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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 or 15(d) of the
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) July 13, 1999
PUBLIC SERVICE COMPANY OF COLORADO
-----------------------------------------------------
(Exact Name of Registrant as Specified in Charter)
Colorado
---------------------------
(State or Other Jurisdiction
of Incorporation)
84-0296600
-------------------
1-3280 (IRS Employer
--------------------- Identification No.)
(Commission File No.)
1225 17th Street
Denver, CO. 80202-5533
- ---------------------------------------- ------------
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (303) 571-7511
---------------
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Item 5. OTHER EVENTS
On July 13, 1999, Public Service Company of Colorado (the "Company")
entered into an underwriting agreement (the "Underwriting Agreement") with
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Lehman Brothers Inc. and
Salomon Smith Barney Inc. (collectively, the "Purchasers"), relating to the sale
by the Company to the Purchasers of $200,000,000 aggregate principal amount of
Series A Senior Notes, 6 7/8 % due July 15, 2009 (the "Notes") issued under an
Indenture dated as of July 1, 1999 between the Company and The Bank of New York,
as trustee (the "Indenture") as supplemented by the First Supplemental Indenture
dated as of July 15, 1999 between the Company and The Bank of New York, as
trustee (the "First Supplemental Indenture"). The Notes have been registered
under a registration statement (File No. 333-81791) on Form S-3 filed with the
Securities and Exchange Commission pursuant to Rule 415 under the Securities Act
of 1933, as amended. In connection with the execution of the Underwriting
Agreement, the Indenture and the First Supplemental Indenture, the Company is
filing exhibits as part of this Form 8-K. See "Item 7. Financial Statements and
Exhibits."
Item 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits
Exhibit 1.1 Underwriting Agreement dated July 13, 1999
between the Company and the Purchasers.
Exhibit 4.1 Indenture dated July 1, 1999 between the Company
and The Bank of New York, as Trustee.
Exhibit 4.2 First Supplemental Indenture dated July 15, 1999
between the Company and The Bank of New York, as
Trustee.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
PUBLIC SERVICE COMPANY OF COLORADO
/s/ Brian P. Jackson
-----------------------------------------------
Brian P. Jackson
Executive Vice President,
Finance and Administrative Services,
Chief Financial Officer and Treasurer
Dated: July 13, 1999
<PAGE>
Exhibit 1.1
=================================================================
PUBLIC SERVICE COMPANY OF COLORADO
$200,000,000
SENIOR DEBT SECURITIES
UNDERWRITING AGREEMENT
Dated: July 13, 1999
=================================================================
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PUBLIC SERVICE COMPANY OF COLORADO
$200,000,000
Senior Debt Securities
Underwriting Agreement
July 13, 1999
MERRILL LYNCH & CO.,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
LEHMAN BROTHERS INC.
SALOMON SMITH BARNEY INCORPORATED
c/o Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
PUBLIC SERVICE COMPANY OF COLORADO, a Colorado corporation
("PSCo"), proposes, subject to the terms and conditions stated herein, to issue
and sell to Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch"), Lehman Brothers Inc. and Salomon Smith Barney
Inc. (collectively, the "Underwriters," which term shall also include any
underwriter substituted as hereinafter provided in Section 10 hereof)
$200,000,000 of its Series A Senior Notes 6 7/8% due 2009 (the "Securities").
The Securities will be issued as a single series under an Indenture, dated as of
July 1, 1999 (the "Original Indenture") between PSCo and The Bank of New York,
as trustee (the "Trustee"), as it will be supplemented by a supplemental
indenture creating the Securities (said Original Indenture, as supplemented by a
supplemental indenture being hereafter referred to as the "Indenture" and
"Supplemental Indenture", respectively).
