanding
Securities of the affected series by notice to the Trustee may rescind an
acceleration and its consequences if (i) all existing Events of Default,
other than the nonpayment of the principal and interest of the Securities of
that series that has become due solely by such declaration of acceleration,
have been cured or waived, (ii) to the extent the payment of such interest is
lawful, interest on overdue installments of interest and overdue principal
that has become due otherwise than by such declaration of acceleration have
been paid, (iii) the rescission would not conflict with any judgment or
decree of a court of competent jurisdiction and (iv) all payments due to the
Trustee and any predecessor Trustee under Section 607 have been made.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if:
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof, the Company will,
upon demand of the Trustee, pay to it, for the benefit of the Holders of such
Securities, the whole amount then
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due and payable on such Securities for principal (and premium, if any) and
interest, if any, and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal (and premium, if any)
and on any overdue interest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the reasonable costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other
obligor upon such Securities, wherever situated.
If an Event of Default with respect to any Securities occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders thereof by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce
any such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power granted
herein, or to secure any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other obligor
upon the Securities or the property of the Company or of such other obligor
or their creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(i) to file and prove a claim for the whole amount of principal
(and premium, if any) and interest, if any, owing and unpaid in respect of
the Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agent and counsel) and of
the Holders allowed in such judicial proceedings, and
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(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under
Section 607.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article in
respect of the Securities of any series shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or premium, if any) or
interest, if any, upon presentation of the Securities in respect of which
moneys have been collected and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section
607 applicable to such series;
Second: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest, if any, on the Securities in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts
due and payable
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on such Securities of such series for principal (and premium, if any) and
interest, if any, respectively; and
Third: To the Company.
The Trustee may fix a record date and payment date for any payment
to Holders pursuant to this Section 506. At least fifteen (15) days before
such record date, the Trustee shall mail to each Holder and the Company a
notice that states the record date, the payment date and the amount to be
paid.
SECTION 507. LIMITATION ON SUITS.
No Holder of any series of Securities shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of the affected series shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of the affected series; it
being understood and intended that no one or more of Holders of Securities of
any affected series shall have any right in any manner whatever by virtue of,
or by availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other of such Holders, or to obtain or to seek to
obtain priority or preference over any other of such Holders or to enforce
any right under this Indenture, except in the manner herein provided and for
the equal and ratable benefit of all Holders of Securities of the affected
series.
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SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM
AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder
of any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest, if any, on such Security on the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding has been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to exercise
any right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the
case may be.
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SECTION 512. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the Outstanding
Securities of any affected series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with respect
to the Securities of such series, provided that:
(1) such direction shall not be in conflict with any rule of law or
with this Indenture;
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; and
(3) subject to Section 601, the Trustee need not take any action
which might involve the Trustee in personal liability or be unduly prejudicial
to the Holders not joining therein.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any affected series may by written notice to the
Trustee on behalf of the Holders of all the Securities of such series waive any
Default or Event of Default with respect to such series and its consequences,
except a Default or Event of Default
(1) in respect of the payment of the principal of (or premium, if
any) or interest, if any, on any Security of such series, or
(2) in respect of a covenant or other provision hereof which under
Article Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such Default or Event of Default shall cease to
exist and shall be deemed to have been cured, for every purpose of this
Indenture and the Securities of such series; but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and
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that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit
instituted by the Company, to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the Outstanding Securities, or to any suit
instituted by any Holder for the enforcement of the payment of the principal
of (or premium, if any) or interest, if any, on any Security on or after the
Stated Maturity or Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES OF THE TRUSTEE.
The Trustee hereby accepts the Trusts herein created. The Trustee
further undertakes and agrees, as follows:
(a) Except during the continuance of an Event of Default, the
Trustee's duties and responsibilities under this Indenture shall be governed by
Section 315(a) of the Trust Indenture Act.
(b) In case an Event of Default has occurred and is continuing, and
is known to the Trustee, the Trustee shall exercise the rights and powers vested
in it by this Indenture, and shall use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs.
(c) None of the provisions of Section 315(d) of the Trust Indenture
Act shall be excluded from this Indenture.
SECTION 602. NOTICE OF DEFAULTS.
Within 30 days after the occurrence of any Default or Event of Default
with respect to any Securities of any series, the Trustee shall give to all
Holders of Securities of that series, as their names and addresses appear in the
Security Register, notice of such Default or Event of Default known to the
Trustee, unless such Default or Event of Default shall have been cured or
waived; provided, however, that, except in the case of a Default or Event of
Default in the payment of the principal of (or premium, if any) or interest, if
any, on any Security or in the payment of any sinking fund installment with
respect to Securities, the Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive
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committee or directors or Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interest of the
Holders of the affected Securities.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of the Trust Indenture Act:
(a) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel of its selection and the
written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity to its reasonable satisfaction
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) prior to the occurrence of an Event of Default with respect to
the Securities of any series and after the curing or waiving of all such Events
of Default which may have occurred, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, approval or other paper or document, or the books and records of the
Company, unless requested in writing to do so by the Holders of a majority in
principal amount of the Outstanding Securities of any series; provided, however,
that if the payment within a reasonable time to the Trustee of
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the costs, expenses or liabilities likely to be incurred by it in the making
of such investigation is not, in the opinion of the Trustee, reasonably
assured to the Trustee by the security afforded to it by the terms 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 investigation shall be paid by the Company or, if paid
by the Trustee, shall be repaid by the Company upon demand;
(g) the trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents or attorneys and the Trustee shall not
be responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder; and
(h) the Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of its rights or powers.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee or any Authenticating Agent assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder (including amounts held
by the Trustee as Paying Agent) need not be segregated from other funds except
to the extent required by law. The Trustee shall be under no liability for
interest on any money
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received by it hereunder except as otherwise agreed upon in writing with the
Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time such compensation
for all services rendered by it hereunder as the parties shall agree
from time to time (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability, damage, claim or expense, including taxes (other than
taxes based upon or determined or measured by the income of the Trustee),
incurred without gross negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(4) or Section 501(5), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section 607 shall survive the discharge of this
Indenture.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
The Trustee shall be disqualified only where such disqualification is
required by Section 310(b) of the Trust Indenture Act. Nothing shall prevent
the Trustee from filing with the Commission the application referred to in the
second to last paragraph of Section 310(b) of the Trust Indenture Act.
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SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under Section 310(a)(1) of the Trust Indenture Act
having a combined capital and surplus of at least $50,000,000 subject to
supervision or examination by federal or State authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. Neither the Company nor any Person directly
or indirectly controlling, controlled by, or under common control with the
Company may serve as Trustee. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of the Trust
Indenture Act after written request therefor by the Company or by any
Holder who has been a BONA FIDE Holder of a Security for at least six
months; or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by
any such Holder of a Security
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who has been a BONA FIDE Holder of a Security for at least six months; or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 315(e) of the
Trust Indenture Act, any Holder who has been a bona fide Holder of a Security
for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee with respect to all Securities and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
611, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company with
respect to such Securities. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company or the
Holders and accepted appointment in the manner required by Section 611, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by mailing written notice
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of such event by first-class mail, postage prepaid, to all Holders of
Securities of such series as their names and addresses appear in the Security
Register. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate
Trust Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers,
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trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, 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 the Trust Indenture Act.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent indicated therein.
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
At any time when any of the Securities remain Outstanding the Trustee
may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities, or any Tranche thereof, which shall be authorized to act on
behalf of, and subject to the direction of, the Trustee to authenticate
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Securities of such series or Tranche issued upon exchange, registration of
transfer or partial redemption thereof or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized
and doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by federal or State
authority. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series, or Tranche thereof, with respect to which such
Authenticating Agent will serve, as their names and addresses appear in the
Security Register. Any successor
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Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder,
with like effect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series or any Tranche
thereof, is made pursuant to this Section, the Securities of such series or
Tranche may have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
Form of Authenticating Agent's
CERTIFICATE OF AUTHENTICATION
Dated:_________________
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
_______________________________
AS TRUSTEE
By_____________________________
AS AUTHENTICATING AGENT
_______________________________
AUTHORIZED SIGNATORY
If all of the Securities of a series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested by the Company in writing (which writing
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel), shall appoint, in accordance with this Section and in accordance with
such procedures as shall be acceptable to the Trustee, an Authenticating Agent
having an office in a Place of Payment designated by the Company with respect to
such series of Securities.
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than January 15 and July 15 in each
year, a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders as of the preceding December 15 or June 15, as the
case may be; and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
PROVIDED, HOWEVER, that so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as "applicants")
apply in writing to the Trustee, and furnish to the Trustee reasonable proof
that each such applicant has owned a Security for a period of at least six
months preceding the date of such application, and such application states that
the applicants desire to communicate with other Holders with respect to their
rights under this Indenture or under the Securities and is accompanied by a copy
of the form of proxy or other communication which such applicants propose to
transmit, then the Trustee shall, within five Business Days after the receipt of
such application, at its election, either
(i) afford such applicants access to the information preserved
at the time by the Trustee in accordance with Section 702(a); or
(ii) inform such applicants as to the approximate number of
Holders whose names and addresses appear in the information preserved at
the time by the Trustee in accordance with Section 702(a), and as to the
approximate
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cost of mailing to such Holders the form of proxy or other communication,
if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder whose name and address appears in the
information preserved at the time by the Trustee in accordance with Section
702(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
interest of the Holders or would be in violation of applicable law. Such
written statement shall specify the basis of such opinion. If the Commission,
after opportunity for a hearing upon the objections specified in the written
statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for hearing,
that all objections so sustained have been met and shall enter an order so
declaring, the Trustee shall mail copies of such material to all such Holders
with reasonable promptness after the entry of such order and the renewal of such
tender; otherwise the Trustee shall be relieved of any obligation or duty to
such applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with Section 702(b), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 702(b).
SECTION 703. REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year commencing with the year
1999, the Trustee shall transmit by mail to all Holders of Securities as
provided in Section 313(c) of the Trust Indenture Act, a brief report dated as
of May 15, if required by and in compliance with Section 313(a) of the Trust
Indenture Act.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the
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Commission and with the Company. The Company will notify the Trustee when any
Securities are listed on any stock exchange.
SECTION 704. REPORTS BY COMPANY.
The Company shall:
(1) file with the Trustee, within 30 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the Exchange
Act; or, if the Company is not required to file information, documents or
reports pursuant to either of said Sections, then it shall file with the
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary
and periodic information, documents and reports which may be required
pursuant to Section 13 of the Exchange Act in respect of a security listed
and registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations;
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, (a) concurrently with furnishing the same
to its stockholders, the Company's annual report to stockholders,
containing certified financial statements, and any other financial reports
which the Company generally furnishes to its stockholders, and (b) within
30 days after the filing thereof with the Trustee, such summaries of any
other information, documents and reports required to be filed by the
Company pursuant to paragraphs (1) and (2) of this Section as may be
required by rules and regulations prescribed from time to time by the
Commission; and
(4) furnish to the Trustee, on or before May 1 of each year, a brief
certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of the
Company's compliance with all conditions and covenants under this
Indenture. For purposes of this paragraph, such compliance shall be
determined without regard to any period of grace or
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requirement of notice provided under this Indenture. Such certificate
need not comply with Section 102.
ARTICLE EIGHT
CONSOLIDATION, MERGER, LEASE, SALE OR TRANSFER
SECTION 801. WHEN COMPANY MAY MERGE, ETC.
The Company shall not consolidate with, or merge with or into any
other corporation (whether or not the Company shall be the surviving
corporation), or sell, assign, transfer or lease all or substantially all of its
properties and assets as an entirety or substantially as an entirety to any
Person or group of affiliated Persons, in one transaction or a series of related
transactions, unless:
(1) either the Company shall be the continuing Person or the Person
(if other than the Company) formed by such consolidation or with which or
into which the Company is merged or the Person (or group of affiliated
Persons) to which all or substantially all the properties and assets of the
Company as an entirety or substantially as an entirety are sold, assigned,
transferred or leased shall be a corporation (or constitute corporations)
organized and existing under the laws of the United States of America or
any State thereof or the District of Columbia and shall expressly assume,
by an indenture supplemental hereto, executed and delivered to the Trustee,
in form satisfactory to the Trustee, all the obligations of the Company
under the Securities and this Indenture; and
(2) immediately before and after giving effect to such transaction or
series of related transactions, no Event of Default, and no Default, shall
have occurred and be continuing.
SECTION 802. OPINION OF COUNSEL.
The Company shall deliver to the Trustee prior to the proposed
transaction(s) covered by Section 801 an Officer's Certificate and an Opinion of
Counsel stating that the transaction(s) and such supplemental indenture comply
with this Indenture and that all conditions precedent to the consummation of the
transaction(s) under this Indenture have been met.
SECTION 803. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation by the Company with or merger by the Company
into any other corporation or any lease, sale, assignment, or transfer of all or
substantially all of the property and assets of the Company in accordance with
Section 801, the successor corporation formed by such
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consolidation or into which the Company is merged or the successor corporation
or affiliated group of corporations to which such lease, sale, assignment, or
transfer is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same
effect as if such successor corporation or corporations had been named as the
Company herein, and thereafter, except in the case of a lease, the predecessor
corporation or corporations shall be relieved of all obligations and covenants
under this Indenture and the Securities and in the event of such conveyance or
transfer, except in the case of a lease, any such predecessor corporation may
be dissolved and liquidated.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without notice to or the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or one or more specified series of Securities or one or more
specified Tranches thereof (and if such covenants are to be for the benefit
of fewer than all series of Securities or fewer than all Securities of a
Series, stating that such covenants are expressly being included solely for
the benefit of such series or one or more Tranches of such series) or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default with respect to all or
one or more series of Securities; or
(4) to add or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination
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shall become effective only when there is no Security Outstanding of any
series created prior to the execution of such supplemental indenture which
is entitled to the benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611(b); or
(9) to cure any ambiguity, defect or inconsistency or to correct or
supplement any provision herein which may be defective or inconsistent with
any other provision herein; or
(10) to make any change to the provisions hereof or to add other
provisions with respect to matters or questions arising under this
Indenture; provided that such changes or additions shall not materially
adversely affect the interests of the Holders of Securities of any series.
Without limiting the generality of the foregoing, if the Trust
Indenture Act as in effect at the date of the original execution and delivery of
this Indenture or at any time thereafter shall be amended and
(x) if any such amendment shall require one or more changes to
any provisions hereof or the inclusion herein of any additional
provisions, or shall by operation of law be deemed to effect such
changes or incorporate such provisions by reference or otherwise this
Indenture shall be deemed to have been amended so as to conform to
such amendment to the Trust Indenture Act, and the Company and the
Trustee may, without the consent of any Holders, enter into an
indenture supplemental hereto to evidence such amendment hereof; or
(y) if any such amendment shall permit one or more changes to,
or the elimination of, any provisions hereof which, at the date of the
original execution and delivery hereof or at any time thereafter, are
required by the Trust Indenture Act to be contained herein or are
contained herein to reflect any provisions of the Trust Indenture Act
as in effect at such date, this Indenture shall be deemed to have been
amended to
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effect such changes or elimination, and the Company and the Trustee
may, without the consent of any Holders, enter into an indenture
supplemental hereto to evidence such amendment hereof.
Upon request of the Company, accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon receipt
by the Trustee of the documents described in (and subject to the last sentence
of) Section 903, the Trustee shall join with the Company in the execution of any
supplemental indenture authorized or permitted by the terms of this Indenture.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
Subject to the provisions of Section 901, with the consent of the
Holders of not less than a majority in aggregate principal amount of the
Securities of all series then Outstanding under this Indenture, considered as
one class, by Act of said Holders delivered to the Company and the Trustee, the
Company and the Trustee may enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture; provided, however, that if
there shall be Securities of more than one series Outstanding hereunder and if a
proposed supplemental indenture shall directly affect the rights of the Holders
of Securities of one or more, but fewer than all, of such series, then the
consent only of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series so directly affected, considered as one
class, shall be required; and provided, further, that if the Securities of any
series shall have been issued in more than one Tranche and if the proposed
supplemental indenture shall directly affect the rights of the Holders of
Securities of one or more, but fewer than all, of such Tranches, then the
consent only of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all Tranches so directly affected, considered as one
class, shall be required; and provided, further, that no such supplemental
indenture shall without the consent of each Holder affected thereby:
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof or extend the time for payment thereof,
or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of acceleration
of the Maturity thereof pursuant to Section 502, or change any Place of
Payment where, or the coin or currency in which, the principal of any
Security or any premium or interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the
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case of redemption, on or after the Redemption Date) or modify the
provisions of the Indenture with respect to the subordination of the
Securities in a manner adverse to any Holder;
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver of compliance with certain provisions of this Indenture or
Defaults or Events of Default hereunder and their consequences provided for
in this Indenture; or
(3) change the redemption provisions (including Article Eleven)
hereof in a manner adverse to such Holder; or
(4) modify any of the provisions of this Section or Section 513,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby;
provided, however, that this clause shall not be deemed to require the
consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section, or the deletion of this
proviso, in accordance with the requirements of Sections 611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provisions of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities or one or more Tranches
thereof, or which modifies the rights of the Holders of Securities of such
series, or any Tranche thereof, with respect to such covenant or other
provision, shall be deemed not to affect the rights under this Indenture of the
Holders of Securities of any other series or Tranche.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
The Trustee shall sign any supplemental indenture authorized pursuant
to this Article, subject to the last sentence of this Section 903. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying upon, an Officer's
Certificate and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized
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or permitted by this Indenture. The Trustee may, but shall not be obligated
to, enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENTS OF SECURITIES.
The Company will duly and punctually pay the principal of (and
premium, if any) and interest, if any, on the Securities of each series in
accordance with the terms of such Securities and this Indenture, and will duly
comply with all the other terms, agreements and conditions contained in, or made
in the Indenture for the benefit of, the Securities of such series or any
Tranche thereof.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain an office or agency in each Place of Payment
where Securities of each series, or any Tranche thereof, may be surrendered for
registration of transfer or
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exchange or for presentation for payment, and where notices and demands to or
upon the Company in respect of such Securities and this Indenture may be
served. The Company will give prompt written notice to the Trustee of the
location, and any change in location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
address of the Trustee as set forth in Section 105 hereof.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series, or any Tranche
thereof, may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
The Company hereby initially designates the office of The Bank of New
York as such office of the Company.
SECTION 1003. CORPORATE EXISTENCE.
Subject to Article 8 hereof, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its corporate
existence.
SECTION 1004. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge, or cause to be paid or discharged,
before the same shall become delinquent, (1) all material taxes, assessments and
governmental charges levied or imposed upon the Company or upon the income,
profits or property of the Company, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a material lien
upon the property of the Company; provided, however, that the Company shall not
be required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
SECTION 1005. COMPLIANCE CERTIFICATES.
(a) The Company shall deliver to the Trustee within 90 days after the
end of each fiscal year of the Company (which fiscal year currently ends on
December 31), an Officer's Certificate stating whether or not the signer
knows of any Default or Event of Default by the Company that occurred prior
to the end of the fiscal year and is then continuing. If the signer does
know of such a Default or Event of Default, the certificate shall describe
each such Default or Event of Default and its status and the specific
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section or sections of this Indenture in connection with which such Default
or Event of Default has occurred. The Company shall also promptly notify
the Trustee in writing should the Company's fiscal year be changed so that
the end thereof is on any date other than the date on which the Company's
fiscal year currently ends. The certificate need not comply with Section
102 hereof.
(b) The Company shall deliver to the Trustee forthwith upon becoming
aware of a Default or Event of Default (but in no event later than 10 days
after the occurrence of each Default or Event of Default that is
continuing), an Officer's Certificate setting forth the details of such
Default or Event of Default and the action that the Company proposes to
take with respect thereto and the specific section or sections of this
Indenture in connection with which such Default or Event of Default has
occurred.
SECTION 1006. COMMISSION REPORTS.
(a) The Company shall file with the Trustee, within 30 days after it
files them with the Commission, copies of the quarterly and annual reports
and of the information, documents, and other reports (or copies of such
portions of any of the foregoing as the Commission may by rules and
regulations prescribe) which the Company is required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act. If the
Company is not subject to the requirement of such Section 13 or 15(d) of
the Exchange Act, the Company shall file with the Trustee, within 30 days
after it would have been required to file such information with the
Commission, financial statements, including any notes thereto and, with
respect to annual reports, an auditors' report by an accounting firm of
established national reputation and a "Management's Discussion and Analysis
of Financial Condition and Results of Operations," both comparable to that
which the Company would have been required to include in such annual
reports, information, documents or other reports if the Company had been
subject to the requirements of such Sections 13 or 15(d) of the Exchange
Act. The Company also shall comply with the other provisions of Section
314(a) of the Trust Indenture Act.
(b) So long as the Securities remain outstanding, the Company shall
cause its annual report to stockholders and any other financial reports
furnished by it to stockholders generally, to be mailed to the Holders at
their addresses appearing in the register of Securities maintained by the
Security Registrar in each case at the time of such mailing or furnishing
to stockholders. If the Company is not required to furnish annual or
quarterly reports to its stockholders pursuant to the Exchange Act, the
Company shall cause its financial statements, including any notes thereto
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and, with respect to annual reports, an auditors' report by an accounting
firm of established national reputation and a "Management's Discussion and
Analysis of Financial Condition and Results of Operations," to be so filed
with the Trustee and mailed to the Holders within 90 days after the end of
each of the Company's fiscal years and within 45 days after the end of each
of the first three quarters of each fiscal year.
(c) The Company shall provide the Trustee with a sufficient number of
copies of all reports and other documents and information that the Company
may be required to deliver to the Holders under this Section 1007.
SECTION 1007. WAIVER OF STAY, EXTENSION OR USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim, and will actively resist any and all efforts to be compelled to take the
benefit or advantage of, any stay or extension law or any usury law or other
law, which would prohibit or forgive the Company from paying all or any portion
of the principal of and/or interest, if any, on the Securities as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) the Company hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
SECTION 1008. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, or any Tranche thereof, it will, on or
before each due date of the principal of (and premium, if any) or interest, if
any, on any of the Securities of that series, or any Tranche thereof, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal (and premium, if any) or interest, if any, so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, or any Tranche thereof, it will, prior to each due date of
the principal of (and premium, if any) or interest, if any, on any Securities of
that series, or any Tranche thereof, deposit with a 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
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Persons entitled to such principal, premium or interest, if any, and (unless
such Paying Agent is the Trustee) the Company will promptly notify the Trustee
of its action or failure to so act.
The Company will cause each Paying Agent for any series of Securities,
or any Tranche thereof (other than the Trustee) to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest, if any, on Securities of that series, or any
Tranche thereof, in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of as
herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series, or any Tranche thereof)
in the making of any payment of principal (and premium, if any) or
interest, if any, on the Securities of that series, or any Tranche thereof;
and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest, if any, on any Security of any series and remaining unclaimed
for two years after such principal (and premium, if any) or interest, if any,
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee of such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each
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Business Day and of general circulation in New York, New York, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Securities of any series, or any Tranche thereof, which are redeemable
before their Stated Maturity shall be redeemable in accordance with their terms
and (except as otherwise specified as contemplated by Section 301 for Securities
of any series, or any Tranche thereof) in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of fewer than all the Securities of any series, or any Tranche
thereof, the Company shall, at least 45 days prior to the Redemption Date fixed
by the Company (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date and of the principal amount of
Securities to be redeemed. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officer's Certificate evidencing compliance with such
restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If fewer than all the Securities of any series, or any Tranche
thereof, are to be redeemed, and if at the time the Company shall have given
notice of redemption to the Trustee in accordance with Section 1102, there shall
not be on file with the Trustee and in effect a Holders' Redemption Agreement,
as hereinafter defined and the particular Securities to be redeemed shall be
selected by the Trustee, from the Outstanding Securities of such series or
Tranche not previously called for redemption, substantially pro rata, by lot or
by any other method as the Trustee considers fair and appropriate and that
complies with the requirements of the principal national securities exchange, if
any, on which such Securities are listed, and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or Tranche or any integral multiple
thereof) of the principal amount of Securities of such series or Tranche of a
denomination larger
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than the minimum authorized denomination for Securities of that series or
Tranche; provided that in case the Securities of such series or Tranche have
different terms and maturities, the Securities to be redeemed shall be
selected by the Company and the Company shall give notice thereof to the
Trustee; provided however, that if, as indicated in an Officer's Certificate,
the Company shall have offered to purchase all or any principal amount of the
Securities then Outstanding of any series, or any Tranche thereof, and fewer
than all of such Securities as to which such offer was made shall have been
tendered to the Company for such purchase, the Trustee, if so directed by
Company Order, shall select for redemption all or any principal amount of such
Securities which have not been so tendered.
If at the time the Company shall have given notice of redemption to
the Trustee in accordance with Section 1102, there shall be on file with the
Trustee and in effect a Holders' Redemption Agreement, as hereinafter defined,
then the Trustee shall select, in accordance with the provisions of said
Holders' Redemption Agreement, the Securities or parts thereof to be redeemed.
For the purposes of this Indenture, the term "Holders' Redemption
Agreement" shall mean an agreement, reasonably satisfactory to the Trustee,
executed as provided in this Section, which provides for the method to be
followed by the Trustee in selecting Securities or parts of Securities for
redemption out of any funds held by the Trustee to be applied to such
redemption. A Holders' Redemption Agreement may be made with respect to a
single series of Securities, or Tranche thereof, in which case it shall be
executed by or on behalf of the Holders of all Outstanding Securities of such
series or Tranche, or it may be made with respect to all Outstanding Securities,
in which case it shall be executed by or on behalf of the Holders of all
Securities Outstanding hereunder.
The Trustee shall promptly notify the Company and the Securities
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of the Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in part,
to the portion of the principal amount of such Securities which has been or is
to be redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities
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to be redeemed, at his address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if fewer than all the Outstanding Securities of any series or
Tranche are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be
redeemed;
(4) that on the Redemption Date the Redemption Price will be come due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon, if any, will cease to accrue on and after said date;
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price;
(6) that the redemption is for a sinking or other fund, if such is
the case;
(7) the CUSIP number, if any, of the Securities to be redeemed; and
(8) unless otherwise provided as to a particular series of Securities
or any Tranche thereof, if at the time of publication or mailing of any
notice of redemption the Company shall not have deposited with the Trustee
or Paying Agent and/or irrevocably directed the Trustee or Paying Agent to
apply, from money held by it available to be used for the redemption of
Securities, an amount in cash sufficient to redeem all of the Securities
called for redemption, including accrued interest, if any, to the
Redemption Date, such notice shall state that it is subject to the receipt
of the redemption moneys by the Trustee or Paying Agent before the
Redemption Date (unless such redemption is mandatory) and such notice shall
be of no effect unless such moneys are so received before such date.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company. Notice of mandatory
redemption of Securities shall be given by the Trustee in the name and at the
expense of the Company.
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SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
Prior to 10:00 a.m., New York Time, on any Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1009) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment
Date) accrued interest, if any, on, all the Securities which are to be
redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, and the Company
having on or before the Redemption Date deposited with the Trustee (and/or
having irrevocably directed the Trustee to apply, from money held by it
available to be used for the redemption of Securities) an amount in cash
sufficient to redeem all of the Securities to be redeemed, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date such Securities
shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest, if any, to the
Redemption Date; provided, however, that installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Regular or Special Record Dates according
to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate, if any,
prescribed therefor in the Security.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be surrendered
at an office or agency of the Company at a Place of Payment therefor (with, if
the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing), and
the Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series and Tranche and Stated Maturity, of any authorized denomination
as requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so
surrendered.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series or any Tranche thereof,
except as otherwise specified as contemplated by Section 301 for Securities
of such series, or Tranche.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series, or any Tranche thereof, is herein referred
to as a "MANDATORY SINKING FUND PAYMENT", and any payment in excess of such
minimum amount provided for by the terms of Securities of any series, or any
Tranche thereof, is herein referred to as an "OPTIONAL SINKING FUND PAYMENT".
If provided for by the terms of Securities of any series, or any Tranche
thereof, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series, or any Tranche
thereof, as provided for by the terms of Securities of such series, or any
Tranche thereof.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (1) may deliver Securities of a series, or Tranche
(other than any Securities previously called for redemption) and (2) may
apply as a credit Securities of a series or Tranche which have been redeemed
either at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to
the Securities of such series or Tranche required to be made pursuant to the
terms of such Securities as provided for by the terms of such series or
Tranche thereof; PROVIDED that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not fewer than 45 days prior to each sinking fund payment date for
any series of Securities or any Tranche thereof, the Company will deliver to
the Trustee an Officer's Certificate specifying the amount of the next
ensuing sinking fund payment for that series or Tranche pursuant to the terms
of that series or Tranche, the portion thereof, if any, which is to be
satisfied
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by payment of cash and the portion thereof, if any, which is to be satisfied
by delivering and crediting Securities of that series or Tranche pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 days before each such sinking fund payment date
the Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in
the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. APPLICABILITY OF ARTICLE; COMPANY'S OPTION TO EFFECT DEFEASANCE
OR COVENANT DEFEASANCE.
Unless pursuant to Section 301 provision is made for the
inapplicability of either or both of (a) Defeasance of the Securities of a
series, or any Tranche thereof, under Section 1302 or (b) Covenant Defeasance
of the Securities of a series, or any Tranche thereof, under Section 1303,
then the provisions of such Section or Sections, as the case may be, together
with the other provisions of this Article, shall be applicable to the
Securities of such series or Tranche, and the Company may at its option by
Board Resolution, at any time, with respect to the Securities of such series,
or Tranche, elect to have either Section 1302 (unless inapplicable) or
Section 1303 (unless inapplicable) be applied to the Outstanding Securities
of such series or Tranche upon compliance with the applicable conditions set
forth below in this Article.
SECTION 1302. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the option provided in Section 1301
to defease the Outstanding Securities of a particular series or Tranche, the
Company shall be discharged from its obligations with respect to the
Outstanding Securities of such series or Tranche on the date the applicable
conditions set forth in Section 1304 are satisfied (hereinafter,
"DEFEASANCE"). Defeasance shall mean that the Company shall be deemed to
have paid and discharged the entire indebtedness represented by the
Outstanding Securities of such series or Tranche and to have satisfied all
its other obligations under such Securities and this Indenture insofar as
such Securities are concerned (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same); provided,
however, that the following rights, obligations, powers, trusts, duties and
immunities shall survive until otherwise terminated or discharged hereunder:
(A) the rights of Holders of Outstanding
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Securities of such series or Tranche to receive, solely from the trust fund
provided for in Section 1304, payments in respect of the principal of (and
premium, if any) and interest, if any, on such Securities when such payments
are due, (B) the Company's obligations with respect to such Securities under
Sections 304, 305, 306, 1002 and 1008, (c) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and (D) this Article. Subject to
compliance with this Article, the Company may exercise its option with
respect to Defeasance under this Section 1302 notwithstanding the prior
exercise of its option with respect to Covenant Defeasance under Section 1303
in regard to the Securities of such series or Tranche.
SECTION 1303. COVENANT DEFEASANCE.
Upon the Company's exercise of the option provided in Section 1301
to obtain a Covenant Defeasance with respect to the Outstanding Securities of
a particular series, or Tranche thereof, the Company shall be released from
its obligations under this Indenture (except its obligations under Sections
304, 305, 306, 506, 509, 610, 1001, 1002, 1006, 1007 and 1008) with respect
to the Outstanding Securities of such series, or Tranche thereof, on and
after the date the applicable conditions set forth in Section 1304 are
satisfied (hereinafter, "COVENANT DEFEASANCE"). Covenant Defeasance shall
mean that, with respect to the Outstanding Securities of such series, or
Tranche thereof, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in this
Indenture (except its obligations under Sections 304, 305, 306, 506, 509,
610, 1001, 1002, 1005, 1007 and 1008), whether directly or indirectly by
reason of any reference elsewhere herein or by reason of any reference to any
other provision herein or in any other document, and such omission to comply
shall not constitute an Event of Default under Section 501(3) with respect to
Outstanding Securities of such series, and the remainder of this Indenture
and of the Securities of such series or Tranche shall be unaffected thereby.
SECTION 1304. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to Defeasance under Section
1302 and Covenant Defeasance under Section 1303:
(1) the Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the
requirements of Section 609 who shall agree to comply with the
provisions of this Article applicable to it), under the terms of an
irrevocable trust agreement in form and substance reasonably
satisfactory to such Trustee, as trust funds in trust for the purpose
of making the following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such
Securities, (A) Dollars in an amount, or (B) U.S.
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Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with
their terms will provide, not later than the due date of any payment,
money in an amount, or (c) a combination thereof, in each case
sufficient, after payment of all federal, state and local taxes
or other charges or assessments in respect thereof payable by the
Trustee, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee (or other qualifying trustee) to pay and
discharge, (i) the principal of (and premium, if any, on) and each
installment of principal of (and premium, if any) and interest, if
any, on the Outstanding Securities of such series or Tranche on the
Stated Maturity of such principal or installment of principal or
interest and (ii) any mandatory sinking fund payments or analogous
payments applicable to the Outstanding Securities of such series or
Tranche on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of such Securities.
(2) No Default or Event of Default with respect to the
Securities of such series shall have occurred and be continuing on the
date of such deposit or shall occur as a result of such deposit, and
no Default or Event of Default under clause (4) or (5) of Section 501
hereof shall occur and be continuing, at any time during the period
ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period).
(3) Such deposit, Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under, any
other agreement or instrument to which the Company is a party or by
which it is bound.
(4) Such Defeasance or Covenant Defeasance shall not cause any
Securities of such series, or Tranche thereof, then listed on any
national securities exchange registered under the Exchange Act to be
delisted.
(5) In the case of an election with respect to Section 1302, the
Company shall have delivered to the Trustee either (A) a ruling
directed to the Trustee received from the Internal Revenue Service to
the effect that the Holders of the Outstanding Securities of such
series, or Tranche thereof, will not recognize income, gain or loss
for federal income tax purposes as
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a result of such Defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the same times as
would have been the case if such Defeasance had not occurred or (B)
an Opinion of Counsel, based on such ruling or on a change in the
applicable federal income tax law since the date of this Indenture,
in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of the Outstanding Securities of such
series, or Tranche thereof, will not recognize income, gain or loss
for federal income tax purposes as a result of such Defeasance and
will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
Defeasance had not occurred.
(6) In the case of an election with respect to Section 1303, the
Company shall have delivered to the Trustee an Opinion of Counsel or a
ruling directed to the Trustee received from the Internal Revenue
Service to the effect that the Holders of the Outstanding Securities
of such series or Tranche thereof will not recognize income, gain or
loss for federal income tax purposes as a result of such Covenant
Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such Covenant Defeasance had not occurred.
(7) Such Defeasance or Covenant Defeasance shall be effected in
compliance with any additional terms, conditions or limitations which
may be imposed on the Company in connection therewith pursuant to
Section 301.
(8) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the Defeasance
under Section 1302 or the Covenant Defeasance under Section 1303 (as
the case may be) have been complied with.
SECTION 1305. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST.
Subject to the provisions of the last paragraph of Section 1008, all
money and Government Obligations (including the proceeds thereof) deposited with
the Trustee (or other qualifying trustee--collectively for purposes of this
Section 1305, the "Trustee") pursuant to Section 1304 in respect of the
Outstanding Securities of a particular series, or Tranche, shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment,
-69-
<PAGE>
either directly or through any Paying Agent (including the Company acting as
its own Paying Agent) as the Trustee may determine, to the Holders of such
Securities of all sums due and to become due thereon in respect of principal
(and premium, if any) and interest, if any, but such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 1304 or the principal and interest received in
respect thereof, other than any such tax, fee or other charge which by law is
for the account of the Holders of the Outstanding Securities of such series or
Tranche.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver to pay to the Company from time to time upon Company Request any
money or Government Obligations held by it as provided in Section 1304 which, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited for
the purpose for which such money or Government Obligations were deposited.
ARTICLE FOURTEEN
MISCELLANEOUS
SECTION 1401. MISCELLANEOUS.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
-70-
<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.