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2
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES BY PSCO. PSCo represents
and warrants to each Underwriter as of the date hereof, as of the
Time of Delivery referred to in Section 2(c) hereof, and agrees
with each Underwriter as follows:
(i) REGISTRATION STATEMENT FILING. A registration
statement on Form S-3 (File No. 333-81791), in respect of
the Securities has been filed by PSCo with the Securities
and Exchange Commission (the "Commission") pursuant to Rule
415 under the Securities Act of 1933, as amended (the
"Act"), and delivered to the Underwriters; such registration
statement and any post-effective amendment thereto, each in
the form heretofore delivered to the Underwriters, have been
declared effective by the Commission in such form; and no
stop order suspending the effectiveness of such registration
statement has been issued and no proceeding for that purpose
has been initiated or, to the knowledge of PSCo, threatened
by the Commission (any preliminary prospectus included in
such registration statement or thereafter filed with the
Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Act is referred to
herein as a "Preliminary Prospectus". The various parts of
such registration statement, including (i) all exhibits
thereto, (ii) if applicable, the information contained in
the form of prospectus filed with the Commission pursuant to
Rule 424(b) under the Act in accordance with Section 5(a)
hereof and deemed by virtue of Rule 430A under the Act to be
a part of the registration statement at the time it was
declared effective and (iii) the documents incorporated by
reference in the prospectus contained in the registration
statement at the time such part of such registration
statement became effective, each as amended at the time such
part of such registration statement became effective, are
referred to herein collectively as the "Registration
Statement". The final prospectus, as supplemented by the
related prospectus supplement, in the form first filed with
respect to the Securities pursuant to Rule 424(b) under the
Act, is referred to herein collectively as the "Prospectus".
Any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be.
Any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any documents filed after the date of
such Preliminary Prospectus or Prospectus, as the case may
be, under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and incorporated by reference in such
Preliminary Prospectus or Prospectus, as the case may be;
and any reference to any amendment to the Registration
Statement shall be deemed to refer to and include PSCo's
most recent annual report on Form 10-K (the "Form 10-K"),
quarterly reports on Form 10-Q or current reports on Form
8-K, if any, filed pursuant to Section 13 or 15(d) of the
Exchange Act after the effective date of the Registration
Statement that is
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3
incorporated by reference in the Registration Statement
(the Form 10-K, the quarterly reports on Form 10-Q and any
current reports on Form 8-K are referred to herein
collectively as the "Exchange Act Filings")). For purposes
of this Agreement, all references to the Preliminary
Prospectus or Prospectus or to any amendment or supplement
to any of the foregoing shall be deemed to include any copy
filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval System ("EDGAR").
No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission,
and each Preliminary Prospectus, at the time of filing
thereof, conformed in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder (the "1933 Act Regulations"), and did
not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of
the circumstances under which they were made, not
misleading; PROVIDED, HOWEVER, that this representation and
warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information
furnished in writing to the PSCo by any Underwriter through
Merrill Lynch expressly for use therein.
(ii) INCORPORATED DOCUMENTS. The documents incorporated
or deemed to be incorporated by reference in the
Registration Statement and the Prospectus and any amendment
or supplement thereto, when they were or hereafter are filed
with the Commission, complied and will comply in all
material respects with the requirements of the Exchange Act
and the rules and regulations of the Commission thereunder
(the "1934 Act Regulations"), and none of such documents
contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of
the circumstances under which they were made, not
misleading; and any further documents so filed and
incorporated by reference in the Registration Statement and
the Prospectus or any further amendment or supplement
thereto, when such documents are filed with the Commission,
as the case may be, will conform in all material respects to
the requirements of the Exchange Act and the 1934 Act
Regulations and will not contain an untrue statement of a
material fact or omit to state a material fact required to
be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading.
(iii) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The
Registration Statement complies, and the Prospectus and any
further amendments or supplements to the Registration
Statement or the Prospectus will comply, in all material
respects with the requirements of the Act and the 1933 Act
Regulations and do not and will not (i) as of the applicable
effective date as to the Registration Statement and any
amendment thereto and (ii) as of the applicable filing date
and as of the date hereof and as of the
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4
Time of Delivery (as defined below) as to the Prospectus
and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; PROVIDED, HOWEVER, that
this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in
conformity with information furnished in writing to PSCo by
any Underwriter through Merrill Lynch expressly for use
therein or to the part of the Registration Statement which
shall constitute the Statement of Eligibility under the
Trust Indenture Act of 1939, as amended (the "TIA"), of the
Trustee under the Indenture.