PUBLIC SERVICE COMPANY
OF COLORADO
By_______________________________
Name:
Title:
Attest:
______________________________
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By_______________________________
Name:
Title:
-71-
<PAGE>
===============================================================================
PUBLIC SERVICE COMPANY OF COLORADO,
AS ISSUER
TO
THE BANK OF NEW YORK,
AS TRUSTEE
------------------------------
INDENTURE
SUBORDINATED DEBT SECURITIES
DATED AS OF , 1998
------------------------------
===============================================================================
<PAGE>
PUBLIC SERVICE COMPANY OF COLORADO
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of _______________, 1998
<TABLE>
<S>
Trust Indenture Indenture Section
Act Section
<S> <C>
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(5) . . . . . . . . . . . . . . . . . . . . . . 609
(b) . . . . . . . . . . . . . . . . . . . . . . 608, 610
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . . . . 613
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . 701, 702(a)
(b) . . . . . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . . . . . 702(c)
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . 703(a)
(b) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . . . . . . . . . . . 703(a)
(d) . . . . . . . . . . . . . . . . . . . . . . 703(b)
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . 704
(b) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . 102
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . 601(a)
(b) . . . . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . . . . 601(b)
(d) . . . . . . . . . . . . . . . . . . . . . . 601(c)
(d)(1) . . . . . . . . . . . . . . . . . . . . . . 601(a), 601(c)
(d)(2) . . . . . . . . . . . . . . . . . . . . . . 601(c)
(d)(3) . . . . . . . . . . . . . . . . . . . . . . 601(c)
(e) . . . . . . . . . . . . . . . . . . . . . . 514
Section 316(a)(last sentence) . . . . . . . . . . . . . . . . 101
(a)(1)(A). . . . . . . . . . . . . . . . . . . . . 512
(a)(1)(B). . . . . . . . . . . . . . . . . . . . . 502, 513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . 508
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . 1008
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . 107
</TABLE>
- ---------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of this Indenture.
<PAGE>
TABLE OF CONTENTS
Page
----
RECITALS OF THE COMPANY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
Definitions and other Provisions
of General Application
SECTION 101. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
AFFILIATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
AUTHENTICATING AGENT. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
BANKRUPTCY LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
BOARD OF DIRECTORS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
BOARD RESOLUTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
BUSINESS DAY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
CAPITAL LEASE OBLIGATIONS . . . . . . . . . . . . . . . . . . . . . . . . 3
COMMISSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
COMPANY REQUEST or COMPANY ORDER. . . . . . . . . . . . . . . . . . . . . 3
CORPORATE TRUST OFFICE. . . . . . . . . . . . . . . . . . . . . . . . . . 3
COVENANT DEFEASANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
CUSTODIAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
DEFAULTED INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
DEFEASANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
DEPOSITORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
DOLLARS and $ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
EVENT OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
EXCHANGE ACT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
GAAP. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
GLOBAL SECURITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
HOLDER or SECURITYHOLDER. . . . . . . . . . . . . . . . . . . . . . . . . 4
INDENTURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
INTEREST PAYMENT DATE . . . . . . . . . . . . . . . . . . . . . . . . . . 4
MATURITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
OFFICER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
OFFICER'S CERTIFICATE . . . . . . . . . . . . . . . . . . . . . . . . . . 5
OPINION OF COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ORIGINAL ISSUE DISCOUNT SECURITY. . . . . . . . . . . . . . . . . . . . . 5
OUTSTANDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
PAYING AGENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
PERIODIC OFFERING . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
PERSON. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
PLACE OF PAYMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
PREDECESSOR SECURITY. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
PREFERRED SECURITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
PSCo TRUST. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
REDEMPTION DATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
REDEMPTION PRICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
-i-
<PAGE>
Page
----
REGISTERED SECURITY . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
REGULAR RECORD DATE . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
RESPONSIBLE OFFICER . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECURITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECURITY REGISTER and SECURITY REGISTRAR. . . . . . . . . . . . . . . . . 7
SENIOR INDEBTEDNESS . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SPECIAL RECORD DATE . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
STATED MATURITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
TRANCHE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
TRUST INDENTURE ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
TRUST SECURITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
U.S. GOVERNMENT OBLIGATIONS . . . . . . . . . . . . . . . . . . . . . . . 8
VICE PRESIDENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 102. Compliance Certificates and Opinions. . . . . . . . . . . . . . 9
SECTION 103. Form of Documents Delivered to Trustee. . . . . . . . . . . . .10
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . .10
SECTION 105. Notices, Etc., to Trustee and Company . . . . . . . . . . . . .12
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . .
SECTION 107. Conflict with Trust Indenture Act . . . . . . . . . . . . . . .13
SECTION 108. Effect of Headings and Table of Contents. . . . . . . . . . . .13
SECTION 109. Successors and Assigns. . . . . . . . . . . . . . . . . . . . .13
SECTION 110. Separability Clause . . . . . . . . . . . . . . . . . . . . . .13
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . .13
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . .14
SECTION 113. Legal Holidays. . . . . . . . . . . . . . . . . . . . . . . . .14
SECTION 114. No Recourse Against Others. . . . . . . . . . . . . . . . . . .14
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . .14
SECTION 202. Form of Trustee's Certificate of Authentication . . . . . . . .15
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series. . . . . . . . . . . . . .15
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . .18
SECTION 303. Execution, Authentication, Delivery and Dating. . . . . . . . .18
SECTION 304. Temporary Securities. . . . . . . . . . . . . . . . . . . . . .22
SECTION 305. Registration, Registration of Transfer and Exchange . . . . . .23
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. . . . . . . .25
SECTION 307. Payment of Interest; Interest Rights Preserved. . . . . . . . .26
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . .27
SECTION 309. Cancellation. . . . . . . . . . . . . . . . . . . . . . . . . .28
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . . .28
-ii-
<PAGE>
Page
----
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . .28
SECTION 402. Application of Trust Money. . . . . . . . . . . . . . . . . . .30
ARTICLE FIVE
Remedies
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . .30
SECTION 502. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . . . . . . . . . . . .32
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . .33
SECTION 504. Trustee May File Proofs of Claim. . . . . . . . . . . . . . . .34
SECTION 505. Trustee May Enforce Claims Without Possession of Securities . .34
SECTION 506. Application of Money Collected. . . . . . . . . . . . . . . . .35
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . .35
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest. . . . . . . . . . . . . . . . . . . . . . . . . .36
SECTION 509. Restoration of Rights and Remedies. . . . . . . . . . . . . . .36
SECTION 510. Rights and Remedies Cumulative. . . . . . . . . . . . . . . . .37
SECTION 511. Delay or Omission Not Waiver. . . . . . . . . . . . . . . . . .37
SECTION 512. Control by Holders. . . . . . . . . . . . . . . . . . . . . . .37
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . .37
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . .38
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities of
the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . .38
SECTION 602. Notice of Defaults. . . . . . . . . . . . . . . . . . . . . . .39
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . .39
SECTION 604. Not Responsible for Recitals or Issuance of Securities. . . . .41
SECTION 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . .41
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . .41
SECTION 607. Compensation and Reimbursement. . . . . . . . . . . . . . . . .41
SECTION 608. Disqualification; Conflicting Interests . . . . . . . . . . . .42
SECTION 609. Corporate Trustee Required; Eligibility . . . . . . . . . . . .42
SECTION 610. Resignation and Removal; Appointment of Successor . . . . . . .42
SECTION 611. Acceptance of Appointment by Successor. . . . . . . . . . . . .44
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business. . . . . . . . . . . . . . . . . . . . . . . . . . . .45
SECTION 613. Preferential Collection of Claims Against Company . . . . . . .46
SECTION 614. Appointment of Authenticating Agent . . . . . . . . . . . . . .46
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<PAGE>
Page
----
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . .48
SECTION 702. Preservation of Information; Communications to Holders. . . . .49
SECTION 703. Reports by Trustee. . . . . . . . . . . . . . . . . . . . . . .50
SECTION 704. Reports by Company. . . . . . . . . . . . . . . . . . . . . . .50
ARTICLE EIGHT
Consolidation, Merger, Lease, Sale or Transfer
SECTION 801. When Company May Merge, Etc.. . . . . . . . . . . . . . . . . .51
SECTION 802. Opinion of Counsel. . . . . . . . . . . . . . . . . . . . . . .52
SECTION 803. Successor Corporation Substituted . . . . . . . . . . . . . . .52
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent
of Holders. . . . . . . . . . . . . . . . . . . . . . . . . . .53
SECTION 902. Supplemental Indentures with Consent of Holders . . . . . . . .55
SECTION 903. Execution of Supplemental Indentures. . . . . . . . . . . . . .56
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . .57
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . . . . . . .57
SECTION 906. Reference in Securities to Supplemental
Indentures. . . . . . . . . . . . . . . . . . . . . . . . . . .57
ARTICLE TEN
Covenants
SECTION 1001. Payments of Securities. . . . . . . . . . . . . . . . . . . . .57
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . .57
SECTION 1003. Corporate Existence . . . . . . . . . . . . . . . . . . . . . .58
SECTION 1004. Payment of Taxes and Other Claims . . . . . . . . . . . . . . .58
SECTION 1005. Compliance Certificates . . . . . . . . . . . . . . . . . . . .58
SECTION 1006. Commission Reports. . . . . . . . . . . . . . . . . . . . . . .59
SECTION 1007. Waiver of Stay, Extension or Usury Laws . . . . . . . . . . . .60
SECTION 1008. Money for Securities Payments to Be Held in Trust . . . . . . .60
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Applicability of Article. . . . . . . . . . . . . . . . . . . .62
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . .62
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<PAGE>
Page
----
SECTION 1103. Selection by Trustee of Securities to
Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . .62
SECTION 1104. Notice of Redemption. . . . . . . . . . . . . . . . . . . . . .63
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . .64
SECTION 1106. Securities Payable on Redemption Date . . . . . . . . . . . . .65
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . .65
ARTICLE TWELVE
Sinking Funds
SECTION 1201. Applicability of Article. . . . . . . . . . . . . . . . . . . .65
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities . . . . .66
SECTION 1203. Redemption of Securities for Sinking Fund . . . . . . . . . . .66
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
SECTION 1301. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance . . . . . . . . . . . . . . .67
SECTION 1302. Defeasance and Discharge. . . . . . . . . . . . . . . . . . . .67
SECTION 1303. Covenant Defeasance.. . . . . . . . . . . . . . . . . . . . . .68
SECTION 1304. Conditions to Defeasance or Covenant Defeasance . . . . . . . .68
SECTION 1305. Deposited Money and Government Obligations To Be Held In
Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . .70
ARTICLE FOURTEEN
Subordination
SECTION 1401. Agreement of Securityholders that Securities
Subordinated to Extent Provided . . . . . . . . . . . . . . . .71
SECTION 1402. Company not to Make Payments with Respect to
Securities in Certain Circumstances . . . . . . . . . . . . . .71
SECTION 1403. Securities Subordinated to Prior Payment of all Senior
Indebtedness on Dissolution, Liquidation or
Reorganization of Company . . . . . . . . . . . . . . . . . . .72
SECTION 1404. Securityholders to be Subrogated to Right of Holders
of Senior Indebtedness. . . . . . . . . . . . . . . . . . . . .73
SECTION 1405. Obligation of the Company Unconditional . . . . . . . . . . . .74
SECTION 1406. Trustee Entitled to Assume Payments Not
Prohibited in Absence of Notice . . . . . . . . . . . . . . . .74
SECTION 1407. Application by Trustee of Monies Deposited
With It . . . . . . . . . . . . . . . . . . . . . . . . . . . .75
SECTION 1408. Subordination Rights not Impaired by Acts or Omissions
of Company or Holders of Senior Indebtedness. . . . . . . . . .75
SECTION 1409. Securityholders Authorize Trustee to Effectuate
Subordination of Securities . . . . . . . . . . . . . . . . . .75
SECTION 1410. Right of Trustee to Hold Senior Indebtedness. . . . . . . . . .76
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Page
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SECTION 1411. Article Fourteen Not to Prevent Events
of Default. . . . . . . . . . . . . . . . . . . . . . . . . . .76
ARTICLE FIFTEEN
Miscellaneous
SECTION 1501. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . .76
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INDENTURE, dated as of _____________, 1998, between PUBLIC SERVICE
COMPANY OF COLORADO, a corporation duly organized and existing under the laws
of the State of Colorado (herein called the "COMPANY"), having its principal
office at 1225 17th Street, Denver, Colorado 80202, and The Bank of New
York, a New York banking corporation, as Trustee (herein called the
"TRUSTEE"), having its principal place of business at 101 Barclay Street,
Floor 21 West, New York, New York 10081.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of indebtedness (herein
called the "SECURITIES"), to be issued in one or more series, authenticated
and delivered, as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of
the Securities of any series, without giving priority of any one Security or
series over any other, except as otherwise expressly provided herein, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
<PAGE>
(4) the word "INCLUDING" (and with correlative meaning "INCLUDE")
means including, without limiting the generality of, any description
preceding such term; and
(5) the words "HEREIN," "HEREOF" and "HEREUNDER" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"ACT", when used with respect to any Holder, has the meaning
specified in Section 104.
"AFFILIATE" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"AUTHENTICATING AGENT" means with respect to any Security, any
Person authorized by the Trustee pursuant to Section 614 to act on behalf of
the Trustee to authenticate such Securities.
"BANKRUPTCY LAW" means Title 11, U.S. Code, as in effect from time
to time, or any similar federal or state law for the relief of debtors.
"BOARD OF DIRECTORS" means the board of directors of the Company;
provided, however, that when the context refers to actions or resolutions of
the Board of Directors, then the term "Board of Directors" shall also mean
any duly authorized committee of the Board of Directors of the Company or
Officer authorized to act with respect to any particular matter to exercise
the power of the Board of Directors of the Company.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"BUSINESS DAY", when used with respect to any Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day
on which banking institutions in that Place of Payment are authorized or
obligated by law, regulation or executive order to close.
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"CAPITAL LEASE OBLIGATIONS" of a person means any obligation that
is required to be classified and accounted for as a capital lease on the face
of a balance sheet of such Person prepared in accordance with GAAP.
"COMMISSION" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or
order signed in the name of the Company by its Chairman of the Board, its
President or a Vice President, and by its Treasurer, an Assistant Treasurer,
its Controller, an Assistant Controller, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
"CORPORATE TRUST OFFICE" means the principal office of the Trustee
at which at any particular time its corporate trust business shall be
administered, which office at the date hereof is located at 101 Barclay
Street, Floor 21 West, New York, New York 10081.
"COVENANT DEFEASANCE" has the meaning specified in Section 1303.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"DEFAULT" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DEFEASANCE" has the meaning specified in Section 1302.
"DEPOSITORY" means, with respect to the Securities of any series,
or any Tranche thereof, issuable or issued in whole or in part in the form of
one or more Global Securities, the Person designated as Depository by the
Company pursuant to Section 301, which must be a clearing agency registered
under the Exchange Act until a successor Depository shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Depository" shall mean or include each Person who is then a Depository
hereunder, and if at any time there is more
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than one such Person, "Depository" shall mean the Depository with respect to
the Securities of that series or Tranche.
"DOLLARS" and "$" means the coin or currency of the United States
of America as at the time of payment is legal tender for the payment of
public and private debt.
"EVENT OF DEFAULT" has the meaning specified in Section 501.
"EXCHANGE ACT" means the Securities and Exchange Act of 1934 and
the rules and regulations promulgated thereunder, in each case as amended
from time to time.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Standards Accounting Board, and as are
applicable to the financial statements of the Company, in each case as of the
date of any computation required hereunder.
"GLOBAL SECURITY" means a Security that evidences all or part of
the Securities of any series, or any Tranche thereof.
"HOLDER" or "SECURITYHOLDER" means, with respect to a Security, the
Person in whose name such Security is registered in the Security Register
(which terms, in the case of a Global Security, mean the Depository with
respect to such Security).
"INDENTURE" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities, and any
Tranche thereof, established as contemplated by Section 301.
"INTEREST", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"INTEREST PAYMENT DATE", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"MATURITY", when used with respect to any Security, means the date
on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"OFFICER" means the Chairman of the Board, the Vice Chairman of the
Board, the President, any Vice President, the
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Treasurer, any Assistant Treasurer, the Controller, the Secretary or any
Assistant Secretary of the Company.
"OFFICER'S CERTIFICATE" means a certificate signed by an Officer
and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be
an employee of or counsel for the Company, and who shall be reasonably
acceptable to the Trustee.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 502.
"OUTSTANDING", when used with respect to any Securities, means, as
of the date of determination, all such Securities theretofore authenticated
and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust or
set aside and segregated in trust by the Company (if the Company shall act
as its own Paying Agent) for the Holders of such Securities; provided that,
if such Securities are to be redeemed prior to the Stated Maturity thereof,
notice of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(iii) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations of the
Company; and
(iv) Securities which have been defeased pursuant to Section
1302;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder (a) the
principal amount of an Original Issue Discount Security that shall be deemed
to be Outstanding for such purposes shall be that portion of the principal
amount thereof that could be declared to be due and payable upon the
occurrence of an Event of Default and the
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continuation thereof pursuant to the terms of such Original Issue Discount
Security as of the date of such determination and (b) Securities owned by the
Company or any other obligor upon the Securities or any Affiliate of the
Company (other than a PSCo Trust) or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Securities
which the Trustee knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the pledgee is not
the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor.
"PAYING AGENT" means any Person authorized by the Company to pay
the principal of (and premium, if any) or interest, if any, on any Securities
on behalf of the Company. The Company may act as Paying Agent with respect
to any Securities issued hereunder.
"PERIODIC OFFERING" means an offering of Securities of a series
from time to time any or all of the specific terms of which Securities, which
may be in one or more Tranches, including the rate or rates of interest, if
any, thereon, the Stated Maturity or Maturities thereof and the redemption
provisions, if any, with respect thereto, are to be determined by the Company
or its agents from time to time subsequent to the initial request for
authentication and delivery of such Securities by the Trustee, all as
contemplated in Section 301.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"PLACE OF PAYMENT", when used with respect to any Security, means
the place or places where the principal of (and premium, if any) and
interest, if any, on such Security or any Tranche thereof, are payable as
specified as contemplated by Section 301.
"PREDECESSOR SECURITY" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed (to the extent lawful) to evidence the same debt as the
mutilated, destroyed, lost or stolen Security.
"PREFERRED SECURITIES" means the preferred securities issued by a
PSCo Trust.
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"PSCO TRUST" means a statutory business trust created by the
Company for the purpose of issuing Trust Securities and to use the proceeds
of the sale thereof to purchase one or more series of Securities.
"REDEMPTION DATE", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"REDEMPTION PRICE", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"REGISTERED SECURITY" means any Security issued hereunder and
registered in the Security Register.
"REGULAR RECORD DATE" for the interest payable on any Interest
Payment Date on the Securities means the date specified for that purpose as
contemplated by Section 301.
"RESPONSIBLE OFFICER", when used with respect to the Trustee, means
the chairman or any vice-chairman of the board of directors, the chairman or
any vice-chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, the
secretary, any assistant secretary, the treasurer, any assistant treasurer,
the cashier, any assistant cashier, any trust officer or assistant trust
officer, the controller or any assistant controller or any other officer of
the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"SECURITIES" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective
meanings specified in Section 305.
"SENIOR INDEBTEDNESS" means the principal of and premium, if any,
and interest, if any, on the following, whether outstanding on the date of
execution of this Indenture or thereafter incurred or created: (i) all
obligations of the Company for money borrowed by the Company (including
Capital Lease Obligations and purchase money obligations with an original
maturity in excess of one year) or evidenced by debentures (other than the
Securities), bonds, notes, bankers' acceptances or other corporate debt
securities or similar instruments issued by the Company; (ii) all obligations
of the Company with respect to letters of credit; (iii) all obligations of
the Company constituting a guarantee or assumption of indebtedness of others
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of the type referred to in the preceding clauses (i) and (ii), including
through an agreement to purchase, contingent or otherwise; (iv) all dividends
of others for the payment of which the Company is responsible or liable as
obligor, guarantor or otherwise; (v) all obligations of the type referred to
in clauses (i) through (iv) of others secured by any property or asset of the
Company (whether or not such obligation is assumed by the Company), the
amount of such obligation being deemed to be the lesser of the value of such
property or asset or the amount of the obligation so secured or (vi)
renewals, extensions or refundings of any of the obligations referred to in
the preceding clauses (i) through (v); unless, in the case of any particular
obligation, renewal, extension or refunding, under the express provisions of
the instrument creating or evidencing the same, or pursuant to which the same
is outstanding, such obligation or such renewal, extension or refunding
thereof is not superior in right of payment to or is pari passu with the
Securities.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307.
"STATED MATURITY", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"TRANCHE" means a group of Securities which (a) are of the same
series and (b) are identical except as to principal amount and/or date of
issuance.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this Indenture was executed;
provided, however, that in the event that such Act is amended after such
date, "TRUST INDENTURE ACT" means, to the extent required by such amendment,
the Trust Indenture Act of 1939 as so amended.
"TRUST SECURITIES" means the undivided beneficial interests in a
PSCo Trust.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect
to Securities of that series.
"U.S. GOVERNMENT OBLIGATIONS" means securities which are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii)
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obligations of a Person controlled or supervised by and acting as an agency
or instrumentality of the United States of America the timely payment of
which is unconditionally guaranteed by the full faith and credit of the
United States of America which, in either case, are not callable or
redeemable at the option of the issuer thereof or otherwise subject to
prepayment, and shall also include a depository receipt issued by a New York
Clearing House bank or trust company as custodian with respect to any such
U.S. Government Obligation or a specific payment or interest on or principal
of any such U.S. Government Obligation held by such custodian for the account
of the holder of a depository receipt, provided that (except as required by
law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt or from any amount held by
the custodian in respect of the U.S. Government Obligation or the specific
payment of interest on or principal of the U.S. Government Obligation
evidenced by such depository receipt.
"VICE PRESIDENT", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, other than an action
permitted by Sections 614 and 704 hereof, the Company shall furnish to the
Trustee an Officer's Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with,
except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of
this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
a. a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
b. a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
c. a statement that, in the opinion of each such individual, he has
made such examination or investigation as
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is necessary to enable him to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
d. a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Officer may be based, insofar as
it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such Officer has actual knowledge that
the certificate or opinion or representations with respect to the matters
upon which his certificate or opinion is based are erroneous. Any such
certificate or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
Officer or Officers of the Company stating that the information with respect
to such factual matters is in the possession of the Company, unless such
counsel has actual knowledge that the certificate or opinion or
representations with respect to such matters are erroneous.
The provisions above requiring that certain persons have actual
knowledge that certain matters or opinions are erroneous shall not be read to
impose any duty of examination or investigation upon such persons.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by agents
duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is
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hereby expressly required, to the Company. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "ACT" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit or written statement
(which need not be notarized) of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such
instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate, affidavit or written statement shall also
constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
and the Company deem sufficient.
(c) The ownership of Registered Securities shall be proved by the
Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
(e) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by Company Order, fix in advance a record date
for the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or
other Act may be given before or after such record date, but only the Holders
of record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining (i) whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent, waiver or
other Act, and for that purpose the Outstanding Securities shall be computed
as of such record date and/or (ii) which Holders may revoke any such Act
(notwithstanding subsection (f) of this Section).
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(f) Until such time as written instruments shall have been
delivered to the Trustee with respect to the requisite percentage of
principal amount of Securities for the action contemplated by such
instruments, any such instrument executed and delivered by or on behalf of a
Holder may be revoked with respect to any or all of such Securities by
written notice by such Holder or any subsequent Holder, proven in the manner
in which such instrument was proven.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee and received by the Trustee at its Corporate Trust
Office, Attention: Corporate Trust Administrator, or
(b) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this Indenture, attention: Secretary, or at any other
address previously furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture or any Security provides for notice to Holders
of any event, such notice shall be deemed sufficiently given (unless
otherwise herein or in such Security expressly provided) if in writing and
mailed, first-class postage prepaid, to each Holder affected by such event,
at his address as it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders or the validity of the proceedings to which
such notice relates. Where this Indenture or any Security provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall
be the equivalent of such notice. Waivers of notice by Holders shall be
filed with the Trustee, but such filing shall not be a condition precedent to
the validity of any action taken in reliance upon such waiver.
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In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose
hereunder.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of
the country of publication.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control. If any provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act that may be so modified or excluded, the
latter provision shall be deemed to apply to this Indenture as so modified or
shall be excluded, as the case may be.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The headings of the Articles and Sections herein and the Table of
Contents are for convenience of reference only and shall not be taken to be
any part of or to control or affect the meaning, construction or effect of
provisions of this Indenture.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
If any provision of this Indenture or of the Securities, or the
application of any such provision to any Person or circumstance, shall be
held to be invalid, illegal or unenforceable, the remainder of this Indenture
or of the Securities, or the application of such provision to Persons or
circumstances other than those as to whom or which it is invalid, illegal or
unenforceable, shall not in any way be affected or impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
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SECTION 112. GOVERNING LAW.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws (other than the choice of law
provisions) of the State of New York except to the extent that the Trust
Indenture Act shall be applicable.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day in any Place of
Payment, then (notwithstanding any other provision of this Indenture or of
the Securities, other than a provision in Securities of any series, or any
Tranche thereof, or in the indenture supplemental hereto, Board Resolution or
Officer's Certificate that establishes the terms of the Securities of such
series or Tranche, which specifically states that such provision shall apply
in lieu of this Section) payment of interest or principal and premium, if
any, need not be made at such Place of Payment on such date, but may be made
on the next succeeding Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date or Redemption Date,
or at the Stated Maturity, and, if such payment is made or duly provided for
on such Business Day, no interest shall accrue on the amount so payable for
the period from and after such Interest Payment Date, Redemption Date or
Stated Maturity, as the case may be, to such Business Day.
SECTION 114. NO RECOURSE AGAINST OTHERS.
A director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the Company under
the Securities or this Indenture or for any claim based on, in respect of or
by reason of such obligations or their creation. Each Securityholder, by
accepting a Security, waives and releases all such liability. Such waivers
and releases are part of the consideration for the issuance of the
Securities.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The definitive Securities of each series shall be in substantially
such form or forms established as shall be established pursuant to Section
301, with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as the Company may deem appropriate and as are
not contrary to the provisions of this
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Indenture, or as may be required to comply with the rules of any securities
exchange or of any automated quotation or book-entry system, or to conform to
usage, all as may be determined by the officers executing such Securities, as
evidenced by their execution of the Securities.
The Securities of each series shall be issuable in registered form
without coupons. The definitive Securities shall be produced in such manner
as shall be determined by the officers executing such Securities, as
evidenced by their execution thereof.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in
substantially the form set forth below:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
-------------------------------
as Trustee
By:
--------------------------
Authorized Signatory
Dated:
----------------------
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more
series. There shall be established in or pursuant to a Board Resolution, and
set forth in an Officer's Certificate, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of any
series:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Sections 304, 305, 306, 906 or 1107);
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(3) whether any Securities of the series, or any Tranche thereof, are
to be issuable in global form with or without coupons and, if so, (i)
whether beneficial owners of interests in any such Global Security may
exchange such interests for Securities of such series and Tranche and of
like tenor of any authorized form and denomination and the circumstances
under which any such exchanges may occur, if other than in the manner
provided in Section 305, and (ii) the name of the Depository with respect
to any Global Security;
(4) the date or dates on which the principal of the Securities of the
series, or any Tranche thereof, is payable;
(5) the rate or rates at which the Securities of the series, or any
Tranche thereof, shall bear interest, if any (including the rate or rates
at which overdue principal shall bear interest, if different from the rate
or rates at which such Securities shall bear interest prior to Maturity,
and, if applicable, the rate or rates at which overdue premium or interest
shall bear interest, if any), or any formulary or other method or other
means by which any such rate or rates shall be determined, by reference to
an index or other fact or event ascertainable outside this Indenture or
otherwise; the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest shall be payable and the
Regular Record Date for the interest payable on any Interest Payment Date
or any formulary or other method or other means by which such date or dates
shall be determined, by reference to an index or other fact or event
ascertainable outside of this Indenture or otherwise (without regard to any
provisions for redemption, prepayment, acceleration, purchase or extension
and, if applicable to such series of Securities, or any Tranche thereof,
the basis points and United States Treasury rate(s) and any other rates to
be used in calculating the reset rate;
(6) the place or places where the principal of (and premium, if any)
and interest, if any (if such interest is not to be paid as specified in
Section 307), on Securities of the series, or any Tranche thereof, shall be
payable;
(7) the right of the Company, if any, to defer any payment of
principal of or interest on the Securities of the series, or any Tranche
thereof, and the maximum length of any such deferral period;
(8) the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series, or any
Tranche thereof, may be redeemed, in whole or in part, at the option of the
Company, pursuant to any sinking fund or otherwise;
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(9) the obligation, if any, of the Company to redeem or purchase
Securities of the series, or any Tranche thereof, pursuant to any sinking
fund or analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the terms
and conditions upon which Securities of the series, or any Tranche thereof,
shall be redeemed or purchased, in whole or in part, pursuant to such
obligation, and, where applicable, the obligation of the Company to select
the Securities to be redeemed;
(10) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series, or any
Tranche thereof, shall be issuable;
(11) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series, or any Tranche thereof, which
shall be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502;
(12) additional Events of Default with respect to Securities of the
series, or any Tranche thereof, if any, other than those set forth herein;
(13) if either or both of Section 1302 and Section 1303 shall be
inapplicable to the Securities of the series, or any Tranche thereof,
(provided that if no such inapplicability shall be specified, then both
Section 1302 and Section 1303 shall be applicable to the Securities of the
series, or any Tranche thereof);
(14) if other than U.S. dollars, the currency or currencies or units
based on or related to currencies in which the Securities of such series,
or any Tranche thereof, shall be denominated and in which payments or
principal of, and any premium and interest on, such Securities shall or may
by payable;
(15) additional covenants with respect to Securities of the series, or
any Tranche thereof, if any, other than those set forth herein;
(16) if other than the Trustee, the identity of the Registrar and any
Paying Agent; and
(17) any exceptions to Section 113 or in the definition of "Business
Day" with respect to Securities of the series, or any Tranche thereof,
(18) any other terms of the Securities of the series, or any Tranche
thereof (which terms shall not be inconsistent with the provisions of this
Indenture).
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All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to such Board Resolution and set forth in such Officer's Certificate
or in any such indenture supplemental hereto.
With respect to Securities of a series subject to a Periodic
Offering, the indenture supplemental hereto or the Board Resolution which
establishes such series, or the Officer's Certificate pursuant to such Board
Resolution, may provide general terms or parameters for Securities of such
series and provide either that the specific terms of Securities of such
series, or any Tranche thereof, shall be specified in a Company Order or that
such terms shall be determined by the Company or its agents in accordance
with procedures specified in a Company Order as contemplated by Section 303.
Anything herein to the contrary notwithstanding, the Trustee shall
be under no obligation to authenticate and deliver Securities of any series
the terms of which, established as contemplated by this Section, would affect
the rights, duties, obligations, liabilities or immunities of the Trustee
under this Indenture.
SECTION 302. DENOMINATIONS.
The Securities shall be issuable in registered form without coupons
in such denominations as shall be specified as contemplated by Section 301.
In the absence of any such provisions with respect to the Securities of any
series, or any Tranche thereof, the Securities of such series or Tranche
shall be issuable in denominations of $1,000 and any integral multiple
thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President or one
of its Vice Presidents, under its corporate seal reproduced thereon attested
by its Secretary or one of its Assistant Secretaries. The signature of any
of these officers on the Securities may be manual or facsimile. The seal of
the Company may be in the form of a facsimile thereof and may be impressed,
affixed, imprinted or otherwise reproduced on the Securities. Typographical
and other minor errors or defects in any such reproduction of the seal or any
such signature shall not affect the validity or enforceability of any
Security that has been duly authenticated and delivered by the Trustee.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior
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to the authentication and delivery of such Securities or did not hold such
offices at the date of such Securities.
At any time and from time to time after the original execution and
delivery of this Indenture, the Company may deliver Securities of any series,
executed by the Company, to the Trustee for authentication. Except as
otherwise provided in this Article Three, the Trustee shall thereupon
authenticate and make available for delivery, or cause to be authenticated
and delivered, said Securities to or upon a Company Order, without any
further action by the Issuer; PROVIDED, HOWEVER, that the Trustee shall
authenticate and make available for delivery Securities of such series for
original issue from time to time in the aggregate principal amount
established for such series pursuant to such procedures, acceptable to the
Trustee and to such recipients, as may be specified from time to time by a
Company Order. The Stated Maturity, original issue dates, interest rates and
any other terms of the Securities of such series, or any Tranche thereof,
shall be determined by or pursuant to such Company Order and procedures. If
provided for in such procedures, such Company Order may authorize
authentication and delivery pursuant to oral instructions from the Company or
its duly authorized agent, which instructions shall be promptly confirmed in
writing.
In authenticating the Securities of such series and accepting the
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, prior to the initial authentication of
the Securities of such series, and (subject to Section 601) shall be fully
protected in relying upon:
(1) a Board Resolution relating thereto certified by the Secretary or
Assistant Secretary of the Company;
(2) an Officer's Certificate or an executed supplemental indenture
setting forth the terms of such Securities as provided in Section 301;
(3) an Officer's Certificate which shall state that all conditions
precedent provided for in this Indenture relating to the issuance of such
Securities have been complied with, that no Event of Default with respect
to any series of Securities, or any Tranche thereof, has occurred and is
continuing and that the issuance of such Securities does not constitute and
will not result in (i) any Event of Default or any event or condition,
which, upon the giving of notice or the lapse of time or both, would become
an Event of Default or (ii) any default under the provisions of any other
instrument or agreement by which the Company is bound; and
(4) an Opinion of Counsel, which shall state:
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(a) that the form or forms of such Securities have been duly
authorized by the Company and have been established in conformity with the
provisions of this Indenture;
(b) that the term or terms of such Securities have been duly
authorized by the Company and have been established in conformity with the
provisions of this Indenture;
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, except to the extent enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium and other
similar laws affecting the enforcement of creditors' rights generally and
by the effect of general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law); and
(d) that no consent, approval, authorization, order, registration or
qualification of or with any court or any governmental agency or body
having jurisdiction over the Company is required for the execution and
delivery of such Securities by the Company, except such as have been
obtained (except that no opinion need be expressed as to state securities
or Blue Sky laws).
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture in a manner that in the
written opinion of counsel to the Trustee (which counsel may be an employee
of the Trustee) such authentication may not lawfully be made or would involve
the Trustee in personal liability.
Notwithstanding the provisions of Section 301 and of the
immediately preceding paragraph, with respect to Securities of a series
subject to a Periodic Offering, the Trustee shall be entitled to receive the
Officer's Certificate otherwise required pursuant to Section 303(3) and the
Opinion of Counsel required by Section 303(4) only once at or prior to the
time of the first authentication and delivery of such Securities (provided
that such Opinion of Counsel addresses the authentication and delivery of all
such Securities) and that, in lieu of the opinions described in clauses (b)
and (c) above, Counsel may opine that:
(x) when the terms of such Securities shall have been
established pursuant to a Company Order or Orders or pursuant to such
procedures as may be specified from
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time to time by a Company Order or Orders, all as contemplated by
and in accordance with the instrument or instruments delivered
pursuant to clause (a) above, such terms will have been duly
authorized by the Company and will have been established in
conformity with the provisions of this Indenture; and
(y) when such Securities shall have been authenticated and
delivered by the Trustee in accordance with this Indenture and the
Company Order or Orders or the specified procedures referred to in
paragraph (x) above and issued and delivered by the Company in the
manner and subject to any conditions specified in such Opinion of
Counsel, such Securities will constitute valid obligations of the
Company enforceable in accordance with their terms except to the
extent enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws
affecting the enforcement of creditors rights generally and by the
effect of general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law).
With respect to Securities of a series subject to a Periodic
Offering, the Trustee may conclusively rely, as to the authorization by the
Company of any of such Securities, the forms and terms thereof, the validity
thereof and the compliance of the authentication and delivery thereof with
the terms and conditions of this Indenture, upon the Opinion or Opinions of
Counsel, the Officer's Certificate and the certificates and other documents
delivered pursuant to this Section 303 at or prior to the time of the first
authentication and delivery of Securities of such series until any of such
opinions, certificates or other documents have been superseded or revoked or
expire by their terms; PROVIDED, HOWEVER, that any request by the Company to
the Trustee to authenticate and deliver Securities of such series shall
constitute a representation and warranty by the Company that as of the date
of such request the statements made in the most recent Officer's Certificate
delivered pursuant to Section 303(3) are true and correct as if made on and
as of the date thereof.
If the Company shall establish pursuant to Section 301 that the
Securities of a series, or any Tranche thereof, are to be issued in the form
of one or more Global Securities, then the Company shall execute and the
Trustee shall, in accordance with this Section and the Company Order with
respect to the authentication and delivery of such series or Tranche,
authenticate and deliver one or more Global Securities that (i) shall be in
an aggregate amount equal to the aggregate principal amount specified in such
Company Order, (ii) shall be registered in the name of the Depository
therefor or its nominee, and (iii)
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shall be made available for delivery by the Trustee to such Depository or
pursuant to such Depository's instruction.
Each Depository designated pursuant to Section 301 must, at the
time of its designation and at all times while it serves as Depository, be a
clearing agency registered under the Exchange Act and any other applicable
statute or regulation.
Unless otherwise provided for in the form of Security, each
Security shall be dated the date of its authentication and except that any
substitute Security under Section 306 shall be dated so that neither gain nor
loss in interest shall result from any mutilation, destruction, loss or theft
of the relevant Predecessor Security.
No Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided
for herein executed by the Trustee by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that
such Security has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, or
any Tranche thereof, the Company may execute, and upon Company Order the
Trustee shall authenticate and make available for delivery, temporary
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
In the case of Securities of any series, or any Tranche thereof,
such temporary Securities may be in global form, representing all or a
portion of the Outstanding Securities of such series or Tranche.
Except in the case of temporary Securities in global form (which
shall be exchanged in accordance with the provisions of Section 305), if
temporary Securities of any series, or any Tranche thereof, are issued, the
Company will cause definitive Securities of that series or Tranche thereof to
be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, or any Tranche thereof, the temporary Securities
of such series or Tranche shall be exchangeable for definitive Securities of
such series or Tranche thereof upon surrender of the temporary Securities of
such series or Tranche thereof at the office or agency of the Company in a
Place of Payment for that series or Tranche without charge to the Holder.
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Upon surrender for cancellation of any one or more temporary Securities of
any series, or any Tranche thereof, the Company shall execute and the Trustee
shall authenticate and make available for delivery in exchange therefor a
like principal amount of definitive Securities of the same series, or Tranche
thereof, of authorized denominations and of like tenor. Until so exchanged,
the temporary Securities of any series, or any Tranche thereof, shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities of such series, or any Tranche thereof.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any
other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "SECURITY REGISTER") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities of each series, or Tranche
thereof, and of registration of transfers of Securities of each series, or
Tranche thereof. The Trustee is hereby appointed "SECURITY REGISTRAR" for
the purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security of any
series or any Tranche thereof, at the office or agency of the Company in
Place of Payment for that series or Tranche thereof, the Company shall
execute, and the Trustee shall authenticate and make available for delivery,
in the name of the designated transferee or transferees, one or more new
Securities of the same series and Tranche, of any authorized denominations
and of a like aggregate principal amount and Stated Maturity.
At the option of the Holder, Securities of any series or any
Tranche thereof, may be exchanged for other Securities of the same series and
Tranche, of any authorized denominations and of a like aggregate principal
amount and Stated Maturity, upon surrender of the Securities to be exchanged
at such office or agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
make available for delivery, the Securities which the Holder making the
exchange is entitled to receive.
The provisions of Clauses (1), (2), (3) and (4) below shall apply
only to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depository designated for such Global
Security or a nominee thereof and delivered to such Depository or a nominee
thereof or custodian therefor, and each such Global Security shall
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constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be registered,
in the name of any Person other than the Depository for such Global
Security or a nominee thereof unless (A) such Depository (i) has notified
the Company that it is unwilling or unable to continue as Depository for
such Global Security or (ii) has ceased to be a clearing agency registered
under the Exchange Act, (B) there shall have occurred and be continuing an
Event of Default with respect to such Global Security or (C) there shall
exist such circumstances, if any, in addition to or in lieu of the
foregoing as have been specified for this purpose as contemplated by
Section 301.
(3) Subject to Clause (2) above, any exchange of a Global Security
for other Securities may be made in whole or in part, and all Securities
issued in exchange for a Global Security or any portion thereof shall be
registered in such names as the Depository for such Global Security shall
direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 304, 306, 906 or
1107 or otherwise, shall be authenticated and delivered in the form of, and
shall be, a Global Security, unless such Security is registered in the name
of a Person other than the Depository for such Global Security or a nominee
thereof.
All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee)
be duly endorsed, or be accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed, by
the Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided in the Securities to be transferred or
exchanged, no service charge shall be made for any registration of transfer
or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities,
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other than exchanges pursuant to Section 304, 906 or 1107 not involving any
transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series, or any Tranche thereof,
during a period beginning at the opening of business 15 days before the day
of the mailing of a notice of redemption of Securities of that series or
Tranche selected for redemption under Section 1103 and ending at the close of
business on the day of such mailing, or (ii) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and make available
for delivery in exchange therefor a new Security of the same series and
Tranche, and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and make available for delivery, in
lieu of any such destroyed, lost or stolen Security, a new Security of the
same series and Tranche, and of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued hereunder.
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The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or Tranche thereof, interest on any
Security which is payable, and is punctually paid or duly provided for, on
any Interest Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest at the office or
agency of any Paying Agent therefor; provided however, that unless otherwise
specified as contemplated by Section 301 with respect to the Securities of
any series, or any Tranche thereof, interest on any Security shall be paid by
check mailed to the address of the Person entitled thereto as such address
appears on the Security Register.
Any interest on any Security of any series, or Tranche thereof,
which is payable, but is not punctually paid or duly provided for, on any
Interest Payment Date (herein called "DEFAULTED INTEREST") shall forthwith
cease to be payable to the Holder on the relevant Regular Record Date by
virtue of having been such Holder, and such Defaulted Interest may be paid by
the Company, at its election in each case, as provided in Clause (1) or (2)
below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities of such series or Tranche
thereof (or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series or any Tranche
thereof 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 Section 307 provided. Thereupon the Trustee shall fix
a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the date
of the proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at
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the expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Securities of such series or
any Tranche thereof at his address as it appears in the Security Register,
not less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Securities of such series or any Tranche
thereof (or their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer be
payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series, or any Tranche thereof, in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which such Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this Section 307, such manner
of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Security is registered as the
owner of such Security for the purpose of receiving payment of principal of
(and premium, if any) and (subject to Section 307) interest, if any, on such
Security and for all other purposes whatsoever, whether or not such Security
be overdue, and neither the Company, the Trustee nor any agent of the Company
or the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee or any agent of the Company or the
Trustee shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interest of a Security in global form, or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interest.
Notwithstanding the foregoing, with respect to any Security in global form,
nothing herein shall prevent the Company or the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification, proxy
or other authorization furnished by
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any Depository (or its nominee), as a Holder, with respect to such Security
in global form or impair, as between such Depository and owners of beneficial
interests in such Security in global form, the operation of customary
practices governing the exercise of the right of such Depository (or its
nominee) as holder of such Security in global form.
SECTION 309. CANCELLATION.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by
the Trustee. No Securities shall be authenticated in lieu of or in exchange
for any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities shall be held by the
Trustee and shall be returned to the Company upon written request.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, or any Tranche thereof, interest, if any, on the
Securities of each series shall be computed on the basis of a 360 day year
consisting of twelve 30-day months and, with respect to any period less than
a full calendar month, on the basis of the actual number of days elapsed
during such period in relation to the deemed 30 days of such month.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall cease to be of further effect (except as to
any surviving rights of registration of transfer or exchange of Securities
herein expressly provided for or in the form of Security for such series or
Tranche), when the Trustee, upon Company Request and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
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(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 306 and (ii) Securities for
whose payment money or U.S. Government Obligations has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as provided
in Section 1008) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited with
the Trustee as trust funds in trust for the purpose (a) money in the
necessary amount or (b) U.S. Government Obligations, the principal of and the
interest on which when due, and without any regard to reinvestment thereof,
in the opinion of an independent accountant, and, in the opinion of the
officers of the Company executing an Officer's Certificate to that effect,
will provide moneys which, together with the moneys, if any, deposited with
or held by the Trustee, shall be sufficient to pay when due the principal of,
premium, if any, and interest due and to become due on said Securities or
portions thereof on the Redemption Date or the Stated Maturity thereof, as
the case may be, in trust to pay and discharge the entire indebtedness on
such Securities not theretofore delivered to the Trustee for cancellation,
for principal (and premium, if any) and interest, if any, to the date of such
deposit (in the case of Securities which have become due and payable) or the
Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for herein relating to the satisfaction and discharge of
this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 607, the
obligations of the Company to any Authenticating
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Agent under Section 614 and, if money or U.S. Government Obligations shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1)
of this Section, the obligations of the Trustee under Section 402 and the
last paragraph of Section 1008 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1008,
all money or U.S. Government Obligations deposited with the Trustee pursuant
to Section 401 shall be held in trust and applied by it, in accordance with
the provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto,
of the principal (and premium, if any) and interest, if any, for whose
payment such money or U.S. Government Obligations has been deposited with or
received by the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"EVENT OF DEFAULT," wherever used herein with respect to the
Securities of any series means any one of the following events:
(1) failure to pay interest on any Security of that series when
such interest becomes due and payable and such failure continues for a period
of 30 days and the time for payment of such interest has not been extended;
provided, however that if the Company is permitted by the terms of the
Securities of the applicable series to defer the payment in question, the
date on which such payment is due and payable shall be the date on which the
Company is required to make payment following such deferral, if such deferral
has been elected pursuant to the terms of the Securities of that series; or
(2) failure to pay principal of (or premium, if any, on) any
Security of that series when the same becomes due and payable at Maturity
(including redemptions under Article Eleven but excluding any failure by the
Company to deposit money with the Trustee in connection with any redemption
at the option of the Company) and the time for payment of such principal (or
premium, if any), has not been extended; provided, however, that if the
Company is permitted by the terms of the Securities of the applicable series
to defer the payment in question, the date on which such payment is due and
payable shall be the date on which the Company is required to make payment
following such deferral, if such deferral has been elected pursuant to the
terms of the Securities of that series; or
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(3) the Company fails to observe or perform any of its other
covenants, warranties or agreements in the Securities of that series or in
this Indenture (other than a covenant, agreement or warranty a default in
whose performance or whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this Indenture solely for
the benefit of series of Securities other than that series), and the failure
to observe or perform continues for the period and after the notice specified
in the last paragraph of this Section; or
(4) the Company pursuant to or within the meaning of any
Bankruptcy Law (A) commences a voluntary case or proceeding under any
Bankruptcy Law with respect to itself, (B) consents to the entry of a
judgment, decree or order for relief against it in an involuntary case or
proceeding under any Bankruptcy Law, (C) consents to or acquiesces in the
institution of bankruptcy or insolvency proceedings against it, (D) applies
for, consents to or acquiesces in the appointment of or taking possession by
a Custodian of the Company or for any material part of its property, (E)
makes a general assignment for the benefit of its creditors, (F) admits in
writing its inability to pay its debts generally as they become due, or (G)
takes any corporate action in furtherance of or to facilitate, conditionally
or otherwise, any of the foregoing; or
(5) (i) a court of competent jurisdiction enters a judgment,
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any Bankruptcy Law which shall (A) approve as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition in respect of the Company, (B) appoint a Custodian of the Company
or for any material part of its property or (C) order the winding-up or
liquidation of its affairs, and such judgment, decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or (ii) any
bankruptcy or insolvency petition or application is filed, or any bankruptcy
or insolvency proceeding is commenced against the Company and such petition,
application or proceeding is not dismissed within 60 days; or (iii) a warrant
of attachment is issued against any material portion of the property of the
Company which is not released within 60 days of service; or
(6) failure to pay any installment of interest, when the same
shall become due and payable, on any other series of Securities issued or
hereafter issued pursuant to this Indenture and such failure shall continue
for a period of thirty days, or failure to pay the principal of (or premium,
if any, on) any such other series of Securities when the same shall become
due and payable at Maturity (including upon redemption but excluding any
failure by the Company to deposit money with the Trustee in connection with
any redemption at the option of the Company), and the time for payment of
such interest or principal (or premium,
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if any) shall not have been extended; provided, however, that if the Company
is permitted by the terms of the Securities of the applicable series to defer
the payment in question, the date on which such payment is due shall be the
date on which the Company is required to make payment following such
deferral, if such deferral has been elected pursuant to the terms of the
Securities of that series; or
(7) any other Event of Default provided with respect to Securities
of that series as contemplated by Section 301.
A Default under clause (3) above is not an Event of Default until
the Trustee or the Holders of at least 25% in aggregate principal amount of
the Outstanding Securities of that series notify the Company in writing of
the Default and the Company does not cure the Default within 60 days after
receipt of the notice. The notice must specify the Default, demand that it
be remedied and state that the notice is a "Notice of Default". When a
Default under clause (3) above is cured within such 60-day period, it ceases.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Securities of any series,
(other than an Event of Default specified in clause (4) or (5) of Section
501) occurs and is continuing, the Trustee by notice in writing to the
Company, or the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of the affected series by notice in writing to the
Company and the Trustee, may declare the unpaid principal of and accrued
interest, if any, to the date of acceleration (or, if the Securities of that
series, or any Tranche thereof, are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of that
series) on all the Outstanding Securities of that series, to be due and
payable immediately and, upon any such declaration, the Outstanding
Securities of that series (or specified principal amount) shall become and be
immediately due and payable.
If an Event of Default specified in clause (4) or (5) of Section
501 occurs, all unpaid principal of and accrued interest, if any, on the
Outstanding Securities of all series (or specified principal amount) shall
ipso facto become and be immediately due and payable without any declaration
or other act on the part of the Trustee or any Holder.
The Holders of a majority in principal amount of the Outstanding
Securities of the affected series (subject to, in the case of any series of
Securities held as trust assets of a PSCo Trust, obtaining the consent of the
holders of the Trust Securities of such PSCo Trust as may be required by the
applicable declaration of such PSCo Trust) by notice to the Trustee may
rescind an acceleration and its consequences if (i)
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all existing Events of Default, other than the nonpayment of the principal
and interest of the Securities of that series that has become due solely by
such declaration of acceleration, have been cured or waived, (ii) to the
extent the payment of such interest is lawful, interest on overdue
installments of interest and overdue principal that has become due otherwise
than by such declaration of acceleration have been paid, (iii) the rescission
would not conflict with any judgment or decree of a court of competent
jurisdiction and (iv) all payments due to the Trustee and any predecessor
Trustee under Section 607 have been made.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if:
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, if any, and, to
the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal (and premium, if any) and on any overdue
interest, at the rate or rates prescribed therefor in such Securities, and,
in addition thereto, such further amount as shall be sufficient to cover the
reasonable costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other
obligor upon such Securities, wherever situated.
If an Event of Default with respect to any Securities occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders thereof by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce
any such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power granted
herein, or to secure any other proper remedy.
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SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other obligor
upon the Securities or the property of the Company or of such other obligor
or their creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(i) to file and prove a claim for the whole amount of principal
(and premium, if any) and interest, if any, owing and unpaid in respect of
the Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agent and counsel) and of
the Holders allowed in such judicial proceedings, and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under
Section 607.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
reasonable
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compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article in
respect of the Securities of any series shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or premium, if any) or
interest, if any, upon presentation of the Securities in respect of which
moneys have been collected and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section
607 applicable to such series;
Second: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest, if any, on the Securities in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Securities of such series for principal (and premium,
if any) and interest, if any, respectively; and
Third: To the Company.
The Trustee may fix a record date and payment date for any payment
to Holders pursuant to this Section 506. At least fifteen (15) days before
such record date, the Trustee shall mail to each Holder and the Company a
notice that states the record date, the payment date and the amount to be
paid.
SECTION 507. LIMITATION ON SUITS.
No Holder of any series of Securities shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of the affected series shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
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(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of the affected series; it
being understood and intended that no one or more of Holders of Securities of
any affected series shall have any right in any manner whatever by virtue of,
or by availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other of such Holders, or to obtain or to seek to
obtain priority or preference over any other of such Holders or to enforce
any right under this Indenture, except in the manner herein provided and for
the equal and ratable benefit of all Holders of Securities of the affected
series.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM
AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder
of any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest, if any, on such Security on the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder. Notwithstanding any other provision of this Indenture, if the
Securities of a series are then held by a PSCo Trust, each holder of
Preferred Securities of such PSCo Trust shall have the right to bring suit
directly against the Company for the enforcement of payment to such holder in
respect of Securities of such series in a principal amount equal to the
aggregate liquidation amount of the Preferred Securities of such holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding has been instituted.
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SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to exercise
any right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the
case may be.
SECTION 512. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the Outstanding
Securities of any affected series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series, provided that:
(1) such direction shall not be in conflict with any rule of law
or with this Indenture;
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; and
(3) subject to Section 601, the Trustee need not take any action
which might involve the Trustee in personal liability or be unduly
prejudicial to the Holders not joining therein.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any affected series (or, if the affected series of
Securities is held by a PSCo Trust, the holders of at least a majority of the
aggregate liquidation amount of the Preferred Securities of such PSCo Trust)
may by written notice to the Trustee on behalf of the Holders of all the
Securities of such series waive any Default or Event of Default
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with respect to such series and its consequences, except a Default or Event
of Default
(1) in respect of the payment of the principal of (or premium, if
any) or interest, if any, on any Security of such series, or
(2) in respect of a covenant or other provision hereof which under
Article Nine cannot be modified or amended without the consent of the Holder
of each Outstanding Security of such series affected.
Upon any such waiver, such Default or Event of Default shall cease
to exist and shall be deemed to have been cured, for every purpose of this
Indenture and the Securities of such series; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to
any suit instituted by the Company, to any suit instituted by the Trustee, to
any suit instituted by any Holder, or group of Holders, holding in the
aggregate more than 10% in principal amount of the Outstanding Securities, or
to any suit instituted by any Holder for the enforcement of the payment of
the principal of (or premium, if any) or interest, if any, on any Security on
or after the Stated Maturity or Maturities expressed in such Security (or, in
the case of redemption, on or after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES OF THE TRUSTEE.
The Trustee hereby accepts the Trusts herein created. The Trustee
further undertakes and agrees, as follows:
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(a) Except during the continuance of an Event of Default, the
Trustee's duties and responsibilities under this Indenture shall be governed
by Section 315(a) of the Trust Indenture Act.
(b) In case an Event of Default has occurred and is continuing,
and is known to the Trustee, the Trustee shall exercise the rights and powers
vested in it by this Indenture, and shall use the same degree of care and
skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(c) None of the provisions of Section 315(d) of the Trust
Indenture Act shall be excluded from this Indenture.
SECTION 602. NOTICE OF DEFAULTS.
Within 30 days after the occurrence of any Default or Event of
Default with respect to any Securities of any series, the Trustee shall give
to all Holders of Securities of that series, as their names and addresses
appear in the Security Register, notice of such Default or Event of Default
known to the Trustee, unless such Default or Event of Default shall have been
cured or waived; provided, however, that, except in the case of a Default or
Event of Default in the payment of the principal of (or premium, if any) or
interest, if any, on any Security or in the payment of any sinking fund
installment with respect to Securities, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the
executive committee or directors or Responsible Officers of the Trustee in
good faith determine that the withholding of such notice is in the interest
of the Holders of the affected Securities.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of the Trust Indenture Act:
(a) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein
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specifically prescribed) may, in the absence of bad faith on its part, rely
upon an Officer's Certificate;
(d) the Trustee may consult with counsel of its selection and the
written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee security or indemnity to its
reasonable satisfaction against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction;
(f) prior to the occurrence of an Event of Default with respect to
the Securities of any series and after the curing or waiving of all such
Events of Default which may have occurred, the Trustee shall not be bound to
make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, approval or other paper or document, or the books
and records of the Company, unless requested in writing to do so by the
Holders of a majority in principal amount of the Outstanding Securities of
any series; 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 not, in the opinion of the Trustee,
reasonably assured to the Trustee by the security afforded to it by the terms
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 investigation shall be paid by the Company
or, if paid by the Trustee, shall be repaid by the Company upon demand;
(g) the trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents or attorneys and the Trustee shall
not be responsible for any misconduct or negligence on the part of any agent
or attorney appointed with due care by it hereunder; and
(h) the Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of its rights or powers.
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SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the
Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations
as to the validity or sufficiency of this Indenture or of the Securities.
Neither the Trustee nor any Authenticating Agent shall be accountable for the
use or application by the Company of Securities or the proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or
any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 608 and 613, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder (including amounts
held by the Trustee as Paying Agent) need not be segregated from other funds
except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as
otherwise agreed upon in writing with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time such compensation
for all services rendered by it hereunder as the parties shall agree
from time to time (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability, damage, claim or expense, including taxes (other than
taxes based upon or
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determined or measured by the income of the Trustee), incurred without
gross negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(4) or Section 501(5), the
expenses (including the reasonable charges and expenses of its counsel) and
the compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency
or other similar law.
The provisions of this Section 607 shall survive the discharge of
this Indenture.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
The Trustee shall be disqualified only where such disqualification
is required by Section 310(b) of the Trust Indenture Act. Nothing shall
prevent the Trustee from filing with the Commission the application referred
to in the second to last paragraph of Section 310(b) of the Trust Indenture
Act.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under Section 310(a)(1) of the Trust Indenture Act
having a combined capital and surplus of at least $50,000,000 subject to
supervision or examination by federal or State authority. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of said supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. Neither the
Company nor any Person directly or indirectly controlling, controlled by, or
under common control with the Company may serve as Trustee. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
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(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee
and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of the Trust
Indenture Act after written request therefor by the Company or by any
Holder who has been a BONA FIDE Holder of a Security for at least six
months; or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by
any such Holder of a Security who has been a BONA FIDE Holder of a Security
for at least six months; or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 315(e) of
the Trust Indenture Act, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities and the appointment of
a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that
any such successor Trustee may be appointed with respect to the Securities of
one or more or all of such series and that at any time there shall be only
one Trustee with respect to the Securities of any particular series) and
shall comply with the
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applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon
its acceptance of such appointment in accordance with the applicable
requirements of Section 611, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the successor Trustee
appointed by the Company with respect to such Securities. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona fide Holder of
a Security of such series for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any
series by mailing written notice of such event by first-class mail, postage
prepaid, to all Holders of Securities of such series as their names and
addresses appear in the Security Register. Each notice shall include the
name of the successor Trustee with respect to the Securities of such series
and the address of its Corporate Trust Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee; but, on the request of the Company or the successor Trustee, such
retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto
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wherein each successor Trustee shall accept such appointment and which (1)
shall contain such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to
all Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such Trustee;
and upon the execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, 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 the Trust Indenture Act.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise
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qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto. In
case any Securities shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or consolidation
to such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship listed in Section 311(b) of the
Trust Indenture Act. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the extent indicated
therein.
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
At any time when any of the Securities remain Outstanding the
Trustee may appoint an Authenticating Agent or Agents with respect to one or
more series of Securities, or any Tranche thereof, which shall be authorized
to act on behalf of, and subject to the direction of, the Trustee to
authenticate Securities of such series or Tranche issued upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
306, and Securities so authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed
to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf
of the Trustee by an Authenticating Agent. Each Authenticating Agent shall
be acceptable to the Company and shall at all times be a corporation
organized and doing business under the laws of the United States of America,
any State thereof or the District of Columbia, authorized under such laws to
act as Authenticating Agent, having a combined capital and surplus of not
less than $50,000,000 and subject to supervision or examination by federal or
State authority. If such Authenticating Agent publishes reports of condition
at least annually, pursuant to law or to the requirements of said supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
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Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series, or Tranche thereof, with respect to which such
Authenticating Agent will serve, as their names and addresses appear in the
Security Register. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series or any Tranche
thereof, is made pursuant to this Section, the Securities of such series or
Tranche may have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
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FORM OF AUTHENTICATING AGENT'S
CERTIFICATE OF AUTHENTICATION
Dated:_________________
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
----------------------------------------
AS TRUSTEE
By
--------------------------------------
AS AUTHENTICATING AGENT
----------------------------------------
AUTHORIZED SIGNATORY
If all of the Securities of a series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested by the Company in writing (which writing
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel), shall appoint, in accordance with this Section and in accordance with
such procedures as shall be acceptable to the Trustee, an Authenticating Agent
having an office in a Place of Payment designated by the Company with respect to
such series of Securities.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than January 15 and July 15 in each
year, a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders as of the preceding December 15 or June 15, as the
case may be; and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
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PROVIDED, HOWEVER, that so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as "applicants")
apply in writing to the Trustee, and furnish to the Trustee reasonable proof
that each such applicant has owned a Security for a period of at least six
months preceding the date of such application, and such application states that
the applicants desire to communicate with other Holders with respect to their
rights under this Indenture or under the Securities and is accompanied by a copy
of the form of proxy or other communication which such applicants propose to
transmit, then the Trustee shall, within five Business Days after the receipt of
such application, at its election, either
(i) afford such applicants access to the information preserved
at the time by the Trustee in accordance with Section 702(a); or
(ii) inform such applicants as to the approximate number of
Holders whose names and addresses appear in the information preserved at
the time by the Trustee in accordance with Section 702(a), and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder whose name and address appears in the
information preserved at the time by the Trustee in accordance with Section
702(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
interest of the Holders or would be in violation of applicable law. Such
written statement shall specify the basis of such opinion. If the Commission,
after opportunity for a hearing upon the objections specified in the
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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 objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all
such Holders with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with Section 702(b), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 702(b).
SECTION 703. REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year commencing with the year
1999, the Trustee shall transmit by mail to all Holders of Securities as
provided in Section 313(c) of the Trust Indenture Act, a brief report dated as
of May 15, if required by and in compliance with Section 313(a) of the Trust
Indenture Act.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
SECTION 704. REPORTS BY COMPANY.
The Company shall:
(1) file with the Trustee, within 30 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the Exchange
Act; or, if the Company is not required to file information, documents or
reports pursuant to either of said Sections, then it shall file with the
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary
and periodic information, documents and reports which may be required
pursuant to
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Section 13 of the Exchange Act in respect of a security listed and
registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations;
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, (a) concurrently with furnishing the same
to its stockholders, the Company's annual report to stockholders,
containing certified financial statements, and any other financial reports
which the Company generally furnishes to its stockholders, and (b) within
30 days after the filing thereof with the Trustee, such summaries of any
other information, documents and reports required to be filed by the
Company pursuant to paragraphs (1) and (2) of this Section as may be
required by rules and regulations prescribed from time to time by the
Commission; and
(4) furnish to the Trustee, on or before May 1 of each year, a brief
certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of the
Company's compliance with all conditions and covenants under this
Indenture. For purposes of this paragraph, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture. Such certificate need not comply with
Section 102.
ARTICLE EIGHT
CONSOLIDATION, MERGER, LEASE, SALE OR TRANSFER
SECTION 801. WHEN COMPANY MAY MERGE, ETC.
The Company shall not consolidate with, or merge with or into any
other corporation (whether or not the Company shall be the surviving
corporation), or sell, assign, transfer or lease all or substantially all of its
properties and assets as an entirety or substantially as an entirety to any
Person or group of affiliated Persons, in one transaction or a series of related
transactions, unless:
(1) either the Company shall be the continuing Person or the Person
(if other than the Company) formed by such consolidation or with which or
into which the Company is
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merged or the Person (or group of affiliated Persons) to which all or
substantially all the properties and assets of the Company as an entirety
or substantially as an entirety are sold, assigned, transferred or leased
shall be a corporation (or constitute corporations) organized and existing
under the laws of the United States of America or any State thereof or the
District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of the Company under the
Securities and this Indenture; and
(2) immediately before and after giving effect to such transaction or
series of related transactions, no Event of Default, and no Default, shall
have occurred and be continuing.
SECTION 802. OPINION OF COUNSEL.
The Company shall deliver to the Trustee prior to the proposed
transaction(s) covered by Section 801 an Officer's Certificate and an Opinion of
Counsel stating that the transaction(s) and such supplemental indenture comply
with this Indenture and that all conditions precedent to the consummation of the
transaction(s) under this Indenture have been met.
SECTION 803. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation by the Company with or merger by the Company
into any other corporation or any lease, sale, assignment, or transfer of all or
substantially all of the property and assets of the Company in accordance with
Section 801, the successor corporation formed by such consolidation or into
which the Company is merged or the successor corporation or affiliated group of
corporations to which such lease, sale, assignment, or transfer is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
corporation or corporations had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor corporation or
corporations shall be relieved of all obligations and covenants under this
Indenture and the Securities and in the event of such conveyance or transfer,
except in the case of a lease, any such predecessor corporation may be dissolved
and liquidated.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without notice to or the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or one or more specified series of Securities or one or more
specified Tranches thereof (and if such covenants are to be for the benefit
of fewer than all series of Securities or fewer than all Securities of a
Series, stating that such covenants are expressly being included solely for
the benefit of such series or one or more Tranches of such series) or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default with respect to all or
one or more series of Securities; or
(4) to add or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons; or
(5) 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 Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be
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necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of
Section 611(b); or
(9) to cure any ambiguity, defect or inconsistency or to correct or
supplement any provision herein which may be defective or inconsistent with
any other provision herein; or
(10) to make any change to the provisions hereof or to add other
provisions with respect to matters or questions arising under this
Indenture; provided that such changes or additions shall not materially
adversely affect the interests of the Holders of Securities of any series.
Without limiting the generality of the foregoing, if the Trust
Indenture Act as in effect at the date of the original execution and delivery of
this Indenture or at any time thereafter shall be amended and
(x) if any such amendment shall require one or more changes to
any provisions hereof or the inclusion herein of any additional
provisions, or shall by operation of law be deemed to effect such
changes or incorporate such provisions by reference or otherwise this
Indenture shall be deemed to have been amended so as to conform to
such amendment to the Trust Indenture Act, and the Company and the
Trustee may, without the consent of any Holders, enter into an
indenture supplemental hereto to evidence such amendment hereof; or
(y) if any such amendment shall permit one or more changes to,
or the elimination of, any provisions hereof which, at the date of the
original execution and delivery hereof or at any time thereafter, are
required by the Trust Indenture Act to be contained herein or are
contained herein to reflect any provisions of the Trust Indenture Act
as in effect at such date, this Indenture shall be deemed to have been
amended to effect such changes or elimination, and the Company and the
Trustee may, without the consent of any Holders, enter into an
indenture supplemental hereto to evidence such amendment hereof.
Upon request of the Company, accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon receipt
by the Trustee of the documents described in (and subject to the last sentence
of) Section 903, the Trustee shall join with the Company in the execution of any
supplemental indenture authorized or permitted by the terms of this Indenture.
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SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
Subject to the provisions of Section 901, with the consent of the
Holders of not less than a majority in aggregate principal amount of the
Securities of all series then Outstanding under this Indenture, considered as
one class, by Act of said Holders delivered to the Company and the Trustee, the
Company and the Trustee may enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture; provided, however, that if
there shall be Securities of more than one series Outstanding hereunder and if a
proposed supplemental indenture shall directly affect the rights of the Holders
of Securities of one or more, but fewer than all, of such series, then the
consent only of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series so directly affected, considered as one
class, shall be required; and provided, further, that if the Securities of any
series shall have been issued in more than one Tranche and if the proposed
supplemental indenture shall directly affect the rights of the Holders of
Securities of one or more, but fewer than all, of such Tranches, then the
consent only of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all Tranches so directly affected, considered as one
class, shall be required; and provided, further, that no such supplemental
indenture shall without the consent of each Holder affected thereby:
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof or extend the time for payment thereof,
or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of acceleration
of the Maturity thereof pursuant to Section 502, or change any Place of
Payment where, or the coin or currency in which, the principal of any
Security or any premium or interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date) or modify the provisions of the Indenture with respect to
the subordination of the Securities in a manner adverse to any Holder;
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver of compliance with certain provisions of this Indenture or
Defaults or Events of Default hereunder and their consequences provided for
in this Indenture; or
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(3) change the redemption provisions (including Article Eleven)
hereof in a manner adverse to such Holder; or
(4) modify any of the provisions of this Section or Section 513,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby;
provided, however, that this clause shall not be deemed to require the
consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section, or the deletion of this
proviso, in accordance with the requirements of Sections 611(b) and 901(8),
provided that, in the case of Outstanding Securities of a series then held by a
PSCo Trust, no such supplemental indenture shall adversely affect the holders of
the Preferred Securities of such PSCo Trust without the prior consent of each
holder of such Preferred Securities.
A supplemental indenture which changes or eliminates any covenant or other
provisions of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities or one or more Tranches
thereof, or which modifies the rights of the Holders of Securities of such
series, or any Tranche thereof, with respect to such covenant or other
provision, shall be deemed not to affect the rights under this Indenture of the
Holders of Securities of any other series or Tranche.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
The Trustee shall sign any supplemental indenture authorized pursuant
to this Article, subject to the last sentence of this Section 903. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying upon, an Officer's
Certificate and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
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SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENTS OF SECURITIES.
The Company will duly and punctually pay the principal of (and
premium, if any) and interest, if any, on the Securities of each series in
accordance with the terms of such Securities and this Indenture, and will duly
comply with all the other terms, agreements and conditions contained in, or made
in the Indenture for the benefit of, the Securities of such series or any
Tranche thereof.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain an office or agency in each Place of Payment
where Securities of each series, or any Tranche thereof, may be surrendered for
registration of transfer or exchange or for presentation for payment, and where
notices and demands to or upon the Company in respect of such Securities and
this Indenture may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in location, of such office or
agency. If at any time the Company
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shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the address of the Trustee as
set forth in Section 105 hereof.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series, or any Tranche
thereof, may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
The Company hereby initially designates the office of The Bank of New
York as such office of the Company.
SECTION 1003. CORPORATE EXISTENCE.
Subject to Article 8 hereof, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its corporate
existence.
SECTION 1004. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge, or cause to be paid or discharged,
before the same shall become delinquent, (1) all material taxes, assessments and
governmental charges levied or imposed upon the Company or upon the income,
profits or property of the Company, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a material lien
upon the property of the Company; provided, however, that the Company shall not
be required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
SECTION 1005. COMPLIANCE CERTIFICATES.
(a) The Company shall deliver to the Trustee within 90 days after the
end of each fiscal year of the Company (which fiscal year currently ends on
December 31), an Officer's Certificate stating whether or not the signer
knows of any Default or Event of Default by the Company that occurred prior
to the end of the fiscal year and is then continuing. If the signer does
know of such a Default or Event of Default, the certificate shall describe
each such Default or Event of Default and its status and the specific
section or sections of this Indenture in connection with which such Default
or Event of Default has occurred. The Company shall also promptly notify
the Trustee in writing should the Company's fiscal year be changed so that
the end thereof is on any date other than the date on which the
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Company's fiscal year currently ends. The certificate need not comply
with Section 102 hereof.
(b) The Company shall deliver to the Trustee forthwith upon becoming
aware of a Default or Event of Default (but in no event later than 10 days
after the occurrence of each Default or Event of Default that is
continuing), an Officer's Certificate setting forth the details of such
Default or Event of Default and the action that the Company proposes to
take with respect thereto and the specific section or sections of this
Indenture in connection with which such Default or Event of Default has
occurred.
SECTION 1006. COMMISSION REPORTS.
(a) The Company shall file with the Trustee, within 30 days after it
files them with the Commission, copies of the quarterly and annual reports
and of the information, documents, and other reports (or copies of such
portions of any of the foregoing as the Commission may by rules and
regulations prescribe) which the Company is required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act. If the
Company is not subject to the requirement of such Section 13 or 15(d) of
the Exchange Act, the Company shall file with the Trustee, within 30 days
after it would have been required to file such information with the
Commission, financial statements, including any notes thereto and, with
respect to annual reports, an auditors' report by an accounting firm of
established national reputation and a "Management's Discussion and Analysis
of Financial Condition and Results of Operations," both comparable to that
which the Company would have been required to include in such annual
reports, information, documents or other reports if the Company had been
subject to the requirements of such Sections 13 or 15(d) of the Exchange
Act. The Company also shall comply with the other provisions of Section
314(a) of the Trust Indenture Act.