(iv) FINANCIAL STATEMENTS. The financial statements
included in the Registration Statement and the Prospectuses,
together with the related schedules and notes, present
fairly the financial position of PSCo and its consolidated
subsidiaries at the dates indicated and the statement of
operations, stockholders' equity and cash flows of PSCo and
its consolidated subsidiaries for the periods specified;
and, except as otherwise stated in the Registration
Statement, such financial statements have been prepared in
conformity with generally accepted accounting principles
("GAAP") applied on a consistent basis during the periods
involved. The supporting schedules, if any, included in the
Registration Statement present fairly in accordance with
GAAP the information required to be stated therein.
(v) INDEPENDENT ACCOUNTANTS. Arthur Andersen LLP are
independent public accountants with respect to PSCo as
required by the Act and the 1933 Act Regulations.
(vi) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the
respective dates as of which information is given in the
Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material
adverse change in the business, property or condition,
financial or otherwise, of PSCo and its subsidiaries
considered as one enterprise, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"),
(B) there have been no transactions entered into by PSCo or
any of its subsidiaries, other than those in the ordinary
course of business, which are material with respect to PSCo
and its subsidiaries, considered as one enterprise and (C)
neither PSCo nor any of its subsidiaries has any contingent
obligations which are material to PSCo and its subsidiaries
considered as one enterprise.
(vii) GOOD STANDING OF PSCO. PSCo has been duly
incorporated and is validly existing as a corporation in
good standing under the laws of the State of Colorado, with
due corporate authority to own and operate its properties
and conduct its business as described in the Prospectus and
to enter into and perform its obligations under this
Agreement; and PSCo is duly qualified as a foreign
corporation to transact business and is in good standing in
each other jurisdiction in which such qualification is
required,
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5
whether by reason of the ownership or leasing of
property or the conduct of business, except where the
failure so to qualify or to be in good standing would not
result in a Material Adverse Effect.
(viii) GOOD STANDING OF SUBSIDIARIES. Each "significant
subsidiary" (as such term is defined in Rule 1-02 of
Regulation S-X promulgated under the Act) of PSCo (each a
"Significant Subsidiary" and, collectively, the "Significant
Subsidiaries") has been duly organized and is validly
existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has corporate power
and authority to own, lease and operate its properties and
to conduct its business as described in the Prospectus and
is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or be in
good standing would not have a Material Adverse Effect.
Except as otherwise stated in the Registration Statement and
the Prospectus, all of the issued and outstanding capital
stock of each Significant Subsidiary has been duly
authorized and is validly issued, fully paid and
non-assessable and is owned by PSCo, directly or through its
subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity. None
of the outstanding shares of capital stock of any
Significant Subsidiary was issued in violation of preemptive
or other similar rights of any securityholder of such
Significant Subsidiary.
(ix) ABSENCE OF DEFAULTS AND CONFLICTS BY PSCO. Neither
PSCo nor any of its subsidiaries is in violation of its
charter or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or
other agreement or instrument to which PSCo or any of its
subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of PSCo or
any subsidiary is subject, except for such defaults that
would not result in a Material Adverse Effect. The issuance
and sale of the Securities by PSCo, the compliance by PSCo
with all of the provisions of this Agreement, the execution,
delivery and performance by PSCo of this Agreement, the
Original Indenture and the Supplemental Indenture and the
consummation of the transactions herein and therein
contemplated, will not conflict with or result in a breach
or violation of any of the terms or provisions of, or
constitute a default under, any contracts, indenture,
mortgage, deed of trust, loan or credit agreement or other
agreement or instrument to which PSCo is a party or by which
PSCo is bound or to which any of the property or assets of
PSCo is subject, nor will such action result in any
violation of the provisions of the charter or by-laws of
PSCo or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction
over PSCo or any of its properties.
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6
(x) AUTHORIZATION AND DESCRIPTION OF THE SECURITIES.