(b) So long as the Securities remain outstanding, the Company shall
cause its annual report to stockholders and any other financial reports
furnished by it to stockholders generally, to be mailed to the Holders at
their addresses appearing in the register of Securities maintained by the
Security Registrar in each case at the time of such mailing or furnishing
to stockholders. If the Company is not required to furnish annual or
quarterly reports to its stockholders pursuant to the Exchange Act, the
Company shall cause its financial statements, including any notes thereto
and, with respect to annual reports, an auditors' report by an accounting
firm of established national reputation and a "Management's Discussion and
Analysis of Financial Condition and Results of Operations," to be so filed
with the Trustee and mailed to the Holders within 90 days after the end of
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each of the Company's fiscal years and within 45 days after the end of each
of the first three quarters of each fiscal year.
(c) The Company shall provide the Trustee with a sufficient number of
copies of all reports and other documents and information that the Company
may be required to deliver to the Holders under this Section 1007.
SECTION 1007. WAIVER OF STAY, EXTENSION OR USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim, and will actively resist any and all efforts to be compelled to take the
benefit or advantage of, any stay or extension law or any usury law or other
law, which would prohibit or forgive the Company from paying all or any portion
of the principal of and/or interest, if any, on the Securities as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) the Company hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
SECTION 1008. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, or any Tranche thereof, it will, on or
before each due date of the principal of (and premium, if any) or interest, if
any, on any of the Securities of that series, or any Tranche thereof, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal (and premium, if any) or interest, if any, so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, or any Tranche thereof, it will, prior to each due date of
the principal of (and premium, if any) or interest, if any, on any Securities of
that series, or any Tranche thereof, deposit with a 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, if any, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of its action or
failure to so act.
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The Company will cause each Paying Agent for any series of Securities,
or any Tranche thereof (other than the Trustee) to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest, if any, on Securities of that series, or any
Tranche thereof, in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of as
herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series, or any Tranche thereof)
in the making of any payment of principal (and premium, if any) or
interest, if any, on the Securities of that series, or any Tranche thereof;
and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest, if any, on any Security of any series and remaining unclaimed
for two years after such principal (and premium, if any) or interest, if any,
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee of such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in New York, New York, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the
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date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Securities of any series, or any Tranche thereof, which are redeemable
before their Stated Maturity shall be redeemable in accordance with their terms
and (except as otherwise specified as contemplated by Section 301 for Securities
of any series, or any Tranche thereof) in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election
of the Company of fewer than all the Securities of any series, or any Tranche
thereof, the Company shall, at least 45 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date and of the principal
amount of Securities to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officer's Certificate evidencing
compliance with such restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If fewer than all the Securities of any series, or any Tranche
thereof, are to be redeemed, and if at the time the Company shall have given
notice of redemption to the Trustee in accordance with Section 1102, there shall
not be on file with the Trustee and in effect a Holders' Redemption Agreement,
as hereinafter defined and the particular Securities to be redeemed shall be
selected by the Trustee, from the Outstanding Securities of such series or
Tranche not previously called for redemption, substantially pro rata, by lot or
by any other method as the Trustee considers fair and appropriate and that
complies with the requirements of the principal national securities exchange, if
any, on which such Securities are listed, and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or Tranche or any integral multiple
thereof) of the principal amount of Securities of such series or Tranche of a
denomination larger than the minimum authorized denomination for Securities of
that series or Tranche; provided that in case the Securities of such series or
Tranche have different terms and maturities, the
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Securities to be redeemed shall be selected by the Company and the Company
shall give notice thereof to the Trustee; provided however, that if, as
indicated in an Officer's Certificate, the Company shall have offered to
purchase all or any principal amount of the Securities then Outstanding of
any series, or any Tranche thereof, and fewer than all of such Securities as
to which such offer was made shall have been tendered to the Company for such
purchase, the Trustee, if so directed by Company Order, shall select for
redemption all or any principal amount of such Securities which have not been
so tendered.
If at the time the Company shall have given notice of redemption to
the Trustee in accordance with Section 1102, there shall be on file with the
Trustee and in effect a Holders' Redemption Agreement, as hereinafter defined,
then the Trustee shall select, in accordance with the provisions of said
Holders' Redemption Agreement, the Securities or parts thereof to be redeemed.
For the purposes of this Indenture, the term "Holders' Redemption
Agreement" shall mean an agreement, reasonably satisfactory to the Trustee,
executed as provided in this Section, which provides for the method to be
followed by the Trustee in selecting Securities or parts of Securities for
redemption out of any funds held by the Trustee to be applied to such
redemption. A Holders' Redemption Agreement may be made with respect to a
single series of Securities, or Tranche thereof, in which case it shall be
executed by or on behalf of the Holders of all Outstanding Securities of such
series or Tranche, or it may be made with respect to all Outstanding Securities,
in which case it shall be executed by or on behalf of the Holders of all
Securities Outstanding hereunder.
The Trustee shall promptly notify the Company and the Securities
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of the Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in part,
to the portion of the principal amount of such Securities which has been or is
to be redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
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(1) the Redemption Date;
(2) the Redemption Price;
(3) if fewer than all the Outstanding Securities of any series or
Tranche are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be
redeemed;
(4) that on the Redemption Date the Redemption Price will be come due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon, if any, will cease to accrue on and after said date;
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price;
(6) that the redemption is for a sinking or other fund, if such is
the case;
(7) the CUSIP number, if any, of the Securities to be redeemed; and
(8) unless otherwise provided as to a particular series of Securities
or any Tranche thereof, if at the time of publication or mailing of any
notice of redemption the Company shall not have deposited with the Trustee
or Paying Agent and/or irrevocably directed the Trustee or Paying Agent to
apply, from money held by it available to be used for the redemption of
Securities, an amount in cash sufficient to redeem all of the Securities
called for redemption, including accrued interest, if any, to the
Redemption Date, such notice shall state that it is subject to the receipt
of the redemption moneys by the Trustee or Paying Agent before the
Redemption Date (unless such redemption is mandatory) and such notice shall
be of no effect unless such moneys are so received before such date.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company. Notice of mandatory
redemption of Securities shall be given by the Trustee in the name and at the
expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
Prior to 10:00 a.m., New York Time, on any Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1009) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment
Date) accrued interest, if any, on, all the Securities which are to be
redeemed on that date.
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SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, and the Company
having on or before the Redemption Date deposited with the Trustee (and/or
having irrevocably directed the Trustee to apply, from money held by it
available to be used for the redemption of Securities) an amount in cash
sufficient to redeem all of the Securities to be redeemed, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date such Securities
shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest, if any, to the
Redemption Date; provided, however, that installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Regular or Special Record Dates according
to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate, if any,
prescribed therefor in the Security.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be surrendered
at an office or agency of the Company at a Place of Payment therefor (with, if
the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing), and
the Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series and Tranche and Stated Maturity, of any authorized denomination
as requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so
surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series or any Tranche thereof, except as
otherwise specified as
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contemplated by Section 301 for Securities of such series, or Tranche.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series, or any Tranche thereof, is herein referred to
as a "MANDATORY SINKING FUND PAYMENT", and any payment in excess of such minimum
amount provided for by the terms of Securities of any series, or any Tranche
thereof, is herein referred to as an "OPTIONAL SINKING FUND PAYMENT". If
provided for by the terms of Securities of any series, or any Tranche thereof,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series, or any Tranche thereof, as provided for
by the terms of Securities of such series, or any Tranche thereof.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (1) may deliver Securities of a series, or Tranche (other
than any Securities previously called for redemption) and (2) may apply as a
credit Securities of a series or Tranche which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series or Tranche required
to be made pursuant to the terms of such Securities as provided for by the terms
of such series or Tranche thereof; PROVIDED that such Securities have not been
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not fewer than 45 days prior to each sinking fund payment date for any
series of Securities or any Tranche thereof, the Company will deliver to the
Trustee an Officer's Certificate specifying the amount of the next ensuing
sinking fund payment for that series or Tranche pursuant to the terms of that
series or Tranche, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series or Tranche pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such
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Securities shall be made upon the terms and in the manner stated in Sections
1106 and 1107.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. APPLICABILITY OF ARTICLE; COMPANY'S OPTION TO EFFECT DEFEASANCE
OR COVENANT DEFEASANCE.
Unless pursuant to Section 301 provision is made for the
inapplicability of either or both of (a) Defeasance of the Securities of a
series, or any Tranche thereof, under Section 1302 or (b) Covenant Defeasance
of the Securities of a series, or any Tranche thereof, under Section 1303,
then the provisions of such Section or Sections, as the case may be, together
with the other provisions of this Article, shall be applicable to the
Securities of such series or Tranche, and the Company may at its option by
Board Resolution, at any time, with respect to the Securities of such series,
or Tranche, elect to have either Section 1302 (unless inapplicable) or
Section 1303 (unless inapplicable) be applied to the Outstanding Securities
of such series or Tranche upon compliance with the applicable conditions set
forth below in this Article.
SECTION 1302. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the option provided in Section 1301
to defease the Outstanding Securities of a particular series or Tranche, the
Company shall be discharged from its obligations with respect to the
Outstanding Securities of such series or Tranche on the date the applicable
conditions set forth in Section 1304 are satisfied (hereinafter,
"DEFEASANCE"). Defeasance shall mean that the Company shall be deemed to
have paid and discharged the entire indebtedness represented by the
Outstanding Securities of such series or Tranche and to have satisfied all
its other obligations under such Securities and this Indenture insofar as
such Securities are concerned (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same); provided,
however, that the following rights, obligations, powers, trusts, duties and
immunities shall survive until otherwise terminated or discharged hereunder:
(A) the rights of Holders of Outstanding Securities of such series or Tranche
to receive, solely from the trust fund provided for in Section 1304, payments
in respect of the principal of (and premium, if any) and interest, if any, on
such Securities when such payments are due, (B) the Company's obligations
with respect to such Securities under Sections 304, 305, 306, 1002 and 1008,
(C) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (D) this Article. Subject to compliance with this Article, the
Company may exercise its option with respect to Defeasance under this Section
1302 notwithstanding the prior exercise of its option with respect to
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Covenant Defeasance under Section 1303 in regard to the Securities of such
series or Tranche.
SECTION 1303. COVENANT DEFEASANCE.
Upon the Company's exercise of the option provided in Section 1301
to obtain a Covenant Defeasance with respect to the Outstanding Securities of
a particular series, or Tranche thereof, the Company shall be released from
its obligations under this Indenture (except its obligations under Sections
304, 305, 306, 506, 509, 610, 1001, 1002, 1006, 1007 and 1008) with respect
to the Outstanding Securities of such series, or Tranche thereof, on and
after the date the applicable conditions set forth in Section 1304 are
satisfied (hereinafter, "COVENANT DEFEASANCE"). Covenant Defeasance shall
mean that, with respect to the Outstanding Securities of such series, or
Tranche thereof, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in this
Indenture (except its obligations under Sections 304, 305, 306, 506, 509,
610, 1001, 1002, 1005, 1007 and 1008), whether directly or indirectly by
reason of any reference elsewhere herein or by reason of any reference to any
other provision herein or in any other document, and such omission to comply
shall not constitute an Event of Default under Section 501(3) with respect to
Outstanding Securities of such series, and the remainder of this Indenture
and of the Securities of such series or Tranche shall be unaffected thereby.
SECTION 1304. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to Defeasance under Section
1302 and Covenant Defeasance under Section 1303:
(1) the Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the
requirements of Section 609 who shall agree to comply with the
provisions of this Article applicable to it), under the terms of an
irrevocable trust agreement in form and substance reasonably
satisfactory to such Trustee, as trust funds in trust for the purpose
of making the following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such
Securities, (A) Dollars in an amount, or (B) U.S. Government
Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will
provide, not later than the due date of any payment, money in an
amount, or (C) a combination thereof, in each case sufficient, after
payment of all federal, state and local taxes or other charges or
assessments in respect thereof payable by the Trustee, in the opinion
of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered
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to the Trustee, to pay and discharge, and which shall be applied by
the Trustee (or other qualifying trustee) to pay and discharge, (i)
the principal of (and premium, if any, on) and each installment of
principal of (and premium, if any) and interest, if any, on the
Outstanding Securities of such series or Tranche on the Stated
Maturity of such principal or installment of principal or interest
and (ii) any mandatory sinking fund payments or analogous payments
applicable to the Outstanding Securities of such series or Tranche on
the day on which such payments are due and payable in accordance with
the terms of this Indenture and of such Securities.
(2) No Default or Event of Default with respect to the
Securities of such series shall have occurred and be continuing on the
date of such deposit or shall occur as a result of such deposit, and
no Default or Event of Default under clause (4) or (5) of Section 501
hereof shall occur and be continuing, at any time during the period
ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period).
(3) Such deposit, Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under, any
other agreement or instrument to which the Company is a party or by
which it is bound.
(4) Such Defeasance or Covenant Defeasance shall not cause any
Securities of such series, or Tranche thereof, then listed on any
national securities exchange registered under the Exchange Act to be
delisted.
(5) In the case of an election with respect to Section 1302, the
Company shall have delivered to the Trustee either (A) a ruling
directed to the Trustee received from the Internal Revenue Service to
the effect that the Holders of the Outstanding Securities of such
series, or Tranche thereof, will not recognize income, gain or loss
for federal income tax purposes as a result of such Defeasance and
will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
Defeasance had not occurred or (B) an Opinion of Counsel, based on
such ruling or on a change in the applicable federal income tax law
since the date of this Indenture, in either case to the effect that,
and based thereon such opinion shall confirm that, the Holders of the
Outstanding Securities of such series, or Tranche thereof, will not
recognize income, gain or
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loss for federal income tax purposes as a result of such Defeasance
and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
Defeasance had not occurred.
(6) In the case of an election with respect to Section 1303, the
Company shall have delivered to the Trustee an Opinion of Counsel or a
ruling directed to the Trustee received from the Internal Revenue
Service to the effect that the Holders of the Outstanding Securities
of such series or Tranche thereof will not recognize income, gain or
loss for federal income tax purposes as a result of such Covenant
Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such Covenant Defeasance had not occurred.
(7) Such Defeasance or Covenant Defeasance shall be effected in
compliance with any additional terms, conditions or limitations which
may be imposed on the Company in connection therewith pursuant to
Section 301.
(8) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the Defeasance
under Section 1302 or the Covenant Defeasance under Section 1303 (as
the case may be) have been complied with.
SECTION 1305. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST.
Subject to the provisions of the last paragraph of Section 1008,
all money and Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee--collectively for
purposes of this Section 1305, the "Trustee") pursuant to Section 1304 in
respect of the Outstanding Securities of a particular series, or Tranche,
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities
of all sums due and to become due thereon in respect of principal (and
premium, if any) and interest, if any, but such money need not be segregated
from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 1304 or the
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principal and interest received in respect thereof, other than any such tax,
fee or other charge which by law is for the account of the Holders of the
Outstanding Securities of such series or Tranche.
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver to pay to the Company from time to time upon Company
Request any money or Government Obligations held by it as provided in Section
1304 which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee, are in excess of the amount thereof which would then be required
to be deposited for the purpose for which such money or Government
Obligations were deposited.
ARTICLE FOURTEEN
SUBORDINATION
SECTION 1401. AGREEMENT OF SECURITYHOLDERS THAT SECURITIES SUBORDINATED TO
EXTENT PROVIDED.
The Company, for itself, its successors and assigns, covenants and
agrees and each Holder of the Securities by his acceptance thereof likewise
covenants and agrees that the payment of the principal of, premium, if any,
and interest, if any, on each and all of the Securities (other than
Securities discharged pursuant to Article Four or defeased pursuant to
Article Thirteen) is hereby expressly subordinated, to the extent and in the
manner hereinafter set forth, to the prior payment in full, in cash or cash
equivalents, of all Senior Indebtedness. The provisions of this Article
shall constitute a continuing offer to all persons who, in reliance upon such
provisions, become holders of, or continue to hold, Senior Indebtedness, and
such provisions are made for the benefit of the holders of Senior
Indebtedness, and such holders are hereby made obligees hereunder the same as
if their names were written herein as such, and they and/or each of them may
proceed to enforce such provisions.
SECTION 1402. COMPANY NOT TO MAKE PAYMENTS WITH RESPECT TO SECURITIES IN
CERTAIN CIRCUMSTANCES.
(a) No direct or indirect payment by or on behalf of the Company
of principal of or premium, if any, or interest on the Securities (other than
Securities which have been discharged pursuant to Article Four or defeased
pursuant to Article Thirteen), whether pursuant to the terms of the
Securities or upon acceleration or otherwise, shall be made if, at the time
of such payment, there exists (i) a default in the payment of all or any
portion of any Senior Indebtedness and the Trustee has received written
notice thereof from the Company, from holders of Senior Indebtedness or from
any trustee, representative or agent therefor, or (ii) any other default
affecting Senior Indebtedness
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as a result of which the maturity of such Senior Indebtedness has been
accelerated and the Trustee has received written notice from the Company,
from holders of Senior Indebtedness or from any trustee, representative or
agent therefor, and such default shall not have been cured or waived by or on
behalf of the holders of such Senior Indebtedness.
(b) In the event that notwithstanding the provisions of this
Section 1402, the Company shall make any payment to the Trustee on account of
the principal of or premium, if any, or interest, if any, on the Securities,
or on account of any sinking fund, or the Holders of the Securities shall
receive any such payment when such payment is prohibited by this Section 1402
and before all amounts payable on, under or in connection with Senior
Indebtedness are paid in full in cash or cash equivalents, then and in such
event, such payment (subject to the provisions of Sections 1406 and 1407)
shall be held by the Trustee or the Holders of the Securities, as the case
may be, in trust for the benefit of, and shall be paid forthwith over and
delivered to, the holders of Senior Indebtedness (pro rata as to each of such
holders on the basis of the respective amounts of Senior Indebtedness held by
them) or their representative or the trustee under the indenture or other
agreement (if any) pursuant to which any instruments evidencing any Senior
Indebtedness may have been issued, as their respective interests may appear,
for application to the payment of all Senior Indebtedness remaining unpaid to
the extent necessary to pay all Senior Indebtedness in full in accordance
with the terms of such Senior Indebtedness, after giving effect to any
concurrent payment or distribution or provision therefor to or for the
holders of Senior Indebtedness. The Company shall give prompt written notice
to the Trustee of any default under any Senior Indebtedness or under any
agreement pursuant to which Senior Indebtedness may have been issued.
SECTION 1403. SECURITIES SUBORDINATED TO PRIOR PAYMENT OF ALL SENIOR
INDEBTEDNESS ON DISSOLUTION, LIQUIDATION OR REORGANIZATION OF
COMPANY.
Upon any payment or distribution of assets or Securities of the
Company, as the case may be, of any kind or character, whether in cash,
property or securities, upon any dissolution or winding up or total or
partial liquidation or reorganization of the Company, whether voluntary or
involuntary, or in bankruptcy, insolvency, receivership or similar
proceedings of the Company:
(a) the holders of all Senior Indebtedness shall first be entitled to
receive payment in full in cash or cash equivalents of the principal
thereof, premium, if any, and interest (including any interest accrued on
such Senior Indebtedness subsequent to the commencement of a bankruptcy,
insolvency, receivership or similar proceeding), if any, due thereon before
the Holders of the Securities are entitled to receive any payment on
account of the principal of, premium,
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if any, or interest, if any, on the Securities or any distribution of any
assets or securities;
(b) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, to which the Holders
of the Securities or the Trustees would be entitled except for the
provisions of this Article Fourteen, shall be paid by the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or
other person making such payment or distribution directly to the holders of
Senior Indebtedness or their representative or representatives, or to the
trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been issued, to the
extent necessary to make payment in full of all Senior Indebtedness
remaining unpaid, after giving effect to any concurrent payment or
distribution or provision therefor to the holders of such Senior
Indebtedness;
(c) in the event that notwithstanding the foregoing provisions of
this Section 1403, the Company shall make any payment to the Trustee on
account of the principal of or premium, if any, or interest, if any, on the
Securities, or on account of any sinking fund, or the Holders of the
Securities shall receive any such payment when such payment is prohibited
by this Section 1403 and before all amounts payable on, under or in
connection with Senior Indebtedness are paid in full in cash or cash
equivalents, then and in such event, such payment (subject to the
provisions of Sections 1406 and 1407) shall be held by the Trustee or the
Holders of the Securities, as the case may be, in trust for the benefit of,
and shall be paid over and delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or
other person making payment or distribution of assets of the Company for
application to the payment of all Senior Indebtedness remaining unpaid to
the extent necessary to pay all Senior Indebtedness in full in accordance
with the terms of such Senior Indebtedness, after giving effect to any
concurrent payment or distribution or provision therefor to the holders of
such Senior Indebtedness.
SECTION 1404. SECURITYHOLDERS TO BE SUBROGATED TO RIGHT OF HOLDERS OF SENIOR
INDEBTEDNESS.
Subject to the payment in full in cash or cash equivalents of all
Senior Indebtedness, the Holders of the Securities shall be subrogated to the
rights of the holders of Senior Indebtedness to receive payments or
distributions of assets of the Company applicable to the Senior Indebtedness
until all amounts owing on the Securities shall be paid in full, and for the
purpose of such subrogation no payments or distributions to the holders of
the Senior Indebtedness by or on behalf of the
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Company or by or on behalf of the Holders of the Securities by virtue of this
Article which otherwise would have been made to the Holders of the Securities
shall, as between the Company, its creditors other than holders of the Senior
Indebtedness and the Holders of the Securities, be deemed to be payment by
the Company to or on account of the Senior Indebtedness, it being understood
that the provisions of this Article Fourteen are and are intended solely for
the purpose of defining the relative rights of the Holders of the Securities,
on the one hand, and the holders of the Senior Indebtedness, on the other
hand.
SECTION 1405. OBLIGATION OF THE COMPANY UNCONDITIONAL.
Nothing contained in this Article Fourteen or elsewhere in this
Indenture or in the Securities is intended to or shall impair as between the
Company and the Holders of the Securities, the obligation of the Company,
which is absolute and unconditional, to pay to the Holders of the Securities
the principal of, premium, if any, and interest, if any, on the Securities as
and when the same shall become due and payable in accordance with their
terms, or is intended to or shall affect the relative rights of the Holders
of the Securities 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 Security from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article Fourteen of the holders of Senior
Indebtedness in respect of cash, property, or securities of the Company
received upon the exercise of any such remedy. Upon any distribution of
assets of the Company referred to in this Article Fourteen, the Trustee,
subject to the provisions of Section 601, and the Holders of the Securities
shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which such liquidation, dissolution, winding up, or
reorganization proceedings are pending, or a certificate of the liquidating
trustee or agent or other person making any distribution to the Trustee or to
the Holders of the Securities, for the purpose of ascertaining the persons
entitled to participate in such distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article Fourteen.
SECTION 1406. TRUSTEE ENTITLED TO ASSUME PAYMENTS NOT PROHIBITED IN ABSENCE OF
NOTICE.
The Trustee shall not at any time 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, unless and until a Responsible Officer of the
Trustee shall have received written notice thereof from the Company or from
one or more holders of Senior Indebtedness or from any trustee therefor; and,
prior to the receipt of any such written notice, the Trustee,
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subject to the provisions of Section 601, shall be entitled to assume
conclusively that no such facts exist.
SECTION 1407. APPLICATION BY TRUSTEE OF MONIES DEPOSITED WITH IT.
Anything in this Indenture to the contrary notwithstanding, any
deposit of monies by the Company with the Trustee or any paying agent
(whether or not in trust) for the payment of the principal of or premium, if
any, or interest, if any, on any Securities shall be subject to the
provisions of Sections 1401, 1402, 1403 and 1404 except that, if prior to the
date on which by the terms of this Indenture any such monies may become
payable for any purpose (including, without limitation, the payment of either
the principal of or the interest or premium, if any, on any Security) a
Responsible Officer of the Trustee shall not have received with respect to
such monies the notice provided for in Section 1406, then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power
and authority to receive such monies and to apply the same to the purpose for
which they were received, and shall not be affected by any notice to the
contrary which may be received by it on or after such date.
SECTION 1408. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS OF COMPANY
OR HOLDERS OF SENIOR INDEBTEDNESS.
No right of any present or future holders 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 be otherwise charged with.
SECTION 1409. SECURITYHOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE SUBORDINATION OF
SECURITIES.
Each Holder of the Securities by his acceptance thereof authorizes
and expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article Fourteen and appoints the Trustee his attorney-in-fact for such
purpose, including, in the event of any dissolution, winding up, liquidation
or reorganization of the Company (whether in bankruptcy, insolvency or
receivership proceedings or upon an assignment for the benefit of creditors
or otherwise) tending towards liquidation of the business and assets of the
Company, the immediate filing of a claim for the unpaid balance of its or his
Securities in the form required in said proceedings and cause said claim to
be approved.
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SECTION 1410. RIGHT OF TRUSTEE TO HOLD SENIOR INDEBTEDNESS.
The Trustee shall be entitled to all of 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 Section 613 or elsewhere in this Indenture shall be construed to
deprive the Trustee of any of its rights as such Holder.
SECTION 1411. ARTICLE FOURTEEN NOT TO PREVENT EVENTS OF DEFAULT.
The failure to make a payment on account of principal, interest or
sinking fund by reason of any provision in this Article Fourteen shall not be
construed as preventing the occurrence of an Event of Default under Section
501.
ARTICLE FIFTEEN
MISCELLANEOUS
SECTION 1501. MISCELLANEOUS.
This instrument may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
PUBLIC SERVICE COMPANY
OF COLORADO
By
-------------------------------------
Name:
Title:
Attest:
- ----------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By
--------------------------------
Name:
Title:
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====================================
FIRST SUPPLEMENTAL INDENTURE
Dated as of _______ __, 1998
between
PUBLIC SERVICE COMPANY OF COLORADO
AS ISSUER
and
THE BANK OF NEW YORK
AS TRUSTEE
=====================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
1.1. Definition of Terms. . . . . . . . . . . . . . . . . . . . . . . . . .2
II GENERAL TERMS AND CONDITIONS OF THE DEBENTURES. . . . . . . . . . . . . . . .3
2.1. Designation and Principal Amount . . . . . . . . . . . . . . . . . . .3
2.2. Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
2.3. Form and Payment . . . . . . . . . . . . . . . . . . . . . . . . . . .3
2.4. Global Debenture . . . . . . . . . . . . . . . . . . . . . . . . . . .4
2.5. Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
2.6. Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
2.7 No Sinking Fund. . . . . . . . . . . . . . . . . . . . . . . . . . . .6
2.8 Depository . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
2.9 Appointment of Agents. . . . . . . . . . . . . . . . . . . . . . . . .6
III REDEMPTION OF THE DEBENTURES. . . . . . . . . . . . . . . . . . . . . . . . .7
3.1. Special Event Redemption . . . . . . . . . . . . . . . . . . . . . . .7
3.2. Optional Redemption by Company . . . . . . . . . . . . . . . . . . . .8
IV EXTENSION OF INTEREST PAYMENT PERIOD. . . . . . . . . . . . . . . . . . . . .9
4.1. Extension of Interest Payment Period . . . . . . . . . . . . . . . . .9
4.2. Notice of Extension. . . . . . . . . . . . . . . . . . . . . . . . . .9
4.3. Limitation of Transactions . . . . . . . . . . . . . . . . . . . . . 10
V EXPENSES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.1. Payment of Expenses. . . . . . . . . . . . . . . . . . . . . . . . . 11
5.2. Payment Upon Resignation or Removal. . . . . . . . . . . . . . . . . 11
VI SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
6.1. Subordination. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
VII COVENANT TO LIST ON EXCHANGE. . . . . . . . . . . . . . . . . . . . . . . . 12
7.1. Listing on an Exchange . . . . . . . . . . . . . . . . . . . . . . . 12
VIII FORM OF DEBENTURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
8.1. Form of Debenture. . . . . . . . . . . . . . . . . . . . . . . . . . 12
IX ORIGINAL ISSUE OF DEBENTURES. . . . . . . . . . . . . . . . . . . . . . . . 21
9.1. Original Issue of Debentures . . . . . . . . . . . . . . . . . . . . 21
i
<PAGE>
X MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
10.1. Ratification of Indenture. . . . . . . . . . . . . . . . . . . . . . 21
10.2. Trustee Not Responsible for Recitals . . . . . . . . . . . . . . . . 21
10.3. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
10.4. Separability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
10.5. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
</TABLE>
ii
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FIRST SUPPLEMENTAL INDENTURE, dated as of ____________, 1998 (the
"First Supplemental Indenture"), between Public Service Company of Colorado, a
corporation duly organized and existing under the laws of the State of Colorado,
having its principal office at 1225 17th Street, Denver, Colorado 80202 (the
"Company"), and The Bank of New York, a New York banking corporation, having its
principal place of business at 101 Barclay Street, Floor 21 West, New York, New
York 10081, as trustee (the "Trustee") under the Indenture dated as of
__________, 1998 (the "Indenture"), between the Company and the Trustee.
WHEREAS, the Company executed and delivered the Indenture to the
Trustee to provide for the future issuance of the Company's unsecured
debentures, notes or other evidence of indebtedness (the "Securities"), to be
issued from time to time in one or more series as might be determined by the
Company under the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company desires
to provide for the establishment of a new series of its Securities to be known
as its ___% Deferrable Interest Subordinated Debentures due _________ (the
"Debentures"), the form and substance of such Debentures and the terms,
provisions and conditions thereof to be set forth as provided in the Indenture
and this First Supplemental Indenture;
WHEREAS, PSCO Capital Trust I, a Delaware statutory business trust
(the "Trust"), intends to offer to the public $___ million aggregate liquidation
amount of its ___% ____________________ (the "Preferred Securities"),
representing preferred undivided beneficial interests in the assets of the
Trust, and proposes to invest the proceeds from such offering, together with the
proceeds of the issuance and sale by the Trust to the Company of $___ million
aggregate liquidation amount of its ___% Common Securities, in $____ million
aggregate principal amount of the Debentures; and
WHEREAS, the Company has requested that the Trustee execute and
deliver 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 Debentures, when executed by the Company and
authenticated and delivered by the Trustee, the valid obligations of the
Company, have been performed, and the execution and delivery of this First
Supplemental Indenture has been duly authorized in all respects.
NOW THEREFORE, in consideration of the purchase and acceptance of the
Debentures by the Holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Debentures and the
terms, provisions and conditions thereof, the Company covenants and agrees with
the Trustee as follows:
<PAGE>
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITION OF TERMS.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used in
this First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental Indenture has
the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) headings are for convenience of reference only and do not affect
interpretation;
(e) the following terms have the meanings given to them in the
Declaration: (i) Administrative Trustee; (ii) Business Day; (iii) Clearing
Agency; (iv) Delaware Trustee; (v) Guarantee; (vi) Preferred Securities
Certificate; (vii) Pricing Agreement; (viii) Property Trustee; (ix) Trust
Securities; and (x) Underwriting Agreement; and
(f) the following terms have the meanings given to them in this
Section 1.1(f):
"Additional Interest" shall have the meaning set forth in Section
2.5(c).
"Change in 1940 Act Law" shall have the meaning set forth in Section
3.1.
"Compounded Interest" shall have the meaning set forth in Section 4.1.
"Coupon Rate" shall have the meaning set forth in Section 2.5(a).
"Declaration" means the Amended and Restated Declaration of Trust of
PSCO Capital Trust I, a Delaware statutory business trust, dated as of
_________, 1998.
"Deferred Interest" shall have the meaning set forth in Section 4.1.
"Dissolution Event" means that the Trust is to be dissolved in
accordance with the Declaration, and the Debentures held by the Property Trustee
are to be distributed to the holders of the Trust Securities issued by the Trust
pro rata in accordance with the Declaration.
"Extended Interest Payment Period" shall have the meaning set forth in
Section 4.1.
"Global Debenture" shall have the meaning set forth in Section 2.4(a).
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"Interest Payment Date" shall have the meaning set forth in Section
2.5(a).
"Investment Company Event" shall have the meaning set forth in Section
3.1.
"Maturity Date" means the date on which the Debentures mature and on
which the principal shall be due and payable together with all accrued and
unpaid interest thereon including Compounded Interest and Additional Interest,
if any.
"Ministerial Action" shall have the meaning set forth in Section 3.1.
"90 Day Period" shall have the meaning set forth in Section 3.1.
"Non Book-Entry Preferred Securities" shall have the meaning set forth
in Section 2.4(a).
"Optional Redemption Price" shall have the meaning set forth in
Section 3.2(a).
"Redemption Price" shall have the meaning set forth in Section 3.1.
"Special Event" shall have the meaning set forth in Section 3.1.
"Tax Event" shall have the meaning set forth in Section 3.1.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. DESIGNATION AND PRINCIPAL AMOUNT.
There is hereby authorized a series of Securities designated the "___%
Deferrable Interest Subordinated Debentures due _____ ", limited in aggregate
principal amount to $___ million, to be substantially in the form set forth in
Article VIII hereof, subject to changes in the form thereof made by the Company
and acceptable to the Trustee.
SECTION 2.2. MATURITY.
The Maturity Date of the Debentures is ____________, 20__.
SECTION 2.3. FORM AND PAYMENT.
Except as provided in Section 2.4, the Debentures shall be issued in
fully registered certificated form without interest coupons in denominations of
$[ ] or integral multiples of $[ ]. The Place of Payment for the Debentures
issued in certificated form where the transfer of such Debentures will be
registrable and where such Debentures will be exchangeable for Debentures
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bearing identical terms and provisions shall be the Corporate Trust Office of
the Trustee; provided, however, that payment of interest may be made at the
option of the Company by check mailed to the Holder at such address as shall
appear in the Security Register. Notwithstanding the foregoing, so long as the
Holder of any Debentures is the Property Trustee, the payment of the principal
of and interest (including Compounded Interest and Additional Interest, if any)
on such Debentures held by the Property Trustee will be made at such place and
to such account as may be designated to the Company in writing by the Property
Trustee.
SECTION 2.4. GLOBAL DEBENTURE.
(a) In connection with a Dissolution Event,
(i) the Debentures in certificated form may be presented to the
Trustee by the Property Trustee in exchange for a global Debenture in an
aggregate principal amount equal to the aggregate principal amount of all
outstanding Debentures (a "Global Debenture"), to be registered in the name
of the Depository, or its nominee, and delivered by the Trustee to the
Depository for crediting to the accounts of its participants pursuant to
the instructions of the Administrative Trustee. The Company upon any such
presentation shall execute a Global Debenture in such aggregate principal
amount and deliver the same to the Trustee for authentication and delivery
in accordance with the Indenture and this First Supplemental Indenture.
Payments on the Debentures issued as a Global Debenture will be made to the
Depository; and
(ii) if any Preferred Securities are held in non book-entry
certificated form, the Debentures in certificated form may be presented to
the Trustee by the Property Trustee and any Preferred Security Certificate
which represents Preferred Securities other than Preferred Securities held
by the Clearing Agency or its nominee ("Non Book-Entry Preferred
Securities") will be deemed to represent beneficial interests in Debentures
presented to the Trustee by the Property Trustee having an aggregate
principal amount equal to the aggregate liquidation amount of the Non
Book-Entry Preferred Securities until such Preferred Security Certificates
are presented to the Security Registrar for transfer or reissuance at which
time such Preferred Security Certificates will be cancelled and a
Debenture, registered in the name of the holder of the Preferred Security
Certificate or the transferee of the holder of such Preferred Security
Certificate, as the case may be, with an aggregate principal amount equal
to the aggregate liquidation amount of the Preferred Security Certificate
cancelled, will be executed by the Company and delivered to the Trustee for
authentication and delivery in accordance with the Indenture and this First
Supplemental Indenture. On issue of such Debentures, Debentures with an
equivalent aggregate principal amount that were presented by the Property
Trustee to the Trustee will be deemed to have been cancelled.
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(b) Unless and until it is exchanged for the Debentures in registered
form, a Global Debenture may be transferred, in whole but not in part, only to
another nominee of the Depository, or to a successor Depository selected or
approved by the Company or to a nominee of such successor Depository.
(c) If at any time the Depository notifies the Company that it is
unwilling or unable to continue as Depository or if at any time the Depository
for such series shall no longer be registered or in good standing under the
Securities Exchange Act of 1934, as amended, or other applicable statute or
regulation, and a successor Depository for such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such condition, as the case may be, the Company will execute, and, subject to
Article Three of the Indenture, the Trustee, upon written notice from the
Company, will authenticate and deliver the Debentures in definitive registered
form without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Debenture in exchange for
such Global Debenture. In addition, the Company may at any time determine that
the Debentures shall no longer be represented by the Global Debenture. In such
event the Company will execute, and subject to Section 303 of the Indenture, the
Trustee, upon receipt of an Officers' Certificate evidencing such determination
by the Company, will authenticate and deliver the Debentures in definitive
registered form without coupons, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global Debenture
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 Debenture shall be cancelled by the
Trustee. Such Debentures in definitive registered form issued in exchange for
the Global Debenture 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 Trustee. The Trustee
shall deliver such Debentures to the Depository for delivery to the Persons in
whose names such Debentures are so registered.
SECTION 2.5. INTEREST.
(a) Each Debenture will bear interest at the rate of ___% per annum
(the "Coupon Rate") from the original date of issuance 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 Coupon Rate, compounded [quarterly]
[semi-annually], payable (subject to the provisions of Article IV) [quarterly]
[semi-annually] in arrears on [March 31, June 30, September 30 and December 31]
[the ___ day of _____ and _____] of each year (each, an "Interest Payment Date,"
commencing on _____________), to the Person in whose name such Debenture or any
predecessor Debenture is registered, at the close of business on the regular
record date for such interest installment, which, in respect of (i) Debentures
of which the Property Trustee is the Holder and the Preferred Securities are in
book-entry only form or (ii) a Global Debenture, shall be the close of business
on the Business Day next preceding that Interest Payment Date. Notwithstanding
the foregoing sentence, if (i) the Debentures are held by the Property Trustee
and the Preferred Securities are no longer in book-entry only form or (ii) the
Debentures are not represented by a Global
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Debenture, the Company may select a regular record date for such interest
installment which shall be any date at least one Business Day but less than
sixty Business Days before an Interest Payment Date.
(b) The amount of interest payable for any period will be computed on
the basis of a 360-day year of twelve 30-day months. Except as provided in the
following sentence, the amount of interest payable for any period shorter than a
full [quarterly] [semi-annual] period for which interest is computed, will be
computed on the basis of the actual number of days elapsed in such a [90-day]
[180-day] period. In the event that any date on which interest is payable on
the 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.
(c) If, at any time while the Property Trustee is the Holder of any
Debentures, the Trust or the Property Trustee is required to pay any taxes,
duties, assessments or governmental charges of whatever nature (other than
withholding taxes) imposed by the United States, or any other taxing authority,
then, in any case, the Company will pay as additional interest ("Additional
Interest") on the Debentures held by the Property Trustee, such additional
amounts as shall be required so that the net amounts received and retained by
the Trust and the Property Trustee after paying such taxes, duties, assessments
or other governmental charges will be equal to the amounts the Trust and the
Property Trustee would have received had no such taxes, duties, assessments or
other government charges been imposed.
SECTION 2.6. REDEMPTION.
The Debentures are not subject to redemption at the option of the
Holder and are subject to redemption solely at the option of the Company or
otherwise as provided in Article III hereof.
SECTION 2.7 NO SINKING FUND.
The Debentures shall not be entitled to the benefit of any sinking
fund or analogous provision.
SECTION 2.8 DEPOSITORY.
The Depository Trust Company (or its nominee) shall act as the initial
Depository for any Global Debenture which may be issued pursuant to this First
Supplemental Indenture.
SECTION 2.9 APPOINTMENT OF AGENTS.
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The Company hereby appoints, or confirms the appointment of, The Bank
of New York as the initial Trustee, Securities Registrar and Paying Agent with
respect to the Debentures, subject to the provisions of the Indenture with
respect to resignation, removal and succession, and subject, further, to the
right of the Company to appoint additional agents (including Paying Agents).
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. SPECIAL EVENT REDEMPTION.
If a Special Event (as defined below) has occurred and is continuing
then, notwithstanding Section 3.2(a) but subject to Section 3.2(b), the Company
shall have the right upon not less than 30 days nor more than 60 days notice to
the Holders of the Debentures to redeem the Debentures, in whole but not in
part, for cash within 90 days following the occurrence of such Special Event
(the "90 Day Period") at a redemption price equal to 100% of the principal
amount to be redeemed plus any accrued and unpaid interest thereon, including
Compounded Interest and Additional Interest, if any, to the date of such
redemption (the "Redemption Price"); provided, however, that in the case of an
occurrence of a Tax Event, if at the time there is available to the Company the
opportunity to eliminate, within the 90 Day Period, the Tax Event by taking some
ministerial action ("Ministerial Action"), such as filing a form or making an
election, or pursuing some other similar reasonable measure which has no adverse
effect on the Company, the Trust or the Holders of the Trust Securities issued
by the Trust, the Company shall pursue such Ministerial Action in lieu of
redemption, and, provided, further, that the Company shall have no right to
redeem the Debentures while the Trust is pursuing any Ministerial Action
pursuant to its obligations under the Declaration. The Redemption Price shall
be paid prior to 12:00 noon, New York time, on the date of such redemption or at
such earlier time as the Company determines, provided that the Company shall
deposit with the Trustee an amount sufficient to pay the Redemption Price by
10:00 a.m., New York time, on the date such Redemption Price is to be paid.
A "Special Event" shall mean either a Tax Event or an Investment
Company Event. "Tax Event" shall mean that the Company shall have received an
opinion of counsel (which may be regular counsel to the Company or an Affiliate,
but not an employee thereof, which must be acceptable to the Property Trustee of
the Trust) experienced in such matters to the effect that, as a result of any
amendment to, or change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein affecting taxation, or as a
result of any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or such interpretation or pronouncement is announced on or after the
date of original issuance of Preferred Securities, there is more than an
insubstantial risk that (i) the Trust is subject to United States Federal income
tax with respect to interest received on the Debentures, (ii) interest payable
by the Company to the Trust on the Debentures will not
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be deductible for United States Federal income tax purposes, or (iii) the Trust
is subject to more than a de minimis amount of other taxes, duties, assessments
or other governmental charges. "Investment Company Event" shall mean the
occurrence of a change in law or regulation or a change in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority (a "Change in 1940 Act Law") to the effect that
the Trust is or will be considered an "Investment Company" that is required to
be registered under the Investment Company Act of 1940, as amended, which Change
in 1940 Act Law becomes effective on or after the date of original issuance of
the Preferred Securities.
SECTION 3.2. OPTIONAL REDEMPTION BY COMPANY.
(a) Subject to the provisions of Section 3.2(b) and to the provisions
of Article Eleven of the Indenture, except as otherwise may be specified in this
First Supplemental Indenture, the Company shall have the right to redeem the
Debentures, in whole or in part, from time to time, on or after _________, ____,
upon not less than 30 days nor more than 60 days notice to the Holder of the
Debentures [at a redemption price equal to 100% of the principal amount to be
redeemed plus any accrued and unpaid interest thereon, including Compounded
Interest and Additional Interest, if any, to the date of such redemption (the
"Optional Redemption Price").] [at the following redemption prices (expressed
as a percentage of the principal amount of the Debentures being redeemed) plus
accrued and unpaid interest thereon, including Compounded Interest and
Additional Interest, if any, to the redemption date (in any such case, an
"Optional Redemption Price"), if redeemed during the 12 month period commencing
on __________ of the years set forth below:
<TABLE>
<CAPTION>
Period Redemption Price
------ ----------------
<S> <C>
2008 104.665%
2009 104.199
2010 103.732
2011 103.266
2012 102.799
2013 102.333
2014 101.866
2015 101.400
2016 100.933
2017 100.467
and at 100% on or after __________, 2018]
</TABLE>
If the Debentures are only partially redeemed pursuant to this Section
3.2, the Debentures will be redeemed pro rata or by lot or by any other method
utilized by the Trustee; provided, that if at the time of redemption the
Debentures are registered as a Global Debenture, the Depository shall determine,
in accordance with its procedures, the principal amount of such Debentures held
by each Debenture Holder to be redeemed. The Optional Redemption Price shall be
paid prior to 12:00 noon, New York time, on the date of such redemption or at
such earlier time as the Company determines, provided that the Company shall
deposit with the Trustee an
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amount sufficient to pay the Optional Redemption Price by 10:00 a.m., New York
time, on the date such Optional Redemption Price is to be paid.
(b) If a partial redemption of the Debentures would result in the
delisting of the Preferred Securities issued by the Trust from any national
securities exchange or other organization on which the Preferred Securities are
then listed, the Company shall not be permitted to effect such partial
redemption and may only redeem the Debentures in whole.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. EXTENSION OF INTEREST PAYMENT PERIOD.
The Company shall have the right, at any time and from time to time
during the term of the Debentures, so long as no Event of Default with respect
to the Debentures has occurred and is continuing, to defer payments of interest
by extending the interest payment period of such Debentures for a period not
exceeding [20 consecutive quarters] [10 consecutive semi-annual periods] (the
"Extended Interest Payment Period"), during which Extended Interest Payment
Period no interest shall be due and payable; provided that no Extended Interest
Payment Period may extend beyond the Maturity Date. To the extent permitted by
applicable law, interest, the payment of which has been deferred because of the
extension of the interest payment period pursuant to this Section 4.1, will bear
interest thereon at the Coupon Rate compounded [quarterly for each quarter]
[semi-annually for each semi-annual period] of the Extended Interest Payment
Period ("Compounded Interest"). At the end of the Extended Interest Payment
Period, the Company shall pay all interest accrued and unpaid on the Debentures,
including any Additional Interest and Compounded Interest (together, "Deferred
Interest") that shall be payable to the Holders of the Debentures in whose names
the Debentures are registered in the Security Register on the first record date
after the end of the Extended Interest Payment Period. Before the termination
of any Extended Interest Payment Period, the Company may further extend such
period, provided that such period together with all such further extensions
thereof shall not exceed [20 consecutive quarters] [10 consecutive semi-annual
periods] or extend beyond the Maturity Date. Upon the termination of any
Extended Interest Payment Period and upon the payment of all Deferred Interest
then due, the Company may commence a new Extended Interest Payment Period,
subject to the foregoing requirements. No interest shall be due and payable
during an Extended Interest Payment Period, except (i) at the end thereof and
(ii) upon a redemption of the Debentures during an Extended Interest Payment
Period, but the Company may prepay at any time all or any portion of the
interest accrued during an Extended Interest Payment Period.
SECTION 4.2. NOTICE OF EXTENSION.
(a) If the Property Trustee is the only registered Holder of the
Debentures at the time the Company selects an Extended Interest Payment Period,
the Company shall give written notice to the Administrative Trustee, the
Property Trustee and the Trustee of its selection
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of such Extended Interest Payment Period one Business Day before the earlier of
(i) the next succeeding date on which Distributions on the Preferred Securities
issued by the Trust are payable, or (ii) the date the Trust is required to give
notice of the record date, or the date such Distributions are payable, to the
New York Stock Exchange or other applicable self-regulatory organization or to
holders of the Preferred Securities issued by the Trust, but in any event at
least one Business Day before such record date.
(b) If the Property Trustee is not the only Holder of the Debentures
at the time the Company selects an Extended Interest Payment Period, the Company
shall give the Holders of the Debentures and the Trustee written notice of its
selection of such Extended Interest Payment Period at least ten Business Days
before the earlier of (i) the next succeeding Interest Payment Date, or (ii) the
date the Company is required to give notice of the record or payment date of
such interest payment to the New York Stock Exchange or other applicable
self-regulatory organization or to Holders of the Debentures.
(c) The [quarter] [semi-annual period] in which any notice is given
pursuant to paragraphs (a) or (b) of this Section 4.2 shall be counted as one of
the [20 quarters] [10 semi-annual periods] permitted in the maximum Extended
Interest Payment Period permitted under Section 4.1.
SECTION 4.3. LIMITATION OF TRANSACTIONS.
If (i) the Company shall exercise its right to defer payment of
interest as provided in Section 4.1, (ii) there shall have occurred any Event of
Default, as defined in the Indenture, or (iii) the Company shall be in default
with respect to its payment obligations under the Guarantee, then (a) the
Company shall not declare or pay any dividend on, make any distributions with
respect to, or redeem, purchase, acquire or make a liquidation payment with
respect to, any of its capital stock (other than (i) as a result of a
reclassification of its capital stock or the exchange or conversion of one class
or series of its capital stock for another class or series of its capital stock,
(ii) any declaration of a dividend in connection with the implementation of a
shareholder rights plan, or the issuance of stock under any such plan in the
future, or the redemption or repurchase of any such rights pursuant thereto,
(iii) purchases of its common stock related to the issuance of such stock under
any of the Company's benefit plans for its directors, officers or employees,
(iv) obligations under any dividend reinvestment plan or stock purchase plan of
the Company, or (v) the purchase of fractional interests in shares of its
capital stock pursuant to the conversion or exchange provisions of such capital
stock or security being converted or exchanged) or make any guarantee payment
with respect thereto, (b) the Company shall not make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem any debt
securities issued by the Company which rank PARI PASSU with or junior to the
Debentures and (c) the Company shall not make any guarantee payments with
respect to the foregoing (other than pursuant to the Guarantee and any similar
guarantee issued by the Company on behalf of holders of preferred securities
issued by an issuer holding Securities issued under the Indenture).
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ARTICLE V
EXPENSES
SECTION 5.1. PAYMENT OF EXPENSES.
In connection with the offering, sale and issuance of the Debentures
to the Property Trustee and in connection with the sale of the Trust Securities
by the Trust, the Company, in its capacity as borrower with respect to the
Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Debentures, including commissions to the underwriters payable
pursuant to the Underwriting Agreement and the Pricing Agreement and
compensation of the Trustee under the Indenture in accordance with the
provisions of Section 607 of the Indenture;
(b) pay all costs and expenses of the Trust (including, but not
limited to, costs and expenses relating to the organization of the Trust, the
offering, sale and issuance of the Trust Securities (including commissions to
the underwriters in connection therewith), the fees and expenses of the Property
Trustee and the Delaware Trustee, the costs and expenses relating to the
operation of the Trust, including without limitation, costs and expenses of
accountants, attorneys, statistical or bookkeeping services, expenses for
printing and engraving and computing or accounting equipment, paying agent(s),
registrar(s), transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in connection with
the acquisition, financing, and disposition of Trust assets);
(c) be primarily liable for any indemnification obligations arising
with respect to the Declaration; and
(d) pay any and all taxes (other than United States withholding taxes
attributable to the Trust or its assets) and all liabilities, costs and expenses
with respect to such taxes of the Trust.
SECTION 5.2. PAYMENT UPON RESIGNATION OR REMOVAL.
Upon termination of this First Supplemental Indenture or the Indenture or
the removal or resignation of the Trustee pursuant to this Section 5.2, the
Company shall pay to the Trustee all amounts accrued to the date of such
termination, removal or resignation. Upon termination of the Declaration or the
removal or resignation of the Delaware Trustee or the Property Trustee, as the
case may be, pursuant to Section 7.10 of the Declaration, the Company shall pay
to the Delaware Trustee or the Property Trustee, as the case may be, all amounts
accrued to the date of such termination, removal or resignation.
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ARTICLE VI
SUBORDINATION
SECTION 6.1. SUBORDINATION.
The indebtedness evidenced by the Debenture shall be, to the extent
and in the manner set forth in the Indenture, subordinate and junior in right of
payment to the prior payment in full of all Senior Indebtedness (as defined in
the Indenture) with respect to the Debentures, and the Debentures shall rank
PARI PASSU in right of payment with each other series of Securities issued under
the Indenture, with the exception of any series of Securities which by its terms
provides otherwise.
ARTICLE VII
COVENANT TO LIST ON EXCHANGE
SECTION 7.1. LISTING ON AN EXCHANGE.
If the Debentures are to be distributed to the holders of Preferred
Securities as described in Section 2.4(a), the Company will, if the Debentures
are not already so listed, use its best efforts to list such Debentures on the
New York Stock Exchange, Inc. or on such other exchange as the Preferred
Securities are then listed.
ARTICLE VIII
FORM OF DEBENTURE
SECTION 8.1. FORM OF DEBENTURE.
The Debentures and the Trustee's Certificate of Authentication to be
endorsed thereon are to be substantially in the following forms:
(FORM OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT -- THIS
DEBENTURE IS A GLOBAL DEBENTURE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO 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 OR BY THE
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DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITORY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS DEBENTURE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, 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 OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
No. ____________________
$_______________________
CUSIP No. ______________
13
<PAGE>
PUBLIC SERVICE COMPANY OF COLORADO
___% DEFERRABLE INTEREST SUBORDINATED DEBENTURE
DUE _______
PUBLIC SERVICE COMPANY OF COLORADO, a Colorado corporation (the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
______________ or registered assigns, the principal sum of _____________ Dollars
($___________) on _________, ____, and to pay interest on said principal sum
from ____________, 199__, 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, [quarterly (subject to deferral as set forth herein) in arrears on
March 31, June 30, September 30 and December 31] [semi-annually on the ___ day
of _____ and _____] of each year commencing _____________, at the rate of ___%
per annum until the principal hereof shall have become due and payable, and on
any overdue principal and premium, if any, and (without duplication 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 compounded
[quarterly] [semi-annually]. 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. In the event that any date on which interest is payable on this
Debenture is not a Business Day, then payment of interest payable on such date
will be made on the next succeeding day that 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 Securities, as defined in said Indenture) is
registered at the close of business on the regular record date for such interest
installment, which shall be the close of business on the Business Day next
preceding such Interest Payment Date. [IF PURSUANT TO THE PROVISIONS OF THE
INDENTURE THE DEBENTURES ARE NO LONGER REPRESENTED BY A GLOBAL DEBENTURE --
which shall be the close of business on the day next preceding such Interest
Payment Date.] Any such interest installment not punctually paid or duly
provided for shall forthwith cease to be payable to the registered Holders on
such regular record date and may be paid to the Person in whose name this
Debenture (or one or more Predecessor Securities) 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 the Debentures may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in the Indenture. The principal of (and premium, if any) and the
interest on this Debenture shall be payable at the office or agency of the
Company maintained for that purpose in any coin or currency of the United States
of America that 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
14
<PAGE>
at such address as shall appear in the Security Register. Notwithstanding the
foregoing, so long as the Holder of this Debenture is the Property Trustee, the
payment of the principal of (and premium, if any) and interest on this Debenture
will be made at such place and to such account as may be designated by the
Property Trustee.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate 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 his or her behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Trustee his or her
attorney-in-fact for any and all such purposes. Each Holder hereof, by his or
her 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 said provisions.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, 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.
15
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
Dated ___________________
PUBLIC SERVICE COMPANY OF COLORADO
By:______________________________________
Name:
Title:
Attest:
By: ______________________
Name:
Title:
(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.
Dated ___________________
THE BANK OF NEW YORK, as Trustee
By:______________________________________
Authorized Signatory
16
<PAGE>
This Debenture is one of a duly authorized series of Securities of the
Company (herein sometimes referred to as the "Securities"), specified in the
Indenture, all issued or to be issued in one or more series under and pursuant
to an Indenture dated as of ________________, 1998, duly executed and delivered
between the Company and The Bank of New York, as Trustee (the "Trustee"), as
supplemented by the First Supplemented Indenture dated as of _______, 1998,
between the Company and the Trustee (the Indenture as so supplemented, 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 Securities. By the terms of the Indenture, the Securities
are issuable in series that may vary as to amount, date of maturity, rate of
interest and in other respects as provided in the Indenture. This series of
Securities is limited in aggregate principal amount as specified in said First
Supplemental Indenture.
Except as provided in the next paragraph, the Debentures may not be
redeemed by the Company prior to ______________, ______. The Company shall have
the right to redeem this Debenture 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
___________, ____ (an "Optional Redemption"), at the Optional Redemption Price
(as defined in the Indenture). Any redemption pursuant to this paragraph will
be made upon not less than 30 nor more than 60 days' notice, at the Optional
Redemption Price.
If a Special Event (as defined below) has occurred and is continuing
then the Company shall have the right upon not less than 30 days nor more than
60 days notice to the Holders of the Debentures to redeem the Debentures, in
whole but not in part, for cash within 90 days following the occurrence of such
Special Event (the "90 Day Period") at a redemption price equal to 100% of the
principal amount to be redeemed plus any accrued and unpaid interest thereon,
including Compounded Interest and Additional Interest, if any, to the date of
such redemption (the "Redemption Price"); provided, however, that in the case of
a Tax Event, if at the time there is available to the Company the opportunity to
eliminate, within the 90 Day Period, the Tax Event by taking some ministerial
action ("Ministerial Action"), such as filing a form or making an election, or
pursuing some other similar reasonable measure which has no adverse effect on
the Company, the Trust or the Holders of the Trust Securities issued by the
Trust, the Company shall pursue such Ministerial Action in lieu of redemption,
and, provided, further, that the Company shall have no right to redeem the
Debentures while the Trust is pursuing any Ministerial Action pursuant to its
obligations under the Declaration. The Redemption Price shall be paid prior to
12:00 noon, New York time, on the date of such redemption or such earlier time
as the Company determines, provided that the Company shall deposit with the
Trustee an amount sufficient to pay the Redemption Price by 10:00 a.m., New York
time, on the date such Redemption Price is to be paid.
A "Special Event" shall mean either a Tax Event or an Investment
Company Event. "Tax Event" shall mean that the Company shall have received an
opinion of counsel (which may be regular counsel to the Company or an Affiliate,
but not an employee thereof, which must be acceptable to the Property Trustee of
the Trust) experienced in such matters to the effect that, as
17
<PAGE>
a result of any amendment to, or change (including any announced prospective
change) in, the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein affecting taxation,
or as a result of any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or such interpretation or pronouncement is announced on or after the
date of original issuance of Preferred Securities, there is more than an
insubstantial risk that (i) the Trust is subject to United States Federal income
tax with respect to interest received on the Debentures, (ii) interest payable
by the Company to the Trust on the Debentures will not be deductible for United
States Federal income tax purposes, or (iii) the Trust is subject to more than a
de minimis amount of other taxes, duties, assessments or other governmental
charges. "Investment Company Event" shall mean the occurrence of a change in
law or regulation or a change in interpretation or application of law or
regulation by any legislative body, court, governmental agency or regulatory
authority (a "Change in 1940 Act Law") to the effect that the Trust is or will
be considered an "Investment Company" that is required to be registered under
the Investment Company Act of 1940, as amended, which Change in 1940 Act Law
becomes effective on or after the date of original issuance of the Preferred
Securities.
Any redemption pursuant to the occurrence of a Special Event will be
made upon not less than 30 days nor more than 60 days notice, at the Redemption
Price. If the Debentures are only partially redeemed by the Company pursuant to
an Optional Redemption, the Debentures will be redeemed pro rata or by lot or by
any other method utilized by the Trustee; provided that if, at the time of
redemption, the Debentures are registered as a Global Debenture, the Depository
shall determine the principal amount of such Debentures held by each Debenture
Holder to be redeemed in accordance with its procedures.
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.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debentures 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 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, as defined in the Indenture, to execute supplemental indentures for
the purpose of adding any provisions to or 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, among other things, (i)
reduce the principal amount thereof, or 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
18
<PAGE>
to consent to any such supplemental indenture, without the consent of the Holder
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 Securities of any series at the time outstanding affected thereby,
on behalf of all of the Holders of the Debentures of such series, to waive any
Default or Event of Default with respect to such series, and its consequences,
except a Default or Event of Default in the payment of the principal of or
premium, if any, or interest on any of the Securities of such series or in
respect of a provision which under the Indenture cannot be modified or amended
without the consent of the Holder of each Outstanding Security of that series
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
premium, if any, and interest on this Debenture at the time and place and at the
rate and in the money herein prescribed.
So long as no Event of Default with respect to the Debentures has
occurred and is continuing, the Company shall have the right at any time during
the term of the Debentures from time to time to extend the interest payment
period of such Debentures for up to [20 consecutive quarters] [10 consecutive
semi-annual periods] (an "Extended Interest Payment Period"), at the end of
which period the Company shall pay all interest then accrued and unpaid
(together with the interest thereon at the rate specified for the Debentures to
the extent that payment of such interest is enforceable under applicable law).
In the event that the Company exercises this right, then (a) the Company shall
not declare or pay any dividend on, make any distributions with respect to, or
redeem, purchase or acquire, or make a liquidation payment with respect to, any
of its capital stock (other than (i) as a result of a reclassification of the
Company's capital stock or the exchange or conversion of one class or series of
the Company's capital stock for another class or series of the Company's capital
stock, (ii) any declaration of a dividend in connection with the implementation
of a shareholder rights plan, or the issuance of stock under any such plan in
the future, or the redemption or repurchase of any such rights pursuant thereto,
(iii) purchases of its common stock related to the issuance of such stock under
any of the Company's benefit plans for its directors, officers or employees,
(iv) obligations under any dividend reinvestment plan or stock purchase plan of
the Company, or (v) the purchase of fractional interests in shares of the
Company's capital stock pursuant to the conversion or exchange provisions of
such capital stock or the security being converted or exchanged) or make any
guarantee payments with respect to the foregoing), (b) the Company shall not
make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities (including guarantees) issued by the
Company that rank PARI PASSU with or junior to such Debentures, and (c) the
Company shall not make any guarantee payments with respect to the foregoing
(other than pursuant to the Guarantee and any similar guarantee issued by the
Company on behalf of holders of preferred securities issued by an issuer holding
Securities issued under the Indenture). Prior to the termination of any
19
<PAGE>
such Extended Interest Payment Period, the Company may further extend the
interest payment period; provided, that such Extended Interest Payment Period,
together with all such previous and further extensions thereof, may not exceed
[20 consecutive quarters] [10 consecutive semi-annual periods] or extend beyond
the maturity date of the Debenture. At the termination of any such Extended
Interest Payment Period and upon the payment of all accrued and unpaid interest
and any additional amount then due, the Company may commence a new Extended
Interest Payment Period, subject to the above 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 Security Register of the Company, upon surrender of this Debenture
for registration of transfer at the office or agency of the Trustee in the City
of ___________ and State of ____________ accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company or the Trustee duly
executed by the registered Holder hereof or his 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 the Security Registrar
may deem and treat the registered holder hereof as the absolute owner hereof
(whether or not this Debenture shall be overdue and notwithstanding any notice
of ownership or writing hereon made by anyone other than the Security Registrar)
for the purpose of receiving payment of or on account of the principal hereof
and premium, if any, and interest due hereon and for all other purposes, and
neither the Company nor the Trustee nor any paying agent nor any Security
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 definitive
form only under certain limited circumstances set forth in the Indenture. The
Debentures of this series so issued are issuable only in registered form without
coupons in denominations of $__ and any integral multiple thereof.] As provided
in the Indenture and subject to certain limitations 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.
20
<PAGE>
All terms used in this Debenture that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
ARTICLE IX
ORIGINAL ISSUE OF DEBENTURES
SECTION 9.1. ORIGINAL ISSUE OF DEBENTURES.
Debentures in the aggregate principal amount of $___________ may, upon
execution of this First Supplemental Indenture, be executed by the Company and
delivered to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver said Debentures to or upon the written order of the
Company, signed by its Chairman, its President, or any Vice President and its
Treasurer or an Assistant Treasurer, without any further action by the Company.
ARTICLE X
MISCELLANEOUS
SECTION 10.1. RATIFICATION OF INDENTURE.
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 10.2. TRUSTEE NOT RESPONSIBLE FOR RECITALS.
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.
SECTION 10.3. GOVERNING LAW.
This First Supplemental Indenture and each Debenture shall be deemed
to be a contract made under the internal laws of the State of New York, and for
all purposes shall be construed in accordance with the laws of said State.
SECTION 10.4. SEPARABILITY.
In case any one or more of the provisions contained in this First
Supplemental Indenture or in the Debentures 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 First
Supplemental Indenture or of the Debentures, but this First Supplemental
Indenture
21
<PAGE>
and the Debentures shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
SECTION 10.5. COUNTERPARTS.
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.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
22
<PAGE>
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.
PUBLIC SERVICE COMPANY OF COLORADO
By: ______________________________________
Name:
Title:
THE BANK OF NEW YORK
as Trustee
By: ______________________________________
Name:
Title:
23
<PAGE>
Form of Amended and Restated
Declaration of Trust for PSCO Capital Trust I
among
PUBLIC SERVICE COMPANY OF COLORADO
(as Depositor)
The Bank of New York
(as Property Trustee)
The Bank of New York (Delaware)
(as Delaware Trustee)
and
THE ADMINISTRATIVE TRUSTEE NAMED HEREIN
Dated as of _______, 1998
<PAGE>
TABLE OF CONTENTS
<TABLE>
Page
----
<S> <C>
ARTICLE I Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Section 1.01. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE II Continuation of the Trust. . . . . . . . . . . . . . . . . . . . . . . .8
Section 2.01. Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
Section 2.02. Office of the Delaware Trustee; Principal Place of Business. . .8
Section 2.03. Initial Contribution of Trust Property; Expenses of the
Trust. . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
Section 2.04. Issuance of the Trust Securities . . . . . . . . . . . . . . . .9
Section 2.05. Purchase of Debentures . . . . . . . . . . . . . . . . . . . . 10
Section 2.06. Declaration. . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2.07. Authorization to Enter into Certain Transactions . . . . . . . 10
Section 2.08. Assets of Trust. . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2.09. Title to Trust Property. . . . . . . . . . . . . . . . . . . . 14
ARTICLE III Payment Account . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 3.01. Payment Account. . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE IV Distributions; Redemption. . . . . . . . . . . . . . . . . . . . . . . 15
Section 4.01. Distributions. . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4.02. Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 4.03. Subordination of Common Securities . . . . . . . . . . . . . . 18
Section 4.04. Payment Procedures . . . . . . . . . . . . . . . . . . . . . . 18
Section 4.05. Tax Returns and Reports. . . . . . . . . . . . . . . . . . . . 19
Section 4.06. Payments under Indenture . . . . . . . . . . . . . . . . . . . 19
ARTICLE V Trust Securities Certificates . . . . . . . . . . . . . . . . . . . . . 19
Section 5.01. Initial Ownership. . . . . . . . . . . . . . . . . . . . . . . 19
Section 5.02. The Trust Securities Certificates. . . . . . . . . . . . . . . 19
Section 5.03. Delivery of Trust Securities Certificates. . . . . . . . . . . 20
Section 5.04. Registration of Transfer and Exchange of Preferred Securities
Certificates . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 5.05. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 5.06. Persons Deemed Securityholders . . . . . . . . . . . . . . . . 21
Section 5.07. Access to List of Securityholders' Names and Addresses . . . . 21
Section 5.08. Maintenance of Office or Agency. . . . . . . . . . . . . . . . 21
Section 5.09. Appointment of Paying Agent. . . . . . . . . . . . . . . . . . 22
Section 5.10. Transfer of Securities . . . . . . . . . . . . . . . . . . . . 22
Section 5.11. Book-Entry Preferred Securities Certificates; Common
Securities Certificate . . . . . . . . . . . . . . . . . . . 23
Section 5.12. Definitive Preferred Securities Certificates . . . . . . . . . 23
Section 5.13. Rights of Securityholders. . . . . . . . . . . . . . . . . . . 23
-i-
<PAGE>
Page
----
ARTICLE VI Acts of Securityholders; Meetings; Voting. . . . . . . . . . . . . . . 24
Section 6.01. Limitations on Voting Rights . . . . . . . . . . . . . . . . . 24
Section 6.02. Notice of Meetings . . . . . . . . . . . . . . . . . . . . . . 24
Section 6.03. Meetings of Preferred Securityholders. . . . . . . . . . . . . 25
Section 6.04. Voting Rights. . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 6.05. Proxies, etc . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 6.06. Securityholder Action by Written Consent . . . . . . . . . . . 25
Section 6.07. Record Date for Voting and Other Purposes. . . . . . . . . . . 26
Section 6.08. Acts of Securityholders. . . . . . . . . . . . . . . . . . . . 26
Section 6.09. Inspection of Records. . . . . . . . . . . . . . . . . . . . . 27
ARTICLE VII The Trustees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 7.01. Certain Duties and Responsibilities. . . . . . . . . . . . . . 27
Section 7.02. Notice of Defaults; Direct Action by Securityholders . . . . . 28
Section 7.03. Certain Rights of Property Trustee . . . . . . . . . . . . . . 28
Section 7.04. Not Responsible for Recitals or Issuance of Securities . . . . 29
Section 7.05. May Hold Securities. . . . . . . . . . . . . . . . . . . . . . 29
Section 7.06. Compensation; Indemnity; Fees. . . . . . . . . . . . . . . . . 29
Section 7.07. Corporate Property Trustee Required; Eligibility of Trustees . 32
Section 7.08. Conflicting Interests. . . . . . . . . . . . . . . . . . . . . 32
Section 7.09. Co-Trustees and Separate Trustee . . . . . . . . . . . . . . . 32
Section 7.10. Resignation and Removal; Appointment of Successor. . . . . . . 34
Section 7.11. Acceptance of Appointment by Successor . . . . . . . . . . . . 35
Section 7.12. Merger, Conversion, Consolidation or Succession to Business. . 36
Section 7.13. Preferential Collection of Claims Against Depositor or Trust . 36
Section 7.14. Reports by Property Trustee. . . . . . . . . . . . . . . . . . 36
Section 7.15. Reports to the Property Trustee. . . . . . . . . . . . . . . . 36
Section 7.16. Evidence of Compliance with Conditions Precedent . . . . . . . 36
Section 7.17. Statements Required in Officers' Certificate and Opinion of
Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 7.18. Number of Trustees . . . . . . . . . . . . . . . . . . . . . . 37
Section 7.19. Delegation of Power. . . . . . . . . . . . . . . . . . . . . . 38
Section 7.20. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE VIII Dissolution and Liquidation. . . . . . . . . . . . . . . . . . . . . 38
Section 8.01. Dissolution Upon Expiration Date . . . . . . . . . . . . . . . 38
Section 8.02. Early Dissolution. . . . . . . . . . . . . . . . . . . . . . . 38
Section 8.03. Dissolution. . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 8.04. Liquidation. . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE IX Mergers, Etc.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 9.01. Mergers, Consolidations, Amalgamations or Replacements
of the Trust . . . . . . . . . . . . . . . . . . . . . . . . 40
-ii-
<PAGE>
Page
----
ARTICLE X Miscellaneous Provisions. . . . . . . . . . . . . . . . . . . . . . . . 41
Section 10.01. Limitation of Rights of Securityholders . . . . . . . . . . . 41
Section 10.02. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 10.03. Severability. . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 10.04. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 10.05. Certain Accounting Matters. . . . . . . . . . . . . . . . . . 43
Section 10.06. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 10.07. Payments Due on Non-Business Day. . . . . . . . . . . . . . . 43
Section 10.08. Successors and Assigns. . . . . . . . . . . . . . . . . . . . 43
Section 10.09. Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 10.10. Reports, Notices and Demands. . . . . . . . . . . . . . . . . 43
Section 10.11. Agreement Not to Petition . . . . . . . . . . . . . . . . . . 44
Section 10.12. Trust Indenture Act; Conflict with Trust Indenture Act. . . . 44
Section 10.13. Acceptance of Terms of Declaration, Guarantee and Indenture . 45
ARTICLE XI Representations of Property Trustee and Delaware Trustee . . . . . . . 45
Section 11.01. Representations and Warranties of Property Trustee. . . . . . 45
Section 11.02. Representations and Warranties of Delaware Trustee. . . . . . 46
</TABLE>
-iii-
<PAGE>
PSCO Capital Trust I
Certain Sections of this Declaration of Trust relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939
Trust Indenture Declaration of Trust
Act Section Section
----------- -------
Sections 310 (a)(1). . . . . . . . . . . . . . . . . . . . . . . . . 7.07
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . 7.07
(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . 7.09
(a)(4). . . . . . . . . . . . . . . . . . . . . 2.07(a)(ii)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08
Sections 311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.13
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.13
Sections 312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 5.07
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 5.07
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 5.07
Sections 313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.14
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.14
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.14
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.14
Sections 314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.15
(b) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1). . . . . . . . . . . . . . . . . . . . . . 7.16, 7.17
(c)(2). . . . . . . . . . . . . . . . . . . . . . 7.16, 7.17
(c)(3). . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.17
Sections 315 (a) . . . . . . . . . . . . . . . . . . . . 7.01(a), 7.03(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . 7.02, 10.08
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . 7.01, 7.03
(e) . . . . . . . . . . . . . . . . . . . . . Not Applicable
Sections 316 (a) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(1)(A) . . . . . . . . . . . . . . . . . . Not Applicable
(a)(1)(B) . . . . . . . . . . . . . . . . . . Not Applicable
(a)(2). . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . . . . . . . . . . Not Applicable
-iv-
<PAGE>
Trust Indenture Declaration of Trust
Act Section Section
----------- -------
Sections 317 (a)(1). . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(2). . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 5.09
Sections 318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . 10.10
- --------------------
Note: This reconciliation and tie sheet shall not, for any purpose, be
deemed to be a part of the Declaration of Trust.