The Securities have been duly authorized by PSCo for
issuance and sale pursuant to this Agreement and, when
issued, authenticated and delivered by PSCo pursuant to this
Agreement against payment of the consideration set forth
herein, the Securities will be valid and binding obligations
of PSCo, enforceable in accordance with their terms, except
as enforcement thereof may be limited by laws or principles
of equity affecting generally the enforcement of creditors'
rights, including without limitation bankruptcy and
insolvency laws and state laws which affect the enforcement
of certain remedial provisions of the Indenture, and will be
entitled to the benefits of the Indenture; the Securities
conform in all material respects to the statements relating
thereto contained in the Prospectus.
(xi) AUTHORIZATION OF UNDERWRITING AGREEMENT. This
Agreement has been duly authorized, executed and delivered
by PSCo.
(xii) AUTHORIZATION OF THE INDENTURE. Each of the
Original Indenture and Supplemental Indenture have been duly
authorized by PSCo and, at the Time of Delivery (as defined
below), will have been duly executed and delivered by PSCo
and, assuming due authorization, execution and delivery by
the Trustee, will constitute a valid and binding agreement
of PSCo enforceable in accordance with its terms except to
the extent that enforcement thereof may be limited by
bankruptcy, insolvency or reorganization laws relating to or
affecting the enforcement of creditors' rights and by
general equity principles, and will conform in all material
respects to the statements relating thereto contained in the
Prospectus; and at the effective date of the Registration
Statement, the Indenture was or will have been duly
qualified under the TIA.
(xiii) INVESTMENT COMPANY ACT. PSCo is not, and upon
the issuance and sale of the Securities as herein
contemplated and the application of the proceeds therefrom
as described in the Prospectus will not be, an "investment
company" or an entity "controlled" by an "investment
company" as such terms are defined in the Investment Company
Act of 1940, as amended (the "1940 Act").
(xiv) ABSENCE OF FURTHER REQUIREMENTS. PSCo has filed
with the Public Utilities Commission of the State of
Colorado (the "Colorado Commission") an application with
respect to the issuance and sale of PSCo's debt securities,
including the Securities, and the Colorado Commission has
issued its order authorizing and approving such issuance and
sale. No further consent or authorization of or approval by
the Colorado Commission or any other governmental or
regulatory authority or body is necessary in connection with
the issuance and sale by PSCo of the Securities pursuant to
this Agreement, except that their must be compliance with
the securities laws in the jurisdictions in which the
Securities are to be offered and sold.
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7
(xv) FRANCHISES. The franchises held by PSCo and its
subsidiaries, together with the applicable Certificates of
Convenience and Necessity issued by the Colorado Commission,
give PSCo and such subsidiaries all necessary authority for
the maintenance and operation of their respective properties
and business as now conducted, and are free from burdensome
restrictions or conditions of an unusual character.
(xvi) ABSENCE OF PROCEEDINGS. There is no action, suit,
proceeding, inquiry or investigation before or brought by
any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of PSCo,
threatened, against or affecting PSCo or any subsidiary,
which is required to be disclosed in the Registration
Statement or the Prospectus (other than as disclosed
therein), or which might reasonably be expected to result in
a Material Adverse Effect, or which might reasonably be
expected to materially and adversely affect the properties
or assets thereof or the consummation of the transactions
contemplated in this Agreement or the performance by PSCo of
its obligations hereunder.
(b) OFFICER'S CERTIFICATES. Any certificate signed by any
officer of PSCo delivered to the Underwriters or to counsel for
the Underwriters shall be deemed a representation and warranty by
PSCo to each Underwriter as to the matters covered thereby.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) SECURITIES. On the basis of the representations and
warranties herein contained and subject to the terms and
conditions herein set forth, PSCo agrees to issue and sell to
each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase, the amount of Securities
set forth opposite the name of such Underwriter in Schedule A
hereto, plus any additional Securities which such Underwriter may
become obligated to purchase pursuant to the provisions of
Section 10 hereof, at a purchase price equal to 98.575% of the
principal amount thereof. PSCo shall not be obligated to deliver
any of the Securities except upon payment for all of the
Securities to be purchased as provided herein.
(b) OFFERING OF SECURITIES. Upon the authorization by
Merrill Lynch of the release of the Securities, the several
Underwriters propose to offer the Securities for sale upon the
terms and conditions set forth in the Prospectus.