-v-
<PAGE>
AMENDED AND RESTATED DECLARATION of PSCO Capital Trust I (the "Trust"),
dated as of ___________, 1998 among (i) Public Service Company of Colorado, a
Colorado corporation (the "Depositor"), (ii) The Bank of New York, a New York
banking corporation, as trustee (the "Property Trustee"), (iii) The Bank of New
York (Delaware), whose address in Delaware is White Clay Center, Route 273,
Newark, Delaware 19711, as Delaware trustee (the "Delaware Trustee"), (iv) Nancy
Felker, an individual whose address is 1225 17th Street, Suite 600, Denver,
Colorado 80502-5533 (the "Administrative Trustee") (the Property Trustee, the
Delaware Trustee and the Administrative Trustee are referred to collectively as
the "Trustees"), and (v) the several Holders, as hereinafter defined.
WITNESSETH:
WHEREAS, the Depositor, the Property Trustee, the Delaware Trustee and the
Administrative Trustee have heretofore duly declared and established a business
trust pursuant to the Delaware Business Trust Act by entering into a Declaration
of Trust, dated as of February 27, 1998 (the "Original Declaration"), and by
executing and filing with the Secretary of State of the State of Delaware a
Certificate of Trust on February 27, 1998, a form of which is attached hereto as
Exhibit A; and
WHEREAS, the Depositor, the Property Trustee, the Delaware Trustee and
the Administrative Trustee desire to amend and restate the Original
Declaration in its entirety as set forth herein to provide for, among other
things, (i) the issuance of the Common Securities, as hereinafter defined, by
the Trust to the Depositor, (ii) the issuance and sale of one series of the
Preferred Securities, as hereinafter defined, by the Trust pursuant to the
Underwriting Agreement, as hereinafter defined, and (iii) the acquisition by
the Trust from the Depositor of the Debentures, as hereinafter defined.
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, each party, for the benefit of the other party and
for the benefit of the Securityholders, as hereinafter defined, hereby amends
and restates the Original Declaration in its entirety and agrees as follows:
ARTICLE I
Defined Terms
Section 1.01. Definitions. For all purposes of this Declaration, except
as otherwise expressly provided or unless the context otherwise requires:
(a) each term defined in this Article I has the meaning assigned to
it in this Article I and includes the plural as well as the singular;
(b) each of the other terms used herein that is defined in the
Trust Indenture Act, either directly or by reference therein, has the meaning
assigned to it therein;
<PAGE>
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Declaration; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Declaration as a whole and not to any particular
Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.08.
"Administrative Trustee" means the individual identified as the
"Administrative Trustee" in the preamble to this Declaration, solely in
his/her capacity as Administrative Trustee of the Trust and not in his/her
individual capacity, or such Administrative Trustee's successor in interest
in such capacity, or any successor trustee appointed as herein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Bankruptcy Event" means, with respect to any Person, the occurrence of
any of the following events:
(a) Such Person, pursuant to or within the meaning of any
Bankruptcy Law:
(i) commences a voluntary case or proceeding;
(ii) consents to the entry of an order for relief against it
in an involuntary case or proceeding;
(iii) consents to the appointment of a Custodian of it or for
all or substantially all of its property, and such Custodian is not
discharged within 60 days;
(iv) makes a general assignment for the benefit of its
creditors; or
(v) admits in writing its inability to pay its debts
generally as they become due; or
(b) A court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against such Person in an involuntary case
or proceeding;
(ii) appoints a Custodian of such Person for all or
substantially all of its properties; or
-2-
<PAGE>
(iii) orders the liquidation of such Person,
and in each case the order or decree remains unstayed and in effect for 60
days.
"Bankruptcy Laws" means Title 11 of the United States Code, or similar
federal or state law for the relief of debtors.
"Board Resolution" means (i) a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly
adopted by the Depositor's Board of Directors or a committee established
thereby and to be in full force and effect on the date of such certification
or (ii) a certificate signed by the authorized officer or officers of the
Depositor to whom the Depositor's Board of Directors or a committee
established thereby has delegated its authority, and in each case, delivered
to the Trustees.
"Book-Entry Preferred Securities Certificates" means certificates
representing Preferred Securities issued in global, fully registered form
with the Clearing Agency as described in Section 5.11.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The City of New
York or the State of Colorado are authorized or obligated by law, regulation
or executive order to close.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder. The
Depository Trust Company will be the initial Clearing Agency.
"Closing Date" means the Time of Delivery as defined in the Underwriting
Agreement, which date is also the date of execution and delivery of this
Declaration.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this Declaration such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Security" means an undivided beneficial interest in the assets
of the Trust, having a Liquidation Amount of $__ and having the rights
provided therefor in this Declaration, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing ownership
of Common Securities, substantially in the form attached hereto as Exhibit B.
-3-
<PAGE>
"Company Indemnified Person" means the Administrative Trustee or any
Affiliate, agent or representative thereof.
"Corporate Trust Office" means the principal corporate office of the
Property Trustee located in New York which at the date hereof is 101 Barclay
Street, Floor 21 West, New York, New York.
"Creditor" has the meaning specified in Section 2.03(d).
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator, custodian or similar official under any Bankruptcy Law.
"Debenture Event of Default" means an "Event of Default" as defined in
the Indenture with respect to the Debentures.
"Debenture Redemption Date" means "Redemption Date" as defined in the
Indenture with respect to the Debentures.
"Debenture Trustee" means The Bank of New York, a New York banking
corporation, in its capacity as trustee under the Indenture, or any successor
thereto appointed in accordance with the terms and provisions of the
Indenture.
"Debentures" means the Depositor's _____% Deferrable Interest
Subordinated Debentures due ____________ issued pursuant to the Indenture.
"Declaration" means this Amended and Restated Declaration, as the same
may be modified, amended or supplemented in accordance with the applicable
provisions hereof, including all exhibits hereto, including, for all purposes
of this Declaration and any such modification, amendment or supplement, the
provisions of the Trust Indenture Act that are deemed to be a part of and
govern this Declaration and any such modification, amendment or supplement,
respectively.
"Definitive Preferred Securities Certificates" means certificates
representing Preferred Securities issued in certificated, fully registered
form as described in Section 5.12.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. ss. 3801, et seq., as it may be amended from time
to time.
"Delaware Trustee" means the entity identified as the "Delaware Trustee"
in the preamble to this Declaration solely in its capacity as Delaware
Trustee of the Trust and not in its individual capacity, or its successor in
interest in such capacity, or any successor Delaware Trustee appointed as
herein provided.
"Depositor" has the meaning specified in the preamble to this
Declaration.
-4-
<PAGE>
"Distribution Date" has the meaning specified in Section 4.01(a).
"Distributions" means amounts payable in respect of the Trust Securities
as provided in Section 4.01.
"Event of Default" means the occurrence of a Debenture Event of Default
(whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body).
"Expiration Date" has the meaning specified in Section 8.01.
"Extension Period" means the period or periods in which pursuant to the
Indenture payments of interest on the Debentures are deferred by extending
the interest payment periods thereof.
"Guarantee" means the Preferred Securities Guarantee Agreement executed
and delivered by the Depositor to The Bank of New York, a New York banking
corporation, as trustee thereunder, contemporaneously with the execution and
delivery of this Declaration, for the benefit of the Holders of the Preferred
Securities, as amended from time, to time.
"Indenture" means the Indenture, dated as of ___________, 1998 between
the Depositor and the Debenture Trustee, as trustee thereunder, as amended or
supplemented from time to time, providing for the issuance of Subordinated
Debt Securities of the Depositor.
"Investment Company" means any company subject to the 1940 Act.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust
Securities, Trust Securities having an aggregate Liquidation Amount equal to
the principal amount of Debentures to be paid in accordance with the
Indenture and (b) with respect to a distribution of Debentures to Holders of
Trust Securities in connection with a dissolution and liquidation of the
Trust, Debentures having a principal amount equal to the aggregate
Liquidation Amount of the Trust Securities in exchange for which such
Debentures are distributed.
"Liquidation Amount" means the stated amount of $__ per Trust Security.
"Liquidation Date" means the date on which Debentures are to be
distributed to Holders of Trust Securities in connection with a dissolution
and liquidation of the Trust pursuant to Section 8.04(a).
"Liquidation Distribution" has the meaning specified in Section 8.04(d).
-5-
<PAGE>
"1940 Act" means the Investment Company Act of 1940, as amended.
"Officers' Certificate" means a certificate signed by the Chairman, the
President or any Senior or Executive Vice President, and the Treasurer, any
Assistant Treasurer, the Secretary or any Assistant Secretary of the
Depositor.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Trust, the Property Trustee or the Depositor or an Affiliate
of the Depositor, but not an employee of any thereof, and who shall be
acceptable to the Property Trustee.
"Original Declaration" has the meaning specified in the recitals to this
Declaration.
"Outstanding", when used with respect to Trust Securities, means, as of
the date of determination, all Trust Securities theretofore executed and
delivered under this Declaration, except:
(a) Trust Securities theretofore cancelled by the Administrative
Trustee or delivered to the Administrative Trustee for cancellation;
(b) Trust Securities for whose redemption money in the necessary
amount has been theretofore deposited with the Property Trustee or any Paying
Agent for the Holders of such Trust Securities; provided that, if such Trust
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Declaration;
(c) Trust Securities which have been paid or in exchange for or in
lieu of which other Trust Securities have been executed and delivered
pursuant to Section 5.05, other than any such Trust Securities in respect of
which there shall have been presented to the Property Trustee proof
satisfactory to it that such Trust Securities are held by a bona fide
purchaser; and
(d) as provided in Section 8.04(c);
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, Preferred Securities owned by the Depositor, any Trustee or any
Affiliate of the Depositor or any Trustee shall be disregarded and deemed not
to be Outstanding, except that (a) in determining whether any Trustee shall
be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Preferred Securities which such
Trustee actually knows to be so owned shall be so disregarded and (b) the
foregoing shall not apply at any time when all of the Outstanding Preferred
Securities are owned by the Depositor, one or more of the Trustees and/or any
such Affiliate. Preferred Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Administrative Trustee the pledgee's right so to act with
respect to such Preferred Securities and that the pledgee is not the
Depositor or any Affiliate of the Depositor.
-6-
<PAGE>
"Paying Agent" means the Property Trustee and any co-paying agent
appointed pursuant to Section 5.09.
"Payment Account" means a segregated non-interest-bearing corporate
trust account maintained by the Property Trustee in its trust department for
the benefit of the Securityholders in which all amounts paid to the Property
Trustee in respect of the Debentures or the Guarantee will be held and from
which the Property Trustee or such other Paying Agent shall make payments to
the Securityholders in accordance with Article 4.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Preferred Security" means a preferred security issued by the Trust,
constituting an undivided beneficial interest in the assets of the Trust,
having rights provided therefor in this Declaration, including the right to
receive Distributions and a Liquidation Distribution as provided herein. The
Preferred Securities issued by the Trust may be designated as either __%
Trust Originated Preferred Securities (liquidation amount of $25) or __%
Capital Securities (liquidation amount of $1,000), in accordance with the
provisions set forth herein.
"Preferred Securities Certificate" means a certificate evidencing
ownership of one or more Preferred Securities, substantially in the form
attached hereto as Exhibit C.
"Pricing Agreement" means any pricing agreement between the Trust, the
Depositor and the underwriters named therein with respect to the offer and
sale of the Preferred Securities.
"Property Trustee" means the commercial bank or trust company identified
as the "Property Trustee" in the preamble to this Declaration solely in its
capacity as Property Trustee of the Trust and not in its individual capacity,
or its successor in interest in such capacity, or any successor Property
Trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this
Declaration; provided that each Debenture Redemption Date and the stated
maturity of the Debentures shall be a Redemption Date for a Like Amount of
Trust Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions thereon to the Redemption Date [or, with respect to any Capital
Security redeemed as a result of the optional redemption of the Debentures,
the Optional Redemption Price as provided for in the Indenture.]
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.04.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security or Securities is registered in the Securities Register; any such
Person is a beneficial owner within the meaning of the Delaware Business
Trust Act.
-7-
<PAGE>
"Successor Securities" has the meaning specified in Section 9.01.
"Trust" means the Delaware business trust created pursuant to the
Original Declaration and continued hereby and identified on the cover page to
this Declaration.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this Declaration was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debentures, (b) any cash on deposit in,
or owing to, the Payment Account and (c) all proceeds and rights in respect
of the foregoing and any other property and assets for the time being held or
deemed to be held by the Property Trustee pursuant to the trusts of this
Declaration.
"Trust Security" means any one of the Common Securities or the Preferred
Securities.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Underwriting Agreement" means the Underwriting Agreement, dated
_____________, 1998 among the Trust, the Depositor and the Underwriters named
therein.
ARTICLE II
Continuation of the Trust
Section 2.01. Name. The Trust continued hereby shall be known as "PSCO
Capital Trust I" as such name may be modified from time to time by the
Administrative Trustee following written notice to the Holders of Trust
Securities and the other Trustees, in which name the Trustees may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and sue and be sued.
Section 2.02. Office of the Delaware Trustee; Principal Place of
Business. The address of the Delaware Trustee in the State of Delaware is
White Clay Center, Route 273, Newark, Delaware 19711 or such other address in
the State of Delaware as the Delaware Trustee may designate by written notice
to the Securityholders and the Depositor. The principal place of business of
the Trust is c/o Public Service Company of Colorado, 1225 17th Street,
Denver, Colorado 80202.
Section 2.03. Initial Contribution of Trust Property; Expenses of the
Trust.
(a) The Property Trustee acknowledges receipt in trust from the
Depositor in connection with the Original Declaration of the sum of $10,
which constituted the initial Trust Property.
-8-
<PAGE>
(b) The Depositor shall be responsible for and shall pay for all
obligations (other than with respect to the Trust Securities) and all costs
and expenses of the Trust (including, but not limited to, costs and expenses
relating to the organization of the Trust, the issuance and sale of the
Preferred Securities, the fees and expenses (including reasonable counsel
fees and expenses) of the Trustees as provided in Section 7.06, the costs and
expenses of accountants, attorneys, statistical or bookkeeping services,
expenses for printing and engraving and computing or accounting equipment,
Paying Agent(s), Securities Registrar, duplication, travel and telephone and
other telecommunications expenses and costs and expenses incurred in
connection with the disposition of the Trust Property).
(c) The Depositor will pay any and all taxes (other than United States
withholding taxes attributable to the Trust or its assets) and all
liabilities, costs and expenses with respect to such taxes of the Trust.
(d) The Depositor's obligations under this Section 2.03 shall be for the
benefit of, and shall be enforceable by, the Property Trustee and any Person
to whom any such obligations, costs, expenses and taxes are owed (a
"Creditor") whether or not such Creditor has received notice hereof. The
Property Trustee and any such Creditor may enforce the Depositor's
obligations under this Section 2.03 directly against the Depositor and the
Depositor irrevocably waives any right or remedy to require that the Property
Trustee or any such Creditor take any action against the Trust or any other
Person before proceeding against the Depositor. The Depositor agrees to
execute such additional agreements as may be necessary or desirable in order
to give full effect to the provisions of this Section 2.03.
(e) The Depositor shall make no claim upon the Trust Property for the
payment of such expenses.
(f) Except as expressly set forth in this Declaration, the Debentures,
the Guarantee and the terms of the Preferred Securities, the Depositor shall
not be personally liable for the return of any portion of the capital
contributions (or any return thereon) of the Holders of the Preferred
Securities which shall be made solely from the Trust Property, and shall not
be required to pay to the Trust or to any Holder of Preferred Securities any
deficit upon dissolution of the Trust or otherwise.
Section 2.04. Issuance of the Trust Securities.
(a) The Trust may issue only one series of Preferred Securities, which
may be designated as either Trust Originated Preferred Securities or Capital
Securities, to be determined in the sole discretion of the Administrative
Trustee, and one series of Common Securities.
(b) The Depositor, on behalf of the Trust and pursuant to the Original
Declaration, executed and delivered the Underwriting Agreement and the
Pricing Agreement. Contemporaneously with the execution and delivery of this
Declaration, the Administrative Trustee, on behalf of the Trust, shall
execute in accordance with Section 5.02 and deliver to the Underwriters named
in the Underwriting Agreement one or more Book-Entry Preferred Securities
Certificates, registered in the name of the nominee of the initial Clearing
Agency, representing _________ Preferred Securities having an aggregate
Liquidation Amount of $___________, against receipt by the Property Trustee
of the aggregate purchase price of such Preferred Securities of $___________,
which amount the Administrative Trustee shall promptly deliver to the
Property Trustee. Contemporaneously therewith, the Administrative Trustee,
on behalf of the Trust, shall execute in accordance with Section 5.02 and
deliver to the Depositor a
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<PAGE>
Common Securities Certificate, registered in the name of the Depositor,
representing _______ Common Securities having an aggregate Liquidation Amount
of $_________, and in satisfaction of the purchase price of such Common
Securities the Depositor shall deliver to the Property Trustee the sum of
$_________.
Section 2.05. Purchase of Debentures. Contemporaneously with the
execution and delivery of this Declaration (i) the Administrative Trustee, on
behalf of the Trust, shall purchase $___________ aggregate principal amount
of Debentures from the Depositor, registered in the name of the Property
Trustee on behalf of the Securityholders and the Trust and (ii) in
satisfaction of the purchase price for such Debentures, the Property Trustee,
on behalf of the Trust, shall deliver to the Depositor the sum of
$___________.
Section 2.06. Declaration.
(a) The exclusive purposes and functions of the Trust are (1) to issue
and sell Trust Securities and use the gross proceeds from such sale to
acquire the Debentures, (2) to maintain the status of the Trust as a grantor
trust for United States Federal income tax purposes, and (3) except as
otherwise limited herein, to engage in only those activities necessary,
appropriate, convenient or incidental thereto. The Depositor hereby appoints
the Trustees as trustees of the Trust, to have all the rights, powers and
duties to the extent set forth herein, and the Trustees hereby accept such
appointment. The Property Trustee hereby declares that it will hold the
Trust Property in trust upon and subject to the conditions set forth herein
for the benefit of the Securityholders. The Administrative Trustee shall
have all rights, powers and duties set forth herein. The Delaware Trustee
shall not be entitled to exercise any powers, nor shall the Delaware Trustee
have any of the duties and responsibilities of the Property Trustee or the
Administrative Trustee set forth herein. The Delaware Trustee shall be one
of the Trustees of the Trust for the sole and limited purpose of fulfilling
the requirements of Section 3807 of the Delaware Business Trust Act.
(b) The Trust will be classified as a grantor trust for United States
federal income tax purposes under Subpart E of Subchapter J of the Code,
pursuant to which the Holders of the Preferred Securities and the Common
Securities will be the owners of the Trust for United States federal income
tax purposes, and such Holders will include directly in their gross income
the income, gain, deduction or loss of the Trust as if the Trust did not
exist. By the acceptance of this Trust neither the Trustees, the Depositor
nor the owners of the Preferred Securities or Common Securities will take any
position for United States federal income tax purposes which is contrary to
the classification of the Trust as a grantor trust.
Section 2.07. Authorization to Enter into Certain Transactions.
(a) The Trustees shall conduct the affairs of the Trust in accordance
with the terms of this Declaration. Subject to the limitations set forth in
paragraph (b) of this Section, and in accordance with the following
provisions (i) and (ii), the Trustees shall have the authority to enter into
all transactions and agreements determined by the Trustees to be appropriate
in exercising the
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authority, express or implied, otherwise granted to the Trustees under this
Declaration, and to perform all acts in furtherance thereof, including
without limitation, the following:
(i) As among the Trustees, the Administrative Trustee shall have the
power and authority to act on behalf of the Trust with respect to the
following matters:
(A) determining whether the Trust shall issue Trust Originated
Preferred Securities or Capital Securities and executing and
delivering the Trust Securities on behalf of the Trust;
(B) causing the Trust to enter into, and executing, delivering
and performing on behalf of the Trust, such agreements as, in the
Administrative Trustee's opinion, may be necessary or desirable in
connection with the purposes and function of the Trust, including the
appointment of a depository and registrar as well as any successor
thereto;
(C) assisting in registering the Preferred Securities under the
Securities Act of 1933, as amended, under the Securities Exchange Act
of 1934, as amended, and under state securities or blue sky laws, and
qualifying this Declaration as a trust indenture under the Trust
Indenture Act;
(D) assisting in the listing of the Preferred Securities upon
such securities exchange or exchanges as the Depositor shall determine
and the registration of the Preferred Securities under the Securities
Exchange Act of 1934, as amended, and the preparation and filing of
all periodic and other reports and other documents pursuant to the
foregoing;
(E) acquiring the Debentures with the proceeds of the sale of the
Preferred Securities and the Common Securities; PROVIDED, HOWEVER,
that the Administrative Trustee shall cause legal title to the
Debentures to be held of record in the name of the Property Trustee
for the benefit of the Holders of the Preferred Securities, the Holder
of Common Securities and the Trust;
(F) to the extent provided in this Declaration, terminating and
liquidating the Trust and preparing, executing and filing the
certificate of cancellation with the Secretary of State of the State
of Delaware;
(G) sending notices or assisting the Property Trustee in sending
notices and other information regarding the Trust Securities and the
Debentures to Securityholders in accordance with this Declaration;
(H) employing or otherwise engaging employees and agents (who may
be designated as officers with titles) and managers, contractors,
advisors, and consultants and paying reasonable compensation for the
services provided by such Persons;
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(I) causing the Trust to comply with the Trust's obligations
under the Trust Indenture Act;
(J) incurring expenses that are necessary, appropriate,
convenient or incidental to carry out any of the purposes of the
Trust;
(K) taking all action that may be necessary or appropriate for
the preservation and the continuation of the Trust's valid existence,
rights, franchises and privileges as a statutory business trust under
the laws of the State of Delaware and of each other jurisdiction in
which such existence is necessary to protect the limited liability of
the Holders of the Preferred Securities or to enable the Trust to
effect the purposes for which the Trust was created;
(L) taking all action necessary to cause all applicable tax
returns and tax information reports that are required to be filed with
respect to the Trust to be duly prepared and filed by the
Administrative Trustee, on behalf of the Trust;
(M) taking all actions and performing such duties as may be
required of the Administrative Trustee pursuant to the terms of this
Declaration; and
(N) taking any action incidental to the foregoing as the
Administrative Trustee may from time to time determine is necessary or
advisable to give effect to the terms of this Declaration for the
benefit of the Securityholders (without consideration of the effect of
any such action on any particular Securityholder).
Any expenses incurred by the Administrative Trustee pursuant to this
Section 2.07 shall be reimbursed by the Depositor.
(ii) As among the Trustees, the Property Trustee shall have the power,
duty and authority to act on behalf of the Trust with respect to the
following matters:
(A) establishing and maintaining the Payment Account and
appointing Paying Agents (subject to Section 5.09);
(B) receiving payment of the purchase price of the Trust
Securities;
(C) receiving and holding the Debentures;
(D) collecting interest and principal payments on the Debentures
and depositing them in the Payment Account;
(E) making Distributions and other payments to the
Securityholders in respect of the Trust Securities;
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(F) exercising all of the rights, powers and privileges of a
holder of the Debentures;
(G) sending notices of defaults, redemptions, Extension Periods,
liquidations and other information regarding the Trust Securities and
the Debentures to the Securityholders in accordance with this
Declaration;
(H) to the extent provided in this Declaration, terminating and
liquidating the Trust, including distributing the Trust Property in
accordance with the terms of this Declaration, and preparing,
executing and filing the certificate of cancellation with the
Secretary of State of the State of Delaware;
(I) taking all action and performing such duties as may be
required of the Property Trustee pursuant to the terms of this
Declaration;
(J) after an Event of Default, taking any action incidental to
the foregoing as the Property Trustee may from time to time determine
is necessary or advisable to give effect to the terms of this
Declaration and protect and conserve the Trust Property for the
benefit of the Securityholders (without consideration of the effect
of any such action on any particular Securityholder); and
(K) registering transfers and exchanges of the Preferred
Securities in accordance with this Declaration (but only if at such
time the Property Trustee shall be the Securities Registrar).
(b) So long as this Declaration remains in effect, the Trust (or the
Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustees acting on behalf of the Trust shall not
(i) acquire any assets or investments (other than the Debentures), reinvest
the proceeds derived from investments, possess any power or otherwise act in
such a way as to vary the Trust Property or engage in any activities not
authorized by this Declaration, (ii) sell, assign, transfer, exchange,
mortgage, pledge, set-off or otherwise dispose of any of the Trust Property
or interests therein, including to Securityholders, except as expressly
provided herein, (iii) take any action that would cause the Trust to fail or
cease to qualify as a grantor trust for United States Federal income tax
purposes, (iv) incur any indebtedness for borrowed money or issue any other
debt, (v) issue any securities or other evidences of beneficial ownership of,
or beneficial interests in, the Trust other than the Trust Securities, or
(vi) take or consent to any action that would result in the placement of a
Lien on any of the Trust Property. The Administrative Trustee shall defend
all claims and demands of all Persons at any time claiming any Lien on any of
the Trust Property adverse to the interest of the Trust or the
Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities,
the Depositor shall have the right and responsibility to assist the Trust
with respect to, or effect on behalf of the Trust, the following (and any
actions taken by the Depositor in furtherance of the following prior to the
date of this Declaration are hereby ratified and confirmed in all respects):
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(i) preparing for filing, filing with the Commission and executing
on behalf of the Trust a registration statement on Form S-3 in relation to
the Preferred Securities, including any amendments thereto;
(ii) determining the States in which to take appropriate action to
qualify or register for sale all or part of the Preferred Securities and
doing any and all such acts, other than actions which must be taken by or
on behalf of the Trust, and advising the Trustees of actions they must take
on behalf of the Trust, and preparing for execution and filing any
documents to be executed and filed by the Trust or on behalf of the Trust,
as the Depositor deems necessary or advisable in order to comply with the
applicable laws of any such States;
(iii) preparing for filing, filing and executing on behalf of the
Trust an application to the New York Stock Exchange or any other national
stock exchange or The Nasdaq National Market for listing upon notice of
issuance of any Preferred Securities, and preparing for filing, filing and
executing on behalf of the Trust all other applications, statements,
certificates, agreements and other instruments as shall be necessary for
such listing;
(iv) preparing for filing, filing with the Commission and executing
on behalf of the Trust a registration statement on Form 8-A relating to the
registration of the Preferred Securities under Section 12(b) or 12(g) of
the Securities Exchange Act of 1934, as amended, including any amendments
thereto;
(v) negotiating the terms of, executing, delivering and performing
the Underwriting Agreement and the Pricing Agreement providing for the sale
of the Preferred Securities; and
(vi) taking any other actions necessary or desirable to carry out any
of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative
Trustee is authorized and directed to conduct the affairs of the Trust and to
operate the Trust so that (i) the Trust will not be deemed to be an
Investment Company required to be registered under the 1940 Act, or taxed as
a corporation or a partnership for United States Federal income tax purposes;
(ii) the Trust will qualify as a grantor trust for United States Federal
income tax purposes; and (iii) the Debentures will be treated as indebtedness
of the Depositor for United States Federal income tax purposes. In this
connection, the Depositor and the Administrative Trustee are authorized to
take any action, not inconsistent with applicable law, the Certificate of
Trust, as amended from time to time, or this Declaration, that each of the
Depositor and the Administrative Trustee determines in their discretion to be
necessary or desirable for such purposes.
Section 2.08. Assets of Trust. The assets of the Trust shall consist of
the Trust Property.
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Section 2.09. Title to Trust Property. Legal title to all Trust Property
shall be vested at all times in the Property Trustee (in its capacity as such)
and shall be held and administered by the Property Trustee for the benefit of
the Securityholders and the Trust in accordance with this Declaration.
ARTICLE III
Payment Account
Section 3.01. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall establish
the Payment Account. All monies and other property deposited or held from time
to time in the Payment Account shall be held by the Property Trustee for the
exclusive benefit of the Securityholders. The Property Trustee shall have
exclusive control of the Payment Account for the purpose of making deposits in
and withdrawals from the Payment Account in accordance with this Declaration;
provided that any Paying Agent shall have the right of withdrawal with respect
to the Payment Account solely for the purpose of making the payments
contemplated under Article 4.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on the Debentures and
any amounts paid to the Property Trustee pursuant to the Guarantee. Amounts
held in the Payment Account shall not be invested pending distribution
thereof.
ARTICLE IV
Distributions; Redemption
Section 4.01. Distributions.
(a) Distributions on the Trust Securities shall be cumulative, and will
accumulate whether or not there are funds of the Trust available for the
payment of Distributions. Distributions shall accumulate from _____________,
1998 and, except during an Extension Period for the Debentures pursuant to
the Indenture, shall be payable [quarterly in arrears on March 31, June 30,
September 30 and December 31 of each year] [semi-annually in arrears on April 1
or October 1 of each year], commencing on __________, 1998. If any date on
which Distributions are otherwise payable on the Trust Securities is not a
Business Day, then the payment of such Distributions shall 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, payment of such Distributions
shall be made on the immediately preceding Business Day, in each case with
the same force and effect as if made on such date (each date on which
Distributions are payable in accordance with this Section 4.01(a) is referred
to as a "Distribution Date").
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Within two Business Days after receipt by the Property Trustee of notice
of an Extension Period pursuant to the Indenture, the Property Trustee shall
give notice thereof to the Securityholders by first class mail, postage
prepaid.
(b) The Trust Securities represent undivided beneficial interests in the
Trust Property, and, subject to Sections 4.03 and 4.06 hereof, all
Distributions will be made pro rata on each of the Trust Securities.
Distributions on the Trust Securities shall be payable at a rate of _____%
per annum of the Liquidation Amount of the Trust Securities. The amount of
Distributions payable for any full [quarterly] [semi-annual] period shall be
computed on the basis of a 360-day year of twelve 30-day months, and for any
period shorter than a full [quarterly] [semi-annual] Distribution period for
which Distributions are computed, Distributions will be computed based on the
actual number of days elapsed per [90-day quarter]
[180-day semi-annual period.] During an Extension Period for the Debentures,
the rate per annum at which Distributions on the Trust Securities accumulate
shall be increased by an amount such that the aggregate amount of
Distributions that accumulate on all Trust Securities during any such
Extension Period is equal to the aggregate amount of interest (including
interest payable on unpaid interest at the rate per annum set forth above,
compounded [quarterly] [semi-annually], to the extent permitted by applicable
law) that accrues during any such Extension Period on the Debentures.
(c) Distributions on the Trust Securities shall be made from the Payment
Account by the Property Trustee or any Paying Agent and shall be payable on
each Distribution Date only to the extent that the Trust has funds then
available in the Payment Account for the payment of such Distributions.
(d) Distributions on the Trust Securities on each Distribution Date
shall be payable to the Holders thereof as they appear on the Securities
Register for the Trust Securities on the relevant record date, which shall be
one Business Day prior to such Distribution Date; provided, however, that in
the event that the Preferred Securities are not in book-entry-only form, the
relevant record date shall be the 15th day of the last month of each
[calendar quarter] [semi-annual period], whether or not a Business Day.
Section 4.02. Redemption.
(a) Upon receipt by the Trust of a notice of redemption of Debentures,
the Trust will call for redemption a Like Amount of Trust Securities at the
Redemption Price on the Debenture Redemption Date and will call for
redemption all Outstanding Trust Securities on the stated maturity date of
the Debentures.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60
days prior to the Redemption Date to each Holder of Trust Securities to be
redeemed, at such Holder's address appearing in the Securities Register. All
notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
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(iii) the CUSIP number;
(iv) the place or places where Trust Securities Certificates are to
be surrendered for payment of the Redemption Price;
(v) that on the Redemption Date the Redemption Price will become
payable upon each such Trust Security to be redeemed and that Distributions
thereon will cease to accumulate on and after such date; and
(vi) if less than all of the Outstanding Trust Securities are to be
redeemed, the identification and total Liquidation Amount of the particular
Trust Securities to be redeemed.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption or payment at maturity of Debentures. Redemptions of the Trust
Securities shall be made and the Redemption Price shall be payable on each
Redemption Date only to the extent that the Trust has funds then available in
the Payment Account for the payment of such Redemption Price.
(d) If the Trust, by action of the Property Trustee, gives a notice
of redemption in respect of any Trust Securities, then, on the Redemption
Date, subject to Section 4.02(c), the Property Trustee will irrevocably
deposit with the Paying Agent funds sufficient to pay the Redemption Price
for the Trust Securities being redeemed on such date and will give the Paying
Agent irrevocable instructions and authority to pay the Redemption Price to
the Holders of such Trust Securities upon surrender of their Trust Securities
Certificates. Notwithstanding the foregoing, Distributions payable on or
prior to the Redemption Date for any Trust Securities called for redemption
shall be payable to the Holders of such Trust Securities as they appear on
the Securities Register for the Trust Securities on the record dates for the
related Distribution Dates. If notice of redemption shall have been given
and funds irrevocably deposited as required, then upon the date of such
deposit, all rights of Securityholders holding Trust Securities so called for
redemption will cease, except the right of such Securityholders to receive
the Redemption Price, but without interest, and such Trust Securities will
cease to be Outstanding. In the event that any date on which any Redemption
Price is payable is not a Business Day, then payment of the Redemption Price
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 will be made on the immediately preceding
Business Day, in each case, with the same force and effect as if made on such
date. In the event that payment of the Redemption Price in respect of any
Trust Securities called for redemption is improperly withheld or refused, and
not paid either by the Trust or by the Depositor pursuant to the Guarantee,
Distributions on such Trust Securities will continue to accumulate, at the
then applicable rate, from the Redemption Date originally established by the
Trust for such Trust Securities to the date such Redemption Price is actually
paid, in which case the actual payment date will be the date fixed for
redemption for purposes of calculating the Redemption Price.
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(e) If less than all the Outstanding Trust Securities are to be redeemed
on a Redemption Date, then the aggregate Liquidation Amount of Trust
Securities to be redeemed shall be allocated 3% to the Common Securities and
97% to the Preferred Securities. The particular Preferred Securities to be
redeemed shall be selected by the Property Trustee from the Outstanding
Preferred Securities not previously called for redemption, by such method as
the Property Trustee shall deem fair and appropriate. The Property Trustee
shall promptly notify the Securities Registrar in writing of the Preferred
Securities selected for redemption. If fewer than all of the Trust
Securities represented by a Trust Securities Certificate are redeemed, the
Administrative Trustee shall execute for the Holder a new Trust Securities
Certificate representing the unredeemed Trust Securities. For all purposes
of this Declaration, unless the context otherwise requires, all provisions
relating to the redemption of Preferred Securities shall relate, in the case
of any Preferred Securities redeemed or to be redeemed only in part, to the
portion of the Liquidation Amount of Preferred Securities which has been or
is to be redeemed.
Section 4.03. Subordination of Common Securities.
(a) Payment of Distributions on, and the Redemption Price of, the Trust
Securities, as applicable, shall be made pro rata based on the Liquidation
Amount of the Trust Securities; provided, however, that if on any
Distribution Date or Redemption Date, a Debenture Event of Default shall have
occurred and be continuing, no payment of any Distribution on, or Redemption
Price of, any Common Security, and no other payment on account of the
liquidation of Common Securities, shall be made unless payment in full in
cash of all accumulated and unpaid Distributions on all Outstanding Preferred
Securities for all distribution periods terminating on or prior thereto, or
in the case of payment of the Redemption Price, the full amount of such
Redemption Price on all Outstanding Preferred Securities then being redeemed,
shall have been made or provided for, and all funds immediately available to
the Property Trustee shall first be applied to the payment in full in cash of
all Distributions on, or the Redemption Price of, Preferred Securities then
due and payable.
(b) In the case of the occurrence and continuance of any Debenture
Event of Default, the Holder of Common Securities will be deemed to have
waived any right to act with respect to any related Event of Default under
this Declaration and such Debenture Event of Default until the effect of such
related Event of Default and such Debenture Event of Default has been cured,
waived or otherwise eliminated. Until any such Event of Default under this
Declaration and such Debenture Event of Default has been so cured, waived or
otherwise eliminated, the Property Trustee shall act solely on behalf of the
Holders of the Preferred Securities and not the Holder of the Common
Securities, and only the Holders of the Preferred Securities will have the
right to direct the Property Trustee to act on their behalf.
Section 4.04. Payment Procedures. Payments of Distributions pursuant to
Section 4.01 in respect of the Preferred Securities shall be made by check
mailed to the address of the Holder thereof as such address shall appear on the
Securities Register or, if the Preferred Securities are held by a Clearing
Agency, such Distributions shall be made to the Clearing Agency by wire transfer
in immediately available funds. Payments of Distributions pursuant to Section
4.01 in respect of the Common Securities shall be made in such manner as shall
be mutually agreed
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between the Property Trustee and the Holder of the Common Securities.
Payment of the Redemption Price or Liquidation Distribution of the Trust
Securities shall be made in immediately available funds upon surrender of the
Trust Securities Certificate representing such Trust Securities at the
Corporate Trust Office of the Property Trustee.
Section 4.05. Tax Returns and Reports. The Administrative Trustee
shall prepare (or cause to be prepared), at the Depositor's expense, and file
all Federal, State and local tax and information returns and reports required
to be filed by or in respect of the Trust. In this regard, the
Administrative Trustee shall (a) prepare and file (or cause to be prepared or
filed) the appropriate Internal Revenue Service Form required to be filed in
respect of the Trust in each taxable year of the Trust and (b) prepare and
furnish (or cause to be prepared and furnished) to each Securityholder the
related Internal Revenue Service Form 1099 OID, or any successor form or the
information required to be provided on such form. The Administrative Trustee
shall provide the Depositor and the Property Trustee with a copy of all such
returns, reports and schedules promptly after such filing or furnishing. The
Trustees shall comply with United States Federal withholding and backup
withholding tax laws and information reporting requirements with respect to
any payments to Securityholders under the Trust Securities.
Section 4.06. Payments under Indenture. Any amount payable hereunder
to any Holder of Preferred Securities shall be reduced by the amount of any
corresponding payment such Holder has directly received pursuant to Section
508 of the Indenture or pursuant to the Guarantee. Notwithstanding the
provisions hereunder to the contrary, Securityholders acknowledge that any
Holder of Preferred Securities that receives payment under Section 508 of the
Indenture may receive amounts greater than the amount such Holder may be
entitled to receive pursuant to the other provisions of this Declaration.
ARTICLE V
Trust Securities Certificates
Section 5.01. Initial Ownership. Upon the creation of the Trust and
the contribution by the Depositor pursuant to Section 2.03 and until the
issuance of the Trust Securities, and at any time during which no Trust
Securities are Outstanding, the Depositor shall be the sole beneficial owner
of the Trust.
Section 5.02. The Trust Securities Certificates. The Trust Securities
Certificates shall be issued representing one or more Trust Securities.
Trust Securities Certificates representing fractional interests shall not be
issued. The Trust Securities Certificates shall be executed on behalf of the
Trust by manual signature of the Administrative Trustee or by a facsimile
signature of the Administrative Trustee countersigned by the Securities
Registrar. Trust Securities Certificates bearing the manual signatures of
individuals who were, at the time when such signatures shall have been
affixed, authorized to sign on behalf of the Trust, shall be validly issued
and entitled to the benefits of this Declaration, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
delivery of such Trust Securities Certificates or did not hold such offices
at the date of delivery of such Trust Securities
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Certificates. A transferee of a Trust Securities Certificate shall become a
Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such
Trust Securities Certificate in such transferee's name pursuant to Section
5.04.
Section 5.03. Delivery of Trust Securities Certificates. On the
Closing Date, the Administrative Trustee shall cause Trust Securities
Certificates, in an aggregate Liquidation Amount as provided in Section 2.04,
to be executed on behalf of the Trust as provided in Section 5.02 and
delivered to or upon a written order of the Depositor signed by any of its
Chairman of the Board, its President, any Vice President or the Treasurer,
without further corporate action by the Depositor, in authorized
denominations. The written order of the Depositor shall be accompanied by an
Officers' Certificate and an Opinion of Counsel.
Section 5.04. Registration of Transfer and Exchange of Preferred
Securities Certificates. A registrar appointed by the Depositor (the
"Securities Registrar") shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 5.08, a register (the "Securities
Register") in which, subject to such reasonable regulations as it may
prescribe, the Securities Registrar shall provide for the registration of
Trust Securities Certificates (subject to Section 5.10 in the case of the
Common Securities Certificates) and registration of transfers and exchanges
of Preferred Securities Certificates as herein provided. The Property
Trustee shall be the initial Securities Registrar; any successor Securities
Registrar shall be appointed by the Depositor.
Upon surrender for registration of transfer of any Preferred Securities
Certificate at the office or agency maintained pursuant to Section 5.08, the
Administrative Trustee shall execute and deliver, in the name of the
designated transferee or transferees, one or more new Preferred Securities
Certificates representing the same number of Preferred Securities dated the
date of execution by the Administrative Trustee. At the option of a Holder,
Preferred Securities Certificates may be exchanged for other Preferred
Securities Certificates upon surrender of the Preferred Securities
Certificates to be exchanged at the office or agency maintained pursuant to
Section 5.08. The Securities Registrar shall not be required to register the
transfer of any Preferred Securities that have been called for redemption or
after the Liquidation Date.
Preferred Securities presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer
in form satisfactory to the Administrative Trustee and the Securities
Registrar duly executed by the Holder or such Holder's attorney duly
authorized in writing. Each Preferred Securities Certificate surrendered for
registration of transfer or exchange shall be cancelled and subsequently
disposed of by the Securities Registrar in accordance with its customary
practice.
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities, but the Securities Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may
be imposed in connection with any transfer or exchange of Preferred
Securities.
Section 5.05. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates. If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Securities Registrar, or if the
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Securities Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Trust Securities Certificate, and (b) there
shall be delivered to the Securities Registrar and the Administrative Trustee
such security or indemnity as may be required by them to hold the Securities
Registrar and the Trust harmless, then in the absence of notice that such
Trust Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustee, on behalf of the Trust shall execute
and make available for delivery, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Trust Securities Certificate, a new
Trust Securities Certificate of like tenor. In connection with the issuance
of any new Trust Securities Certificate under this Section, the
Administrative Trustee or the Securities Registrar may require the payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith. Any duplicate Trust Securities Certificate
issued pursuant to this Section shall constitute conclusive evidence of an
undivided beneficial interest in the assets of the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
Section 5.06. Persons Deemed Securityholders. Prior to due
presentation of a Trust Security Certificate for registration of transfer,
the Administrative Trustee, the Paying Agent or the Securities Registrar
shall treat the Person in whose name any Trust Securities Certificate shall
be registered in the Securities Register as the owner and Holder of such
Trust Securities Certificate for the purpose of receiving Distributions and
for all other purposes whatsoever, and neither the Trustees, the Paying Agent
nor the Securities Registrar shall be bound by any notice to the contrary.
Section 5.07. Access to List of Securityholders' Names and Addresses.
In the event that the Property Trustee is no longer the Securities Registrar,
the Administrative Trustee or the Depositor shall furnish or cause to be
furnished a list, in such form as the Property Trustee may reasonably
require, of the names and addresses of the Securityholders as of the most
recent record date (a) to the Property Trustee, [quarterly] [semi-annually]
not later than 10 days prior to a Distribution Date and (b) to the Property
Trustee, promptly after receipt by the Administrative Trustee or the
Depositor of a request therefor from the Property Trustee in order to enable
the Paying Agent to pay Distributions in accordance with Section 4.01 hereof,
in each case to the extent such information is in the possession or control
of the Administrative Trustee or the Depositor and is not identical to a
previously supplied list or has not otherwise been received by the Property
Trustee. The rights of Securityholders to communicate with other
Securityholders with respect to their rights under this Declaration or under
the Trust Securities, and the corresponding rights of the Property Trustee
shall be as provided in the Trust Indenture Act. Each Holder, by receiving
and holding a Trust Securities Certificate, shall be deemed to have agreed
not to hold the Depositor, the Property Trustee, the Administrative Trustee
or the Delaware Trustee accountable by reason of the disclosure of its name
and address, regardless of the source from which such information was derived.
Section 5.08. Maintenance of Office or Agency. The Securities
Registrar shall maintain in New York, New York an office or offices or agency
or agencies where Preferred Securities may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Trustees in
respect of the Trust Securities Certificates may be served. The Property
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Trustee shall give prompt written notice to the Depositor and to the
Securityholders of any change in the location of the Securities Register or
any such office or agency, which shall initially be at the Corporate Trust
Office of the Property Trustee.
Section 5.09. Appointment of Paying Agent. The Paying Agent shall make
Distributions to Securityholders from the Payment Account and shall report
the amounts of such Distributions to the Property Trustee and the
Administrative Trustee. Any Paying Agent shall have the revocable power to
withdraw funds from the Payment Account for the purpose of making
Distributions. The Administrative Trustee may revoke such power and remove
the Paying Agent, provided that such revocation and removal with respect to
the sole Paying Agent shall not become effective until the appointment of a
successor. The Paying Agent shall initially be the Property Trustee, and any
co-paying agent chosen by the Property Trustee and acceptable to the
Administrative Trustee and the Depositor. Any Person acting as Paying Agent
shall be permitted to resign as Paying Agent upon 30 days' written notice to
the Administrative Trustee and the Depositor, and, if applicable, the
Property Trustee, provided that such resignation with respect to the sole
Paying Agent shall not become effective until the appointment of a successor.
In the event that the Property Trustee shall no longer be the Paying Agent
or a successor Paying Agent shall resign or its authority to act be revoked,
the Administrative Trustee shall appoint a successor that is acceptable to
the Property Trustee (in the case of any other Paying Agent) and the
Depositor to act as Paying Agent (which shall be a bank or trust company and
have a combined capital and surplus of at least $50,000,000). The
Administrative Trustee shall cause such successor Paying Agent or any
additional Paying Agent appointed by the Administrative Trustee to execute
and deliver to the Trustees an instrument in which such successor Paying
Agent or additional Paying Agent shall agree with the Trustees that as Paying
Agent, such successor Paying Agent or additional Paying Agent will hold all
sums, if any, held by it for payment to the Securityholders in trust for the
benefit of the Securityholders entitled thereto until such sums shall be paid
to such Securityholders. The Paying Agent shall return all of such sums
remaining unclaimed to the Property Trustee and upon removal of a Paying
Agent such Paying Agent shall also return such sums in its possession to the
Property Trustee. The provisions of Sections 7.01, 7.03 and 7.06 shall apply
to the Property Trustee also in its role as Paying Agent, for so long as the
Property Trustee shall act as Paying Agent and, to the extent applicable, to
any other Paying Agent appointed hereunder. Any reference in this
Declaration to the Paying Agent shall include any co-paying agent unless the
context requires otherwise.
Section 5.10. Transfer of Securities. Subject to this Article V, the
Depositor and any Affiliate may only transfer Common Securities to the
Depositor or an Affiliate of the Depositor; PROVIDED THAT, any such transfer
is subject to the condition precedent that the transferor obtain an opinion
of counsel experienced in such matters that such transfer would not cause
more than an insubstantial risk that:
(i) the Trust would not be classified for United States federal
income tax purposes as a grantor trust; and
(ii) the Trust would be an Investment Company or the transferee would
become an Investment Company.
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Section 5.11. Book-Entry Preferred Securities Certificates; Common
Securities Certificate.
(a) The Preferred Securities, upon original issuance on the Closing
Date, will not be engraved but will be issued in the form of one or more
printed or typewritten Book-Entry Preferred Securities Certificates, to be
delivered to The Depository Trust Company, the initial Clearing Agency, by,
or on behalf of, the Trust. Such Book-Entry Preferred Securities Certificate
or Certificates shall initially be registered on the Securities Register in
the name of Cede & Co., the nominee of the initial Clearing Agency.
(b) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive
Common Securities Certificate.
Section 5.12. Definitive Preferred Securities Certificates. If (a) the
Depositor advises the Trustees in writing that the Clearing Agency is no
longer willing or able to properly discharge its responsibilities with
respect to the Preferred Securities Certificates or the Clearing Agency is no
longer registered or in good standing under the Securities Exchange Act of
1934, as amended, or other applicable statute or regulation, and the
Depositor is unable to locate a qualified successor within 90 days, (b) the
Depositor at its option advises the Trustees in writing that it elects to
terminate the book-entry system through the Clearing Agency or (c) an Event
of Default occurs and is continuing, then the Administrative Trustee shall
issue Definitive Preferred Securities Certificates. Upon surrender to the
Administrative Trustee of the Book-Entry Preferred Securities Certificates by
the Clearing Agency, accompanied by registration instructions, the
Administrative Trustee shall execute and deliver the Definitive Preferred
Securities Certificates in accordance with the instructions of the Clearing
Agency. Neither the Securities Registrar nor the Trustees shall be liable
for any delay in delivery of such instructions and may conclusively rely on,
and shall be protected in relying on, such instructions. The Definitive
Preferred Securities Certificates shall be printed, lithographed or engraved
or may be produced in any other manner as is reasonably acceptable to the
Administrative Trustee, as evidenced by the execution thereof by the
Administrative Trustee.
Section 5.13. Rights of Securityholders. The Securityholders shall not
have any right or title to the Trust Property other than the undivided
beneficial interest in the assets of the Trust conferred by their Trust
Securities and they shall have no right to call for any partition or division
of property, profits or rights of the Trust except as described below. The
Trust Securities shall be personal property giving only the rights
specifically set forth therein and in this Declaration. The Trust Securities
shall have no preemptive or similar rights and when issued and delivered to
Securityholders against payment of the purchase price therefor will be fully
paid and nonassessable by the Trust. The Holders of the Trust Securities, in
their capacities as such, shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State of Delaware.
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ARTICLE VI
Acts of Securityholders; Meetings; Voting
Section 6.01. Limitations on Voting Rights.
(a) Except as provided herein and in the Indenture and as otherwise
required by law, no Holder of Trust Securities shall have any right to vote
or in any manner otherwise control the administration, operation and
management of the Trust or the obligations of the parties hereto, nor shall
anything herein set forth, or contained in the terms of the Trust Securities
Certificates, be construed so as to constitute the Securityholders from time
to time as partners or members of an association.
(b) The Trustees shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Debenture Trustee
or executing any trust or power conferred on the Debenture Trustee with
respect to such Debentures, (ii) waive any past default which may be waived
under Section 513 of the Indenture, (iii) exercise any right to rescind or
annul an acceleration of the principal of all the Debentures or (iv) consent
to any amendment or modification of the Indenture, where such consent shall
be required, without, in each case, obtaining the prior consent of the
Holders of at least a majority in aggregate Liquidation Amount of all
Outstanding Preferred Securities; provided, however, that where such consent
under the Indenture would require the consent of each holder of Debentures
affected thereby, no such consent shall be given by the Property Trustee
without the prior written consent of each Holder of Outstanding Preferred
Securities. The Trustees shall not revoke any action previously authorized
or approved by a vote of the Holders of Preferred Securities, except by a
subsequent vote of the Holders of Preferred Securities. The Property Trustee
shall notify all Holders of the Preferred Securities of any notice received
from the Debenture Trustee as a result of the Trust being the holder of the
Debentures. In addition to obtaining the consent of the Holders of the
Preferred Securities, prior to taking any of the foregoing actions, the
Trustees shall, at the expense of the Depositor, obtain an Opinion of Counsel
experienced in such matters to the effect that the Trust will not be
classified as an association taxable as a corporation or partnership for
United States Federal income tax purposes on account of such action and will
continue to be classified as a grantor trust for United States Federal income
tax purposes.
(c) Subject to Section 10.02(c) hereof, if any proposed amendment to the
Declaration provides for, or the Trustees otherwise propose to effect, (i)
any action that would adversely affect in any material respect the powers,
preferences or special rights of the Preferred Securities, whether by way of
amendment to this Declaration or otherwise, or (ii) dissolution of or
liquidation of the Trust, other than pursuant to the terms of this
Declaration, then the Holders of Outstanding Preferred Securities will be
entitled to vote on such amendment or proposal and such amendment or proposal
shall not be effective except with the approval of the Holders of at least a
majority in aggregate Liquidation Amount of the Outstanding Preferred
Securities.
Section 6.02. Notice of Meetings. Notice of all meetings of the Preferred
Securityholders, stating the time, place and purpose of the meeting, shall be
given by the Property
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Trustee pursuant to Section 10.10 to each Preferred Securityholder of record,
at his/her registered address, at least 15 days and not more than 90 days
before the meeting. At any such meeting, any business properly before the
meeting may be so considered whether or not stated in the notice of the
meeting. Any adjourned meeting may be held as adjourned without further
notice.
Section 6.03. Meetings of Preferred Securityholders. No annual meeting
of Securityholders is required to be held. The Administrative Trustee,
however, shall call a meeting of Securityholders to vote on any matter upon
the written request of the Holders of at least 25% of the aggregate
Liquidation Amount of the Outstanding Preferred Securities and the
Administrative Trustee or the Property Trustee may, at any time in their
discretion, call a meeting of Preferred Securityholders to vote on any
matters as to which the Preferred Securityholders are entitled to vote.
Holders of at least 50% of the aggregate Liquidation Amount of the
Outstanding Preferred Securities, present in person or by proxy, shall
constitute a quorum at any meeting of Preferred Securityholders.
If a quorum is present at a meeting, an affirmative vote of the Holders
of at least a majority of the aggregate Liquidation Amount of the Outstanding
Preferred Securities present, either in person or by proxy, at such meeting
shall constitute the action of the Preferred Securityholders, unless this
Declaration requires a greater number of affirmative votes.
Section 6.04. Voting Rights. A Securityholder shall be entitled to one
vote for each Trust Security in respect of any matter as to which such
Securityholder is entitled to vote.
Section 6.05. Proxies, etc. At any meeting of Securityholders, any
Securityholder entitled to vote thereat may vote by proxy, provided that no
proxy shall be voted at any meeting unless it shall have been placed on file
with the Administrative Trustee, or with such other officer or agent of the
Trust as the Administrative Trustee may direct, for verification prior to the
time at which such vote shall be taken. Pursuant to a resolution of the
Property Trustee, proxies may be solicited in the name of the Property
Trustee or one or more officers of the Property Trustee. Only
Securityholders of record shall be entitled to vote. When Trust Securities
are held jointly by several Persons, any one of them may vote at any meeting
in person or by proxy in respect of such Trust Securities, but if more than
one of them shall be present at such meeting in person or by proxy, and such
joint owners or their proxies so present disagree as to any vote to be cast,
such vote shall not be received in respect of such Trust Securities. A proxy
purporting to be executed by or on behalf of a Securityholder shall be deemed
valid unless challenged at or prior to its exercise, and the burden of
proving invalidity shall rest on the challenger. No proxy shall be valid
more than three years after its date of execution.
Section 6.06. Securityholder Action by Written Consent. Any action
which may be taken by Securityholders at a meeting may be taken without a
meeting if Holders of the proportion of the Outstanding Securities required
to approve such action shall consent to the action in writing.
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Section 6.07. Record Date for Voting and Other Purposes. For the
purposes of determining the Securityholders who are entitled to notice of and
to vote at any meeting or by written consent, or for the purpose of any other
action, the Administrative Trustee may from time to time fix a date, not more
than 90 days prior to the date of any meeting of Securityholders, as a record
date for the determination of the identity of the Securityholders for such
purposes.
Section 6.08. Acts of Securityholders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Declaration to be given, made or taken by Securityholders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Securityholders in person or by an agent duly
appointed in writing; and, except as otherwise expressly provided herein,
such action shall become effective when such instrument or instruments are
delivered to the Administrative Trustee. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Securityholders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this
Declaration and (subject to Section 7.02) conclusive, if made in the manner
provided in this Section.
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or
by a certificate of a notary public or other officer authorized by law to
take acknowledgments of deeds, certifying that the individual signing such
instrument or writing acknowledged to him/her the execution thereof. Where
such execution is by a signer acting in a capacity other than his/her
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his/her authority. The fact and date of the execution of
any such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner which any Trustee receiving the
same deems sufficient.
The ownership of Trust Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other act of the Securityholder of any Trust Security shall bind every
future Securityholder of the same Trust Security and the Securityholder of
every Trust Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustees or the Trust in reliance thereon, whether
or not notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder to
take any action hereunder with regard to any particular Trust Security may do
so with regard to all or any part of the Liquidation Amount of such Trust
Security or by one or more duly appointed agents, each of which may do so
pursuant to such appointment with regard to all or any part of such
Liquidation Amount.
If any dispute shall arise between the Securityholders and the
Administrative Trustee or among such Securityholders or Trustees with respect to
the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such
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Securityholder or Trustee under this Article VI, then the determination of
such matter by the Property Trustee shall be conclusive with respect to such
matter.
Section 6.09. Inspection of Records. Upon reasonable notice to the
Administrative Trustee and the Property Trustee, the records of the Trust
shall be open to inspection by Securityholders during normal business hours
for any purpose reasonably related to such Securityholder's interest as a
Securityholder.
ARTICLE VII
The Trustees
Section 7.01. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustees shall be as provided
by this Declaration and, in the case of the Property Trustee, also by the
Trust Indenture Act. The Property Trustee, other than during the occurrence
and continuance of an Event of Default, undertakes to perform only such
duties as are specifically set forth in this Declaration and, upon an Event
of Default, must exercise the same degree of care and skill as a prudent
person would exercise or use in the conduct of his/her own affairs. The
Trustees shall have all the privileges, rights and immunities provided by the
Delaware Business Trust Act. Notwithstanding the foregoing, no provision of
this Declaration shall require the Trustees to expend or risk their own funds
or otherwise incur any financial liability in the performance of any of their
duties hereunder, or in the exercise of any of their rights or powers, if
they shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably
assured to it. Whether or not therein expressly so provided, every provision
of this Declaration relating to the conduct or affecting the liability of or
affording protection to the Trustees shall be subject to the provisions of
this Section. Nothing in this Declaration shall be construed to release the
Property Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct. To the extent that,
at law or in equity, the Administrative Trustee has duties (including
fiduciary duties) and liabilities relating thereto to the Trust or to the
Securityholders, the Administrative Trustee shall not be liable to the Trust
or to any Securityholder for the Administrative Trustee's good faith reliance
on the provisions of this Declaration. The provisions of this Declaration,
to the extent that they restrict the duties and liabilities of the
Administrative Trustee otherwise existing at law or in equity, are agreed by
the Depositor and the Securityholders to replace such other duties and
liabilities of the Administrative Trustee.
(b) All payments made by the Property Trustee or any other Paying Agent
in respect of the Trust Securities shall be made only from the income and
proceeds from the Trust Property. Each Securityholder, by its acceptance of
a Trust Security, agrees that (i) it will look solely to the income and
proceeds from the Trust Property to the extent available for distribution to
it as herein provided and (ii) the Trustees are not personally liable to it
for any amount distributable in respect of any Trust Security or for any
other liability in respect of any Trust Security. This Section 7.01(b) does
not limit the liability of the Trustees expressly set forth elsewhere in this
Declaration or, in the case of the Property Trustee, in the Trust Indenture
Act.
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Section 7.02. Notice of Defaults; Direct Action by Securityholders.
Within 90 days after the occurrence of any Event of Default actually known to
the Property Trustee, the Property Trustee shall transmit, in the manner and
to the extent provided in Section 10.10, notice of such Event of Default to
the Securityholders, the Administrative Trustee and the Depositor, unless
such Event of Default shall have been cured or waived. If the Property
Trustee has failed to enforce its rights under this Declaration or the
Indenture, to the fullest extent permitted by law and subject to the terms of
this Declaration and the Indenture, any Securityholder may institute a legal
proceeding directly against any Person to enforce the Property Trustee's
rights under this Declaration or the Indenture with respect to Debentures
having a principal amount equal to the aggregate Liquidation Amount of the
Preferred Securities of such Securityholder without first instituting a legal
proceeding against the Property Trustee or any other Person. To the extent
that any action under the Indenture is entitled to be taken by the holders of
at least a specified percentage of the principal amount of the outstanding
Debentures, Holders of at least the same percentage of the Liquidation Amount
of the Outstanding Preferred Securities may also take such action in the name
of the Trust if such action has not been taken by the Property Trustee.
Notwithstanding the foregoing, if a Debenture Event of Default relating to
the Depositor's failure to pay the principal of or interest on the Debentures
has occurred and is continuing thereby resulting in an Event of Default
hereunder, then each Holder of Preferred Securities may institute a legal
proceeding directly against the Depositor for enforcement of payment to such
Holder, as provided in Section 508 of the Indenture.
Section 7.03. Certain Rights of Property Trustee. Subject to the
provisions of Section 7.01:
(a) the Property Trustee may rely and shall be protected in acting or
refraining from acting in good faith upon any resolution, Opinion of
Counsel, certificate, written representation of a Holder or transferee,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) if, other than during the occurrence and continuance of an
Event of Default, (i) in performing its duties under this Declaration,
the Property Trustee is required to decide between alternative courses
of action or (ii) in construing any of the provisions in this
Declaration, the Property Trustee finds the same ambiguous or
inconsistent with any other provisions contained herein or (iii) the
Property Trustee is unsure of the application of any provision of this
Declaration, then, except as to any matter as to which the Preferred
Securityholders are entitled to vote under the terms of this
Declaration, the Property Trustee shall deliver a notice to the
Depositor requesting written instructions of the Depositor as to the
course of action to be taken. The Property Trustee shall take such
action, or refrain from taking such action, as the Property Trustee
shall be instructed in writing to take, or to refrain from taking, by
the Depositor; provided, however, that if the Property Trustee does not
receive such instructions of the Depositor within ten Business Days
after it has delivered such notice, or such reasonably shorter period of
time set forth in such notice (which to the extent practicable shall not
be less than two Business Days), it
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may, but shall be under no duty to, take or refrain from taking such
action not inconsistent with this Declaration as it shall deem advisable
and in the best interests of the Securityholders, in which event the
Property Trustee shall have no liability except for its own negligent
action, its own negligent failure to act or its own willful misconduct;
(c) the Property Trustee may consult with counsel or other experts of
its selection and the advice or opinion of such counsel or other experts
with respect to legal matters or advice within the scope of such experts'
area of expertise shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;
(d) the Property Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Declaration at the request or
direction of any of the Securityholders pursuant to this Declaration,
unless such Securityholders shall have offered to the Property Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction;
(e) the Property Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
approval, bond, debenture, note or other evidence of indebtedness or other
paper or document, but the Property Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it may
see fit; and
(f) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
its agents or attorneys and the Property Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
Section 7.04. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates shall
be taken as the statements of the Trust, and the Trustees do not assume any
responsibility for their correctness. The Trustees shall not be accountable
for the use or application by the Depositor of the proceeds of the Debentures.
Section 7.05. May Hold Securities. Any Trustee or any other agent of
any Trustee or the Trust, in its individual or any other capacity, may become
the owner or pledgee of Trust Securities and, subject to Sections 7.08 and
7.13 and, except as provided in the definition of the term Outstanding in
Article I, may otherwise deal with the Trust with the same rights it would
have if it were not a Trustee or such other agent.
Section 7.06. Compensation; Indemnity; Fees.
(a) The Depositor agrees to pay to the Trustees from time to time such
compensation as shall have been agreed in writing with the Depositor for
all services
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rendered by them hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust).
(b) The Depositor agrees, except as otherwise expressly provided
herein, to reimburse the Trustees upon request for all reasonable expenses,
disbursements and advances incurred or made by the Trustees in accordance
with any provision of this Declaration (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to
its own negligent action, its own negligent failure to act or its own
wilful misconduct (or, in the case of the Administrative Trustee, any such
expense, disbursement or advance as may be attributable to his/her gross
negligence).
(c) The Depositor agrees to indemnify each of the Property and
Delaware Trustees or any predecessor of such Trustee for, and to hold
such Trustees harmless against, any and all loss, damage, claims,
liability, penalty or expense including taxes (other than taxes based on
the income of such Trustee) incurred without its own negligent action,
its own negligent failure to act or its wilful misconduct, arising out
of or in connection with the acceptance or administration of this
Declaration, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
(d)(i) The Depositor shall indemnify, to the full extent permitted by
law, any Company Indemnified Person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the Trust) by reason of the fact that
he is or was a Company Indemnified Person against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Trust, and, with
respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of
NOLO CONTENDERE or its equivalent, shall not, of itself, create a
presumption that the Company Indemnified Person did not act in good faith
and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Trust, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful;
(ii) The Depositor shall indemnify, to the full extent permitted by
law, any Company Indemnified Person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action or suit
by or in the right of the Trust to procure a judgment in its favor by
reason of the fact that he is or was a Company Indemnified Person against
expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if
he acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the Trust and except that no such
indemnification shall be made in respect
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of any claim, issue or matter as to which such Company Indemnified
Person shall have been adjudged to be liable to the Trust unless and
only to the extent that the Court of Chancery of Delaware or the court
in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of
all the circumstances of the case, such Person is fairly and reasonably
entitled to indemnity for such expenses which such Court of Chancery or
such other court shall deem proper;
(iii) To the extent that a Company Indemnified Person shall be
successful on the merits or otherwise (including dismissal of an action
without prejudice or the settlement of an action without admission of
liability) in defense of any action, suit or proceeding referred to in
paragraphs (i) and (ii) of this Section 7.06(d), or in defense of any
claim, issue or matter therein, he shall be indemnified, to the full extent
permitted by law, against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(iv) Expenses (including attorneys' fees) incurred by a Company
Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in paragraphs (i) and
(ii) of this Section 7.06(d) shall be paid by the Depositor in advance of
the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such Company Indemnified Person to repay
such amount if it shall ultimately be determined that he is not entitled to
be indemnified by the Depositor as authorized in this Section 7.06(d).
Notwithstanding the foregoing, no advance shall be made by the Depositor if
a determination is reasonably and promptly made (i) by independent legal
counsel in a written opinion or (ii) the Common Security Holder of the
Trust, that, based upon the facts known to the counsel or the Common
Security Holder at the time such determination is made, such Company
Indemnified Person acted in bad faith or in a manner that such person did
not believe to be in or not opposed to the best interests of the Trust, or,
with respect to any criminal proceeding, that such Company Indemnified
Person believed or had reasonable cause to believe his conduct was
unlawful. In no event shall any advance be made in instances where the
independent legal counsel or Common Security Holder reasonably determine
that such Person deliberately breached his duty to the Trust or its Common
or Preferred Security Holders.
(v) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other paragraphs of this Section 7.06(d) shall not
be deemed exclusive of any other rights to which those seeking
indemnification and advancement of expenses may be entitled under any
agreement, vote of stockholders or disinterested directors of the Depositor
or Preferred Security Holders of the Trust or otherwise, both as to action
in his official capacity and as to action in another capacity while holding
such office. All rights to indemnification under this Section 7.06(d)
shall be deemed to be provided by a contract between the Depositor and each
Company Indemnified Person who serves in such capacity at any time while
this Section 7.06(d) is in effect. Any repeal or modification of this
Section 7.06(d) shall not affect any rights or obligations then existing.
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(vi) The Depositor or the Trust may purchase and maintain insurance on
behalf of any person who is or was a Company Indemnified Person against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Debenture Issuer
would have the power to indemnify him against such liability under the
provisions of this Section 7.06(d).
(vii) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 7.06(d) shall, unless otherwise provided
when authorized or ratified, continue as to a Person who has ceased to be a
Company Indemnified Person and shall inure to the benefit of the heirs,
executors and administrators of such a Person.
No Trustee may claim any Lien or charge on any Trust Property as a result
of any amount due pursuant to this Section 7.06.
The provisions of this Section 7.06 shall survive the termination of this
Declaration.
Section 7.07. Corporate Property Trustee Required; Eligibility of
Trustees.
(a) There shall at all times be a Property Trustee hereunder. The
Property Trustee shall be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and surplus of at
least $50,000,000. If any such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of its supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such Person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
If at any time the Property Trustee with respect to the Trust Securities
shall cease to be eligible in accordance with the provisions of this Section,
it shall resign immediately in the manner and with the effect hereinafter
specified in this Article.
(b) There shall at all times be one or more Administrative Trustees
hereunder. Each Administrative Trustee shall be either a natural person who
is at least 21 years of age or a legal entity that shall act through one or
more persons authorized to bind that entity.
(c) There shall at all times be a Delaware Trustee. The Delaware
Trustee shall either be (i) a natural person who is at least 21 years of age
and a resident of the State of Delaware or (ii) a legal entity with its
principal place of business in the State of Delaware and that otherwise meets
the requirements of applicable Delaware law that shall act through one or
more persons authorized to bind such entity.
Section 7.08. Conflicting Interests. If the Property Trustee has or shall
acquire a conflicting interest within the meaning of the Trust Indenture Act,
the Property 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 Declaration.
Section 7.09. Co-Trustees and Separate Trustee. Unless an Event of
Default shall have occurred and be continuing, at any time or times, for the
purpose of meeting the legal
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requirements of the Trust Indenture Act or of any jurisdiction in which any
part of the Trust Property may at the time be located, the Depositor and the
Administrative Trustee (and if more than one Administrative Trustee, by
agreed action of the majority of such Trustees) shall have power (i) to
appoint, and upon the written request of the Administrative Trustee the
Depositor shall for such purpose join with the Administrative Trustee in the
execution, delivery, and performance of all instruments and agreements
necessary or proper to appoint one or more Persons approved by the Property
Trustee either to act as co-trustee, jointly with the Property Trustee, of
all or any part of such Trust Property, or to the extent required by law to
act as separate trustee of any such property, in either case with such powers
as may be provided in the instrument of appointment, and (ii) to vest in such
Person or Persons in the capacity aforesaid, any property, title, right or
power deemed necessary or desirable, subject to the other provisions of this
Section. If the Depositor does not join in such appointment within 15 days
after the receipt by it of a request so to do, or in case a Debenture Event
of Default has occurred and is continuing, the Property Trustee alone shall
have power to make such appointment. Any co-trustee or separate trustee
appointed pursuant to this Section shall either be (i) a natural person who
is at least 21 years of age and a resident of the United States or (ii) a
legal entity with its principal place of business in the United States that
shall act through one or more persons authorized to bind such entity.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged, and
delivered by the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(a) The Trust Securities shall be executed and delivered and all
rights, powers, duties, and obligations hereunder in respect of the custody
of securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustees specified hereunder, shall be
exercised, solely by such Trustees and not by such co-trustee or separate
trustee.
The rights, powers, duties, and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by
such appointment shall be conferred or imposed upon and exercised or
performed by the Property Trustee or by the Property Trustee and such
co-trustee or separate trustee jointly, as shall be provided in the
instrument appointing such co-trustee or separate trustee, except to the
extent that under any law of any jurisdiction in which any particular act
is to be performed, the Property Trustee shall be incompetent or
unqualified to perform such act, in which event such rights, powers, duties
and obligations shall be exercised and performed by such co-trustee or
separate trustee.
(b) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may accept
the resignation of or remove
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any co-trustee or separate trustee appointed under this Section, and, in
case a Debenture Event of Default has occurred and is continuing, the
Property Trustee shall have power to accept the resignation of, or
remove, any such co-trustee or separate trustee without the concurrence
of the Depositor. Upon the written request of the Property Trustee, the
Depositor shall join with the Property Trustee in the execution,
delivery, and performance of all instruments and agreements necessary or
proper to effectuate such resignation or removal. A successor to any
co-trustee or separate trustee so resigned or removed may be appointed
in the manner provided in this Section 7.09.
(c) No co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Property Trustee, or any
other trustee hereunder.
(d) The Property Trustee shall not be liable by reason of any
act of a co-trustee or separate trustee.
(e) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate trustee.
Section 7.10. Resignation and Removal; Appointment of Successor. No
resignation or removal of any Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 7.11.