(c) CLOSING. The Securities to be purchased by each
Underwriter hereunder will be represented by a global certificate
or certificates in book-entry form which will be deposited by or
on behalf of PSCo with The Depository Trust Company ("DTC") or
its designated custodian and registered in the name of Cede &
Co., as nominee of DTC. PSCo will deliver the Securities to
Merrill Lynch, for the account of each Underwriter, against
payment by or on behalf of such Underwriter of the purchase price
therefor by wire transfer of immediately available funds to PSCo,
by causing DTC to credit the Securities to the account of
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8
Merrill Lynch at DTC. The time, date and location of such
delivery and payment (the "Time of Delivery") shall be 10:00
a.m., New York time, on July 16, 1999, at LeBoeuf, Lamb, Greene &
MacRae, L.L.P., 125 West 55th Street, New York, New York 10019,
or at such other time, date and location as Merrill Lynch and
PSCo may agree upon in writing.
SECTION 3. COVENANTS PSCo agrees with each of the
Underwriters:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION
REQUESTS. To prepare the Prospectus in a form approved by the
Underwriters and to file such Prospectus pursuant to Rule 424(b)
under the Act within the time prescribed under Rule 424(b) or
Rule 430A(a)(3), as the case may be, under the Act; to make no
further amendment or supplement to the Registration Statement or
the Prospectus prior to the Time of Delivery to which the
Underwriters reasonably object promptly after reasonable notice
thereof; to advise the Underwriters, promptly after it receives
notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been
filed and to furnish the Underwriters with copies thereof; prior
to the termination of the offering of the Securities, to file
promptly all reports and any definitive proxy or information
statements required to be filed with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act; to advise
the Underwriters, promptly after it receives notice thereof, of
the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or
Prospectus, of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose,
or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any
stop order or of any order preventing or suspending the use of
any prospectus relating to the Securities or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal.
(b) BLUE SKY QUALIFICATION. To use its best efforts, in
cooperation with the Underwriters, to qualify the Securities for
offering and sale under the securities laws of such jurisdictions
of the United States as the Underwriters may designate and to
comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Securities,
provided that in connection therewith PSCo shall not be required
to qualify as a foreign corporation or to file a general consent
to service of process in any jurisdiction.
(c) DELIVERY OF PROSPECTUSES. To furnish the Underwriters
with copies of the Prospectus in such quantities as the
Underwriters may reasonably request, and, if the delivery of a
prospectus is required in connection with the offer or sale of
the Securities and if at such time any event shall have occurred
as a result of which the Pro-
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9
spectus as then amended or supplemented would contain an untrue
statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when
such Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary during such period to amend
or supplement the Prospectus or to file under the Exchange Act
any document incorporated by reference in the Prospectus in
order to comply with the Act or the Exchange Act, to notify
the Underwriters and upon the request of the Underwriters to
file such document and to prepare and furnish without charge
to each Underwriter and to any dealer in securities as many
copies as the Underwriters may reasonably request of an
amended Prospectus or a supplement to the Prospectus which
will correct such statement or omission or effect such
compliance.
(d) RULE 158. To file timely such reports pursuant to the
Exchange Act as are necessary in order to make generally
available to its security holders as soon as practicable, an
earnings statement of PSCo for the purposes of, and to provide
the benefits contemplated by, the last paragraph of Section 11(a)
of the Act.
(e) RESTRICTION ON SALE OF SECURITIES. Between the date
hereof and the date on which the distribution of the Securities
is complete, PSCo will not, without the prior written consent of
Merrill Lynch, offer or sell or enter into any agreement to sell,
any of its other debt securities which are substantially similar
to the Securities, including any guarantee of such securities, or
any securities convertible into or exchangeable for or
representing the right to receive any of the foregoing
securities.
(f) REPORTING REQUIREMENTS. PSCo, during the period when the
Prospectus is required to be delivered under the 1933 Act or the
1934 Act, will file all documents required to be filed with the
Commission pursuant to the 1934 Act within the time periods
required by the 1934 Act and the 1934 Act Regulations.