Subject to the immediately preceding paragraph, any Trustee may resign at
any time with respect to the Trust Securities by giving written notice thereof
to the Securityholders.
Unless an Event of Default shall have occurred and be continuing, any
Trustee may be removed at any time by Act of the Holder of the Common
Securities. If an Event of Default shall have occurred and be continuing, the
Property Trustee or the Delaware Trustee, or both of them, may be removed at
such time only by Act of the Holders of at least a majority in Liquidation
Amount of the Outstanding Preferred Securities, delivered to such Trustee (in
its individual capacity and on behalf of the Trust). The Administrative Trustee
may only be removed by the Holder of Common Securities at any time.
If the instrument of acceptance by the successor Trustee required by
Section 7.11 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation or removal, the Trustee may petition,
at the expense of the Depositor, any court of competent jurisdiction for the
appointment of a successor Trustee.
If any Trustee shall resign, be removed or become incapable of acting as
Trustee, or if a vacancy shall occur in the office of any Trustee for any cause,
at a time when no Event of Default shall have occurred and be continuing, the
Holder of Common Securities, by Act of the Holder of Common Securities delivered
to the retiring Trustee, shall promptly appoint a successor Trustee or Trustees
and the Trust, and the retiring Trustee shall comply with the applicable
requirements of Section 7.11. If the Property Trustee or the Delaware Trustee
shall resign, be removed or
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become incapable of continuing to act as the Property Trustee or the Delaware
Trustee, as the case may be, at a time when an Event of Default has occurred
and is continuing, the Holders of Preferred Securities, by Act of the
Securityholders of at least a majority in Liquidation Amount of the
Outstanding Preferred Securities delivered to the retiring Trustee, shall
promptly appoint a successor Trustee or Trustees, and such successor Trustee
shall comply with the applicable requirements of Section 7.11. If any
Administrative Trustee shall resign, be removed or become incapable of acting
as Administrative Trustee at a time when an Event of Default shall have
occurred and be continuing, the Holder of Common Securities shall appoint a
successor Administrative Trustee. If no successor Trustee shall have been so
appointed by the Holder of Common Securities or the Holders of Preferred
Securities and accepted appointment in the manner required by Section 7.11,
any Securityholder who has been a Securityholder of Trust Securities for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
The Property Trustee shall give notice of each resignation and each removal
of a Trustee and each appointment of a successor Trustee to all Securityholders
in the manner provided in Section 10.10 and shall give notice to the Depositor.
Each notice shall include the name of the successor Trustee and the address of
its Corporate Trust Office if it is the Property Trustee.
Notwithstanding the foregoing or any other provision of this Declaration,
in the event any Administrative Trustee or Delaware Trustee who is a natural
person dies or becomes, in the opinion of the Depositor, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity may
be filled by (a) the unanimous act of the remaining Administrative Trustees if
there are at least two of them or (b) otherwise by the Depositor (with the
successor in each case being a Person who satisfies the eligibility requirements
for Administrative Trustee or for the Delaware Trustee, as the case may be, set
forth in Section 7.07).
Section 7.11. Acceptance of Appointment by Successor. In case of the
appointment hereunder of a successor Trustee, the retiring Trustee and each
successor Trustee shall execute and deliver to the Trust and the retiring
Trustee an amendment hereto wherein each successor Trustee shall accept such
appointment and which (a) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each successor Trustee all
the rights, powers, trusts and duties of the retiring Trustee and (b) shall add
to or change any of the provisions of this Declaration 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 amendment
shall constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee and upon
the execution and delivery of such amendment the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein and each
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee and the Trust; but, on request of the Trust or any successor Trustee,
such retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all Trust Property, all proceeds thereof and money held by such retiring
Trustee hereunder.
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Upon request of any such successor Trustee, the Trust shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to in the
first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 7.12. Merger, Conversion, Consolidation or Succession to
Business. Any Person into which any of the Trustees may be merged or
converted or with which it may be consolidated, or any Person resulting from
any merger, conversion or consolidation to which such Trustee shall be a
party, or any Person succeeding to all or substantially all the corporate
trust business of such Trustee, shall be the successor of such Trustee
hereunder, provided such Person shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
Section 7.13. Preferential Collection of Claims Against Depositor or
Trust. If and when the Property Trustee or the Delaware Trustee shall be or
become a creditor (whether directly or indirectly, secured or unsecured) of
the Depositor or the Trust (or any other obligor upon the Debentures or the
Trust Securities), including under the terms of Section 7.05 hereof, the
Property Trustee or the Delaware Trustee, as the case may be, shall be
subject to and shall take all actions necessary in order to comply with the
provisions of the Trust Indenture Act regarding the collection of claims
against the Depositor or Trust (or any such other obligor).
Section 7.14. Reports by Property Trustee. The Property Trustee shall
transmit to Holders such reports concerning the Property Trustee and its
actions under this Declaration as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto. If
required by Section 313(a) of the Trust Indenture Act, the Property Trustee
shall, within 60 days after each May 31 following the date of this
Declaration deliver to Holders a brief report, dated as of such May 31, which
complies with the provisions of such Section 313(a).
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Property Trustee with each stock exchange upon which
any Preferred Securities are then listed, with the Commission and with the
Trust. The Trust will promptly notify the Property Trustee when any
Preferred Securities are listed on any stock exchange.
Section 7.15. Reports to the Property Trustee. The Depositor and the
Administrative Trustee on behalf of the Trust shall provide to the Property
Trustee such documents, reports and information as required by Section 314 of
the Trust Indenture Act (if any) and the compliance certificate required by
Section 314(a) of the Trust Indenture Act in the form, in the manner and at
the times required by Section 314 of the Trust Indenture Act.
Section 7.16. Evidence of Compliance with Conditions Precedent. The
Depositor and the Administrative Trustee on behalf of the Trust shall provide to
the Property Trustee evidence of
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compliance with the conditions precedent, if any, provided for in this
Declaration that relate to any of the matters set forth in Section 314(c) of
the Trust Indenture Act.
Section 7.17. Statements Required in Officers' Certificate and Opinion
of Counsel.
Each Officers' Certificate and Opinion of Counsel with respect to
compliance with a covenant or condition provided for in this Declaration
shall include:
(1) a statement that each Person making such Officers' Certificate or
Opinion of Counsel 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
Officers' Certificate or Opinion of Counsel are based;
(3) a statement that, in the opinion of each such Person, such Person
has made such examination or investigation as is necessary to enable such
Person to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement that, in the opinion of such Person, such covenant or
condition has been complied with; provided, however, that with respect to
matters of fact not involving any legal conclusion, an Opinion of Counsel
may rely on an Officers' Certificate or certificates of public officials.
Section 7.18. Number of Trustees.
(a) The number of Trustees shall be three, provided that the Holder of all
of the Common Securities by written instrument may increase and, if increased,
may decrease the number of Administrative Trustees.
(b) If a Trustee ceases to hold office for any reason and the number of
Administrative Trustees is not reduced pursuant to Section 7.18(a), or if the
number of Trustees is increased pursuant to Section 7.18(a), a vacancy shall
occur. The vacancy shall be filled with a Trustee appointed in accordance
with Section 7.10.
(c) The death, resignation, retirement, removal, bankruptcy,
dissolution, termination, incompetence or incapacity to perform the duties of
a Trustee shall not operate to dissolve, terminate or annul the Trust.
Whenever a vacancy shall occur, until such vacancy is filled by the
appointment of an Administrative Trustee in accordance with Section 7.10, the
Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Declaration), shall have all the
powers granted to the Administrative Trustee and shall discharge all the
duties imposed upon the Administrative Trustees by this Declaration.
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Section 7.19. Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent with
applicable law, delegate to any natural person over the age of 21 his or her
power for the purpose of executing any documents contemplated in Section
2.07(a), including any registration statement or amendment thereto filed with
the Commission, or making any other governmental filing; and
(b) the Administrative Trustees shall have power to delegate from time
to time to such of their number, if there is more than one Administrative
Trustee, or to the Depositor the doing of such things and the execution of
such instruments either in the name of the Trust or the names of the
Administrative Trustees or otherwise as the Administrative Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law
or contrary to the provisions of the Trust, as set forth herein.
Section 7.20. Voting. Except as otherwise provided in this Declaration,
the consent or vote of the Trustees shall be approved by not less than a
majority of the Administrative Trustees.
ARTICLE VIII
Dissolution and Liquidation
Section 8.01. Dissolution Upon Expiration Date. Unless earlier dissolved,
the Trust shall automatically dissolve on ________ __, 2053 (the "Expiration
Date").
Section 8.02. Early Dissolution. The earliest to occur of any of the
following events is an "Early Dissolution Event" upon the occurrence of which
the Trust shall be dissolved:
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of the Depositor or an acceleration of the
maturity of the Debentures pursuant to Section 502 of the Indenture;
(b) upon the election of the Depositor to liquidate the Trust and
cause the distribution of a Like Amount of Debentures to the Holders of
the Trust Securities;
(c) the redemption of all of the Trust Securities; and
(d) an order for dissolution of the Trust shall have been entered by a
court of competent jurisdiction.
The election of the Depositor pursuant to Section 8.02(b) shall be made by
the Depositor giving written notice to the Trustees not less than 30 days prior
to the date of distribution of the Debentures. Such notice shall specify the
date of distribution of the Debentures and shall be accompanied by an Opinion of
Counsel that such event will not be a taxable event to the Holders of the Trust
Securities for Federal income tax purposes.
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Section 8.03. Dissolution. The respective obligations and
responsibilities of the Trustees and the Trust continued hereby shall
terminate upon the latest to occur of the following: (a) the distribution by
the Property Trustee to Securityholders upon the liquidation of the Trust
pursuant to Section 8.04, or upon the redemption of all of the Trust
Securities pursuant to Section 4.02, of all amounts required to be
distributed hereunder upon the final payment of the Trust Securities; (b) the
payment of any expenses owed by the Trust; and (c) the discharge of all
administrative duties of the Administrative Trustee, including the
performance of any tax reporting obligations with respect to the Trust or the
Securityholders.
Section 8.04. Liquidation.
(a) If an Early Dissolution Event specified in clause (a), (c) or (d) of
Section 8.02 occurs or upon the Expiration Date, the Trust shall be
liquidated by the Trustees as expeditiously as the Trustees determine to be
possible by distributing, after satisfaction of liabilities to creditors of
the Trust as provided by applicable law, to each Securityholder a Like Amount
of Debentures, subject to Section 8.04(d). If an Early Dissolution Event
specified in clause (b) occurs, the Trust shall be liquidated by the Trustee
on the date of distribution of the Debentures specified by the Depositor in
its notice delivered pursuant to Section 8.02. Notice of liquidation shall
be given by the Property Trustee by first-class mail, postage prepaid, mailed
not later than 30 nor more than 60 days prior to the Liquidation Date to each
Holder of Trust Securities at such Holder's address appearing in the
Securities Register. All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Debentures; and
(iii) provide such information with respect to the mechanics by
which Holders may exchange Trust Securities Certificates for certificates
evidencing Debentures, or, if Section 8.04(d) applies, receive a
Liquidation Distribution, as the Administrative Trustee or the Property
Trustee shall deem appropriate.
(b) In order to effect the liquidation of the Trust and distribution of
the Debentures to Securityholders, the Property Trustee, either itself acting
as exchange agent or through the appointment of a separate exchange agent,
shall establish such procedures as it shall deem appropriate to effect the
distribution of Debentures in exchange for the Outstanding Trust Securities
Certificates.
(c) Except where Section 8.02(c) or 8.04(d) applies, on or after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) certificates representing a Like Amount of Debentures will
be issued to Holders of Trust Securities Certificates, upon surrender of such
certificates to the Administrative Trustee or its agent for exchange, (iii)
the Depositor shall use its best efforts to have the Debentures listed on the
New York Stock Exchange or such other exchange as the Preferred Securities
are then listed and shall take any
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reasonable action necessary to effect the distribution of the Debentures,
(iv) any Trust Securities Certificates not so surrendered for exchange will
be deemed to represent a Like Amount of Debentures, accruing interest at the
rate provided for in the Debentures from the last Distribution Date on which
a Distribution was made on such Trust Securities Certificates until such
certificates are so surrendered (and until such certificates are so
surrendered, no payments or interest or principal will be made to Holders of
Trust Securities Certificates with respect to such Debentures) and (v) all
rights of Securityholders holding Trust Securities will cease, except the
right of such Securityholders to receive Debentures upon surrender of Trust
Securities Certificates.
(d) In the event that, notwithstanding the other provisions of this
Section 8.04, whether because of an order for dissolution entered by a court
of competent jurisdiction or otherwise, distribution of the Debentures in the
manner provided herein is determined by the Property Trustee not to be
practical, the Trust Property shall be liquidated, and the Trust shall be
dissolved, by the Property Trustee in such manner as the Property Trustee
determines. In such event, on the date of the dissolution of the Trust,
Securityholders will be entitled to receive out of the assets of the Trust
available for distribution to Securityholders, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, an
amount equal to the Liquidation Amount per Trust Security plus accumulated
and unpaid Distributions thereon to the date of payment (such amount being
the "Liquidation Distribution"). If, upon any such dissolution, the
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts
payable by the Trust on the Trust Securities shall be paid on a pro rata
basis (based upon Liquidation Amounts). The Holder of the Common Securities
will be entitled to receive Liquidation Distributions upon any such
dissolution pro rata (determined as aforesaid) with Holders of Preferred
Securities, except that, if a Debenture Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities, and no Liquidation Distribution will be paid to the Holders of
the Common Securities unless and until receipt by all Holders of the
Preferred Securities of the entire Liquidation Distribution payable in
respect thereof.
ARTICLE IX
Mergers, Etc.
Section 9.01. Mergers, Consolidations, Amalgamations or Replacements of
the Trust. The Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to any Person except as described below
or under Article VIII. The Trust may, at the request of the Depositor, with the
consent of the Administrative Trustee and without the consent of the Holders of
the Preferred Securities, merge with or into, consolidate, amalgamate, or be
replaced by, a trust organized as such under the laws of any State; provided,
that (i) such successor entity either (a) expressly assumes all of the
obligations of the Trust with respect to the Preferred Securities or (b)
substitutes for the Preferred Securities other securities having substantially
the same terms as the Preferred Securities (the "Successor Securities") so long
as the Successor Securities rank the same as the Preferred Securities rank with
respect to the payment of Distributions and payments
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upon liquidation and redemption, (ii) the Depositor expressly appoints a
trustee of such successor entity possessing the same powers and duties as the
Property Trustee with respect to the Debentures, (iii) the Successor
Securities are listed, or any Successor Securities will be listed upon
notification of issuance, on any national securities exchange or other
organization on which the Preferred Securities are then listed, (iv) such
merger, consolidation, amalgamation or replacement does not cause the
Preferred Securities (including any Successor Securities) to be downgraded by
any nationally recognized statistical rating organization, (v) such merger,
consolidation, amalgamation or replacement does not adversely affect the
rights, preferences and privileges of the Holders of the Preferred Securities
(including any Successor Securities) in any material respect, (vi) such
successor entity has a purpose substantially similar to that of the Trust,
(vii) prior to such merger, consolidation, amalgamation or replacement, the
Depositor has received an Opinion of Counsel to the effect that (a) such
merger, consolidation, amalgamation or replacement does not adversely affect
the rights, preferences and privileges of the Holders of the Preferred
Securities (including any Successor Securities) in any material respect, and
(b) following such merger, consolidation, amalgamation or replacement,
neither the Trust nor such successor entity will be required to register as
an Investment Company and (viii) the Depositor or any permitted successor
assignee owns all of the common securities of such successor entity and
guarantees the obligations of such successor entity under the Successor
Securities at least to the extent provided by the Guarantee and this
Declaration. Notwithstanding the foregoing, the Trust shall not, except with
the consent of all Holders of the Preferred Securities, merge with or into,
consolidate, amalgamate, or be replaced by, any other entity or permit any
other entity to consolidate, amalgamate, merge with or into, or replace it if
such consolidation, amalgamation, merger or replacement would cause the Trust
or the successor entity not to be classified as a grantor trust for United
States Federal income tax purposes.
ARTICLE X
Miscellaneous Provisions
Section 10.01. Limitation of Rights of Securityholders. The death or
incapacity, bankruptcy, dissolution and termination of any Person having an
interest, beneficial or otherwise, in Trust Securities shall not operate to
terminate this Declaration, or dissolve, terminate or annul the Trust, nor
entitle the legal representatives or heirs of such Person or any Securityholder
for such Person, to claim an accounting, take any action or bring any proceeding
in any court for a partition or winding-up of the arrangements contemplated
hereby, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
Section 10.02. Amendment.
(a) This Declaration may be amended from time to time by the Trustees
and the Depositor, without the consent of any Securityholders, to cure any
ambiguity, defect or inconsistency or make any other change which does not
adversely affect in any material respect the interests of any Holder of
Preferred Securities. Any amendments of this Declaration pursuant to Section
10.02(a) shall become effective when notice thereof is given to the
Securityholders.
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(b) Except as provided in Section 10.02(a) and 10.02(c) hereof, any
provision of this Declaration may be amended by the Trustees and the
Depositor with the consent of Holders of at least a majority of the aggregate
Liquidation Amount of the Outstanding Preferred Securities.
(c) In addition to and notwithstanding any other provision in this
Declaration, without the consent of each affected Securityholder (such
consent being obtained in accordance with Section 6.03 or 6.06 hereof), this
Declaration may not be amended to (i) change the amount, timing or currency
of any Distribution or Liquidation Distribution on the Trust Securities or
otherwise adversely affect the method of payment of any Distribution or
Liquidation Distribution required to be made in respect of the Trust
Securities as of a specified date; (ii) change the redemption provisions of
the Trust Securities; (iii) restrict the right of a Securityholder to
institute suit for the enforcement of any such payment contemplated in (i) or
(ii) above on or after the related date; (iv) modify the first sentence of
Section 2.06(a) hereof; (v) authorize or issue any beneficial interest in the
Trust other than as contemplated by this Declaration as of the date hereof;
(vi) change the conditions precedent for the Depositor to elect to dissolve
the Trust and distribute the Debentures to Holders of Trust Securities as set
forth in Section 8.02; or (vii) affect the limited liability of any Holder of
Preferred Securities, and, notwithstanding any other provision herein,
without the unanimous consent of the Securityholders (such consent being
obtained in accordance with Section 6.03 or 6.06 hereof), paragraphs (b) and
(c) of this Section 10.02 may not be amended.
(d) Notwithstanding any other provisions of this Declaration, no
amendment to this Declaration shall be made without receipt by the Trust of
an Opinion of Counsel experienced in such matters to the effect that such
amendment will not affect the Trust's status as a grantor trust for United
States Federal income tax purposes or its exemption from regulation as an
Investment Company.
(e) Notwithstanding anything in this Declaration to the contrary,
without the consent of the Depositor, this Declaration may not be amended in
a manner which imposes any additional obligation on the Depositor.
(f) In the event that any amendment to this Declaration is made, the
Administrative Trustee shall promptly provide to the Depositor a copy of such
amendment.
(g) In executing any amendment to this Declaration, the Property Trustee
shall be entitled to receive, and (subject to Section 7.01) shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution
of such amendment is authorized or permitted by this Declaration. Except as
contemplated by Section 7.11, a Trustee may, but shall not be obligated to,
enter into any amendment to this Declaration which affects the Trustee's own
rights, duties or immunities under this Declaration or otherwise.
Section 10.03. Severability. In case any provision in this Declaration or
in the Trust Securities Certificates shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
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<PAGE>
Section 10.04. Fiscal Year. The fiscal year ("Fiscal Year") of the
Trust shall be the calendar year, or such other year as is required by the
Code.
Section 10.05. Certain Accounting Matters. At all times during the
existence of the Trust, the Administrative Trustee shall keep, or cause to be
kept, full books of account, records and supporting documents, which shall
reflect in reasonable detail, each transaction of the Trust. The books of
account shall be maintained on the accrual method of accounting, in
accordance with generally accepted accounting principles, consistently
applied. The Trust shall use the accrual method of accounting for United
States federal income tax purposes. The books of account and the records of
the Trust shall be examined by and reported upon as of the end of each Fiscal
Year of the Trust by a firm of independent certified public accountants
selected by the Administrative Trustee.
Section 10.06. Governing Law. THIS DECLARATION AND THE RIGHTS AND
OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH
RESPECT TO THIS DECLARATION AND THE TRUST SECURITIES SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES.
Section 10.07. Payments Due on Non-Business Day. If the date fixed for
any payment on any Trust Security shall be a day which is not a Business Day,
then such payment need not be made on such date but may be made on the next
succeeding day which is a Business Day (except as otherwise provided herein,
with the same force and effect as though made on the date fixed for such
payment), and no interest shall accumulate thereon for the period after such
date to the date of payment on such succeeding day.
Section 10.08. Successors and Assigns. This Declaration shall be
binding upon and shall inure to the benefit of any successor to the Trust or
successor Trustee or both, including any successor by operation of law.
Except in connection with a consolidation, merger or sale involving the
Depositor that is permitted under Article Eight of the Indenture and pursuant
to which the assignee agrees in writing to perform the Depositor's
obligations hereunder, the Depositor shall not assign its obligations
hereunder.
Section 10.09. Headings. The Article and Section headings are for
convenience only and shall not affect the construction of this Declaration.
Section 10.10. Reports, Notices and Demands. Any report, notice,
demand or other communication which by any provision of this Declaration is
required or permitted to be given or served to or upon any Securityholder or
the Depositor may be given or served in writing by deposit thereof,
first-class postage prepaid in the United States mail, hand delivery or
facsimile transmission, in each case, addressed, (a) in the case of a Holder
of a Preferred Security, to such Holder of a Preferred Security as such
Securityholder's name and address may appear on the Securities Register; and
(b) in the case of the Holder of a Common Security or the Depositor, to
Public Service Company of Colorado, 1225 17th Street, Denver Colorado 80202,
Attention:
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<PAGE>
General Counsel, facsimile no.: (303)294-8815. Such notice,
demand or other communication to or upon a Securityholder or the Depositor
shall be deemed to have been sufficiently given or made, for all purposes,
upon hand delivery, mailing or transmission.
Any notice, demand or other communication which by any provision of this
Declaration is required or permitted to be given or served to or upon the
Trust, the Property Trustee or the Administrative Trustee shall be given in
writing addressed (until another address is published by the Trust) as
follows: (a) with respect to the Property Trustee to The Bank of New York,
101 Barclay Street, Floor 21 West, New York, New York, Attention: Corporate
Trust Office; (b) with respect to the Delaware Trustee to The Bank of New
York (Delaware), White Clay Center, Route 273, Newark, Delaware 19711,
Attention: Corporate Trust Department; and (c) with respect to the
Administrative Trustee, to the address above for notices to the Depositor,
marked "Attention: Administrative Trustee of PSCO Capital Trust I c/o General
Counsel." Such notice, demand or other communication to or upon the Trust,
the Delaware Trustee or the Property Trustee shall be deemed to have been
sufficiently given or made only upon actual receipt of the writing by the
Trust, the Delaware Trustee or the Property Trustee.
Section 10.11. Agreement Not to Petition. Each of the Trustees and the
Depositor agree for the benefit of the Securityholders that, until at least
one year and one day after the Trust has been terminated in accordance with
Article VIII, they shall not file, or join in the filing of, a petition
against the Trust under any Bankruptcy Laws or otherwise join in the
commencement of any proceeding against the Trust under any Bankruptcy Law.
In the event the Depositor or any of the Trustees takes action in violation
of this Section 10.11, the Property Trustee agrees, for the benefit of
Securityholders, that at the expense of the Depositor, it shall file an
answer with the bankruptcy court or otherwise properly contest the filing of
such petition by the Depositor or any of the Trustees, as applicable, against
the Trust or the commencement of such action and raise the defense that the
Depositor or Trustee, as applicable, has agreed in writing not to take such
action and should be stopped and precluded therefrom and such other defenses,
if any, as counsel for the Property Trustee or the Trust may assert. The
provisions of this Section 10.11 shall survive the termination of this
Declaration.
Section 10.12. Trust Indenture Act; Conflict with Trust Indenture Act.
(a) This Declaration is subject to the provisions of the Trust Indenture
Act that are required to be part of this Declaration and shall, to the extent
applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a trustee
for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Declaration by any
of the provisions of the Trust Indenture Act, such required provision shall
control. If any provision of this Declaration modifies or excludes any
provision of the Trust Indenture Act which may be so modified or excluded,
the latter
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<PAGE>
provision shall be deemed to apply to this Declaration as so modified or
excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Declaration shall
not affect the nature of the Trust Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
Section 10.13. Acceptance of Terms of Declaration, Guarantee and
Indenture. THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS DECLARATION AND
AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND
THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH
SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS DECLARATION
SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH
SECURITYHOLDER AND SUCH OTHERS.
ARTICLE XI
Representations of Property Trustee and Delaware Trustee
Section 11.01. Representations and Warranties of Property Trustee. The
Trustee that acts as initial Property Trustee represents and warrants to the
Trust and to the Depositor at the date of this Declaration, and each Successor
Property Trustee represents and warrants to the Trust and the Depositor at the
time of the Successor Property Trustee's acceptance of its appointment as
Property Trustee that:
(a) the Property Trustee is a banking corporation with trust powers,
duly organized, validly existing and in good standing under the laws of its
state of organization, with trust power and authority to execute and
deliver, and to carry out and perform its obligations under the terms of,
the Declaration;
(b) the execution, delivery and performance by the Property Trustee
of the Declaration has been duly authorized by all necessary corporate
action on the part of the Property Trustee. The Declaration has been duly
executed and delivered by the Property Trustee, and it constitutes a legal,
valid and binding obligation of the Property Trustee, enforceable against
it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting
creditors' rights generally and to generally principles of equity and the
discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law);
-45-
<PAGE>
(c) the execution, delivery and performance of the Declaration by the
Property Trustee does not conflict with or constitute a breach of the
Articles of Organization or By-laws of the Property Trustee; and
(d) no consent, approval or authorization of, or registration with or
notice to, any State or Federal banking authority is required for the
execution, delivery or performance by the Property Trustee, of the
Declaration.
Section 11.02. Representations and Warranties of Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents and warrants
to the Trust and to the Sponsor at the date of this Declaration, and each
Successor Delaware Trustee represents and warrants to the Trust and the Sponsor
at the time of the Successor Delaware Trustee's acceptance of its appointment as
Delaware Trustee that:
(a) The Delaware Trustee is a Delaware banking corporation with trust
powers, duly organized, validly existing and in good standing under the
laws of the State of Delaware, with trust power and authority to execute
and deliver, and to carry out and perform its obligations under the terms
of, the Declaration;
(b) The Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and the Declaration. The
Declaration under Delaware law constitutes a legal, valid and binding
obligation of the Delaware Trustee, enforceable against it in accordance
with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the
court (regardless of whether the enforcement of such remedies is considered
in a proceeding in equity or at law);
(c) No consent, approval or authorization of, or registration with or
notice to, any State or Federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee, of the
Declaration; and
(d) The Delaware Trustee is a natural person who is a resident of the
State of Delaware or, if not a natural person, an entity which has its
principal place of business in the State of Delaware.
-46-
<PAGE>
EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.
PUBLIC SERVICE COMPANY OF
COLORADO, as Depositor
By:
---------------------------------------
Name:
Title:
THE BANK OF NEW YORK
Property Trustee
By:
---------------------------------------
Name:
Title:
THE BANK OF NEW YORK (DELAWARE)
as Delaware Trustee
By:
---------------------------------------
Name:
Title:
NANCY FELKER,
as Administrative Trustee
--------------------------------------------
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<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
OF
PSCO CAPITAL TRUST I
THIS CERTIFICATE OF TRUST of PSCO Capital Trust I (the "Trust"), dated
as of February 27, 1998, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. C. Section 3801, et seq.).
(i) Name. The name of the business trust being formed hereby is
PSCO Capital Trust I.
(ii) Delaware Trustee. The name and business address of the
trustee of the Trust in the State of Delaware are :
The Bank of New York (Delaware)
White Clay Center, Route 273
Newark, DE 19711
(iii) Counterparts. This Certificate of Trust may be executed in
one or more counterparts, all of which together shall constitute one and the
same instrument.
(iv) Effective Date. This Certificate of Trust shall be
effective as of its filing.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust,
have executed this Certificate of Trust as of the date first above written.
The Bank of New York, as Trustee
By:
---------------------------------------
Name:
Title:
The Bank of New York, Delaware, as Trustee
By:
---------------------------------------
Name:
Title:
--------------------------------------------
Nancy Felker, as Trustee
A-1
<PAGE>
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS PROVIDED IN SECTION 5.10
OF THE DECLARATION REFERRED TO HEREIN
Certificate Number
B-1
Number of Common Securities
-------
Certificate Evidencing Common Securities
of
PSCO Capital Trust I
_____% Common Securities
(liquidation amount $__ per Common Security)
PSCO Capital Trust I, a statutory business trust created under the laws of
the State of Delaware (the "Trust"), hereby certifies that Public Service
Company of Colorado (the "Holder") is the registered owner of
________________________ (_______) common securities of the Trust representing
undivided beneficial interests in the assets of the Trust and designated as the
_____% Common Securities (liquidation amount $__ per Common Security) (the
"Common Securities"). In accordance with Section 5.10 of the Declaration (as
defined below) the Common Securities are transferable upon the books and records
of the Trust only to the Holder or any Affiliate of the Holder, subject to the
procedures and conditions set forth in Section 5.10 of the Declaration. The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Common Securities are set forth in, and this certificate and
the Common Securities represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated Declaration of
the Trust dated as of ___________ ___, 1998 as the same may be amended from time
to time (the "Declaration"). The Trust will furnish a copy of the Declaration
to the Holder without charge upon written request to the Trust at its principal
place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Declaration
and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, the Administrative Trustee of the Trust has executed
this certificate this ____ day of ________, 1998.
PSCO CAPITAL TRUST I
By:
-----------------------------------------------
Name: Nancy Felker, as Administrative Trustee
B-1
<PAGE>
EXHIBIT C
Certificate Number
--------
Number of Preferred Securities
CUSIP NO. __________
Certificate Evidencing Preferred Securities
of
PSCO Capital Trust I
_____% [Trust Originated Preferred Securities] [Capital Securities]
(liquidation amount $__ per Preferred Security)
PSCO Capital Trust I, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that Cede & Co. (the
"Holder") is the registered owner of _________, _________________________
(_________) preferred securities of the Trust representing an undivided
beneficial interest in the assets of the Trust and designated the PSCO
Capital Trust I _____% [Trust Originated Preferred Securities (liquidation
amount $25 per Preferred Security)] [Capital Securities (liquidation amount
$1,000 per Preferred Security)] (the "Preferred Securities"). The Preferred
Securities are transferable on the books and records of the Trust, in person or
by a duly authorized attorney, upon surrender of this certificate duly
endorsed and in proper form for transfer as provided in Section 5.04 of the
Declaration (as defined below). The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Preferred
Securities are set forth in, and this certificate and the Preferred
Securities represented hereby are issued and shall in all respects be subject
to the terms and provisions of, the Amended and Restated Declaration of the
Trust dated as of ____________, 1998 as the same may be amended from time to
time (the "Declaration"). The Holder is entitled to the benefits of the
Preferred Securities Guarantee Agreement entered into by Public Service
Company of Colorado, a Colorado corporation, and The Bank of New York as
guarantee trustee, dated as of __________ ___, 1998 (the "Preferred
Securities Guarantee") to the extent provided therein, together with the
obligations of Public Service Company of Colorado under the Declaration, its
Deferrable Interest Subordinated Debentures, Series ___ and the Indenture
related to such Deferrable Interest Subordinated Debentures. The Trust will
furnish a copy of the aforementioned agreements and instruments to the Holder
without charge upon written request to the Trust at its principal place of
business or registered office.
Upon receipt of this certificate, the Holder is bound by the Declaration
and is entitled to the benefits thereunder.
C-1
<PAGE>
IN WITNESS WHEREOF, the Administrative Trustee of the Trust has executed
this certificate this ____ day of ______________ 1998.
PSCO CAPITAL TRUST I
By:
-----------------------------------------------
Name: Nancy Felker, as Administrative Trustee
Countersigned:
THE BANK OF NEW YORK, as Securities Registrar
By:
- -----------------------------------------------
Name:
Title:
[To be included on face of Book-Entry Preferred Securities Certificate]
THIS PREFERRED SECURITY IS A BOOK-ENTRY PREFERRED SECURITIES CERTIFICATE
WITHIN THE MEANING OF THE DECLARATION PREVIOUSLY REFERRED TO AND IS REGISTERED
IN THE NAME OF THE DEPOSITORY TRUST COMPANY (THE "DEPOSITORY") OR A NOMINEE OF
THE DEPOSITORY. THIS PREFERRED SECURITY IS EXCHANGEABLE FOR PREFERRED
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE DECLARATION AND NO
TRANSFER OF THIS PREFERRED SECURITY (OTHER THAN A TRANSFER OF THIS PREFERRED
SECURITY 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.
UNLESS THIS PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, (55 WATER STREET, NEW
YORK) TO PSCO CAPITAL TRUST I OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY PREFERRED SECURITY 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. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, 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.
C-2
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Preferred Security will be fixed at a rate
per annum of _____% (the "Coupon Rate") of the stated liquidation amount of
$____ per Preferred Security, such rate being the rate of interest payable on
the Debentures to be held by the Property Trustee. Distributions in arrears
for more than one [quarter] [semi-annual period] will bear interest thereon
compounded [quarterly] [semi-annually] at the Coupon Rate (to the extent
permitted by applicable law). The term "Distributions" as used herein
includes such cash distributions and any such interest payable unless
otherwise stated. A Distribution is payable only to the extent that payments
are made in respect of the Debentures held by the Property Trustee and to the
extent the Property Trustee has funds available therefor. The amount of
Distributions payable for any period will be computed for any full [quarterly]
[semi-annual] Distribution period on the basis of a 360-day year of twelve
30-day months, and for any period shorter than a full [quarterly]
[semi-annual] Distribution period for which Distributions are computed,
Distributions will be computed on the basis of the actual number of days
elapsed per [90-day quarter] [180-day semi-annual period].
Except as otherwise described below, Distributions on the Preferred
Securities will be cumulative, will accrue from the date of original issuance
and will be payable [quarterly in arrears, on March 31, June 30, September 30
and December 31 of each year commencing on _________, 1998] [semi-annually in
arrears on April 1 and October 1 commencing on ____________, 1998], which
payment dates shall correspond to the interest payment dates on the Debentures.
The Issuer of the Debentures has the right under the Indenture to defer payments
of interest by extending the interest payment period from time to time on the
Debentures for a period not exceeding [20 consecutive quarters] [10 consecutive
semi-annual payment periods] or the final maturity date of the Debentures (each
an "Extension Period") and, as a consequence of such deferral, Distributions
will also be deferred. Despite such deferral, [quarterly] [semi-annual]
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the Coupon Rate compounded [quarterly]
[semi-annually] during any such Extension Period. Prior to the termination of
any such Extension Period, the issuer of the Debentures may further extend such
Extension Period; PROVIDED THAT such Extension Period together with all such
previous and further extensions thereof may not exceed [20 consecutive quarters]
[10 consecutive semi-annual payment periods] or the final maturity date of the
Debentures. Payments of accrued Distributions will be payable to Holders as
they appear on the books and records of the Trust on the first record date after
the end of the Extension Period. Upon the termination of any Extension Period
and the payment of all amounts then due, the issuer of the Debentures may
commence a new Extension Period, subject to the above requirements.
The Preferred Securities shall be redeemable as provided in the
Declaration.
C-3
<PAGE>
--------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
agent to transfer this Preferred Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date:
-------------------------------------------
Signature:
--------------------------------------
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
Signature Guaranty:
-----------------------------
Signatures must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the [Registrar], which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the
[Registrar] in addition to, or in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as amended.
C-4
<PAGE>
EXHIBIT 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement of our report dated February 13,
1998, included in the Public Service Company of Colorado Form 10-K for the year
ended December 31, 1997, included in the New Century Energies, Inc. combined
Annual Report on Form 10-K for the year ended December 31, 1997, and to all
references to our Firm included in this Registration Statement.
/s/ ARTHUR ANDERSEN LLP
Denver, Colorado,
March 30, 1998