(g) DELIVERY OF REGISTRATION STATEMENTS. To the extent not
previously so furnished, to furnish to Merrill Lynch two copies
of the signed Registration Statement, as initially filed with the
Commission, of all amendments thereto, and of all documents
incorporated by reference therein (including all exhibits filed
therewith, other than exhibits which have previously been
furnished to Merrill Lynch), two copies of each manually signed
consent and certificate of independent accountants and of each
other person who by his or her profession gives authority to
statements made by him or her and who is named in the
Registration Statement as having prepared, certified or reviewed
any part thereof, and to furnish to Merrill Lynch sufficient
unsigned copies of the foregoing (other than exhibits, including
consents filed as exhibits, to the Registration Statement) as
Merrill Lynch may reasonably request for distribution.
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10
(h) USE OF PROCEEDS. To apply the net proceeds from the sale
of the Securities in the manner set forth in the Prospectus.
SECTION 4. PAYMENT OF EXPENSES.
(a) EXPENSES. PSCo covenants and agrees with the several
Underwriters that it will pay the following: (i) the fees,
disbursements and expenses of PSCo's counsel and accountants in
connection with the registration of the Securities under the Act
and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and any amendments and
supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of
printing or producing any Agreement Among Underwriters, this
Agreement, the Blue Sky Survey and any supplement thereto and any
other documents in connection with the offering, purchase, sale,
issuance and delivery of the Securities; (iii) all expenses in
connection with the qualification of the Securities for offering
and sale under state securities laws as provided in Section 3(b)
hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in
connection with the Blue Sky Survey and any supplement thereto;
(iv) any fees charged by Standard & Poor's Ratings Services,
Moody's Investors Service, Inc. or Duff & Phelps Credit Rating
Co. (each, a "Rating Agency") for rating the Securities; (v) the
costs of any depository arrangements for the Securities with DTC
or any successor depository; (vi) all fees and reasonable
expenses of the Trustee and any agent thereof and the fees and
disbursements of their counsel; (vii) the printing of the
Securities in certificated form, if required; and (viii) all
other costs and expenses incident to the performance of
obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that,
except as provided in this Section, Section 8 and Section 12
hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, transfer taxes on
resale of any of the Securities by them, and any advertising
expenses connected with any offers they may make.
(b) TERMINATION OF AGREEMENT. If this Agreement is
terminated by the Underwriters in accordance with the provisions
of Section 5 or Section 9(a)(i) hereof, PSCo shall reimburse the
Underwriters for all of their out-of-pocket expenses, including
the reasonable fees and disbursements of counsel for the
Underwriters.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The
obligations of the Underwriters hereunder are subject to the
accuracy of the representations and warranties of PSCo contained
in Section 1 hereof or in certificates of any officer of PSCo
delivered pursuant to the provisions hereof, to the performance
by PSCo of its covenants and other obligations hereunder, and to
the following additional conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The
Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) and Rule 430A(a)(3), if appli-
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11
cable, within the applicable time period prescribed for
such filing by the rules and regulations under the Act and
in accordance with Section 5(a) hereof; and no stop order
suspending the effectiveness of the Registration Statement
or any part thereof shall have been issued and no proceeding
for that purpose shall have been initiated or threatened by
the Commission.
(b) ORDER OF COLORADO COMMISSION. At the Time of
Delivery, the order of the Colorado Commission authorizing
and approving the issuance and sale of the Securities shall
be final and in full force and effect and the time for
appeal therefrom or review thereof or intervention with
respect thereto shall have expired.
(c) OPINION OF COUNSEL FOR UNDERWRITERS. Cahill Gordon
& Reindel, counsel for the Underwriters, shall have
furnished to the Underwriters their written opinion, dated
the Time of Delivery, with respect to the matters referred
to in clauses (ii), (iii), (iv), (v), (viii) and (xiii) of
Section 5(d) hereof and such related matters as the
Underwriters may request (it being understood that such
counsel may rely as to all matters of Colorado law and legal
conclusions based upon the opinion of counsel for PSCo
referred to in Section 5(d) hereof); and such counsel shall
have received such papers and information as they may
reasonably request to enable them to pass upon such matters.
(d) OPINION OF COUNSEL FOR COMPANY. LeBoeuf, Lamb,
Greene & MacRae, L.L.P., counsel for PSCo, shall have
furnished to the Underwriters their written opinion, dated
the Time of Delivery, in form and substance satisfactory to
the Underwriters, to the effect that:
(i) PSCo has been duly incorporated and is
validly existing as a corporation in good standing
under the laws of the State of Colorado, with
corporate power and authority to own its properties
and conduct its business as described in the
Prospectus. To the best of their knowledge, PSCo is
duly qualified as a foreign corporation to transact
business and is in good standing in each
jurisdiction in which such qualification is
required, except where the failure to so qualify or
be in good standing would not have a material
adverse effect on the business, properties or
operations of PSCo and its subsidiaries considered
as one enterprise;
(ii) The Indenture has been duly and validly
authorized, executed and delivered by PSCo and is in
due and proper form and (assuming the Indenture has
been duly authorized, executed and delivered by the
Trustee) constitutes a legal, valid and binding
agreement of PSCo, enforceable in accordance with
its terms, except as enforcement thereof may be
limited by laws and principles of equity affecting
generally the enforcement of creditors' rights,
including without limitation bankruptcy and
insolvency laws and state laws which affect
<PAGE>
12
the enforcement of certain remedial provisions of
the Indenture; PROVIDED, HOWEVER, that such state
laws will not, in our opinion, render the remedies
afforded by the Indenture inadequate for the
practical realization of the benefit provided
thereby.
(iii) The Indenture has been duly qualified
under the TIA;
(iv) The Securities are in due and proper
form and the issuance and sale of the Securities
have been duly authorized by all necessary corporate
action, and when duly executed, authenticated and
delivered to the Underwriters pursuant to this
Agreement against payment of the consideration set
forth therein, the Securities will be legal, valid
and binding obligations of PSCo enforceable (subject
to the exceptions and limitations referred to in
paragraph (ii) hereof) in accordance with their
terms.
(v) This Agreement has been duly authorized,
executed and delivered by PSCo;
(vi) The issuance and sale of the Securities
have been duly authorized and approved by an order
of the Colorado Commission and such order is final
and in full force and effect on the date hereof, the
time for appeal therefrom or review thereof or
intervention with respect thereto having expired; no
further approval, authorization, consent or other
order of any public board or body, including under
the Public Utility Holding Company Act of 1935, as
amended, is legally required (other than in
connection or compliance with the provisions of the
securities laws of any jurisdiction) for the
issuance and sale by PSCo of the Securities pursuant
to this Agreement.
(vii) The facsimile signature of the
President, an Executive Vice President, a Senior
Vice President or a Vice President of PSCo in lieu
of his or her manual signature on the Securities and
the facsimile signature of the Secretary or an
Assistant Secretary of PSCo attesting the corporate
seal in lieu of his or her manual signature on the
Securities have been duly and properly authorized by
the Board of Directors of PSCo, are not inconsistent
with the provisions of the Restated Articles of
Incorporation, as amended, or By-laws of PSCo and
are valid and effective under the laws of the State
of Colorado; and the facsimile signatures of such
officers on the Securities have the same legal
effect as though they had manually signed and
attested the Securities as such respective officers.
<PAGE>
13
(viii) The Securities and the Indenture
conform as to legal matters to the description of
the terms thereof contained in the Registration
Statement and the Prospectus, as amended or
supplemented to the date hereof.
(ix) The issuance and sale of the Securities
by PSCo, the compliance by PSCo with all of the
provisions of this Agreement, and the consummation
of the transactions contemplated herein, will not
conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a
default under, any agreement or instrument known to
such counsel to which PSCo is a party or by which
PSCo is bound or to which any of the property or
assets of PSCo is subject, nor will such action
result in any violation of the provisions of the
charter or by-laws of PSCo or any statute or any
order, rule or regulation known to such counsel of
any court or government agency or body having
jurisdiction over PSCo or any of its properties;
(x) The statements in PSCo's Annual Report on
Form 10-K for the fiscal year ended December 31,
1998, incorporated by reference into the Prospectus,
under the heading "Character of Ownership" in Item
2. Properties, and insofar as they are, or refer to,
statements of law or legal conclusions, have been
prepared or reviewed by their counsel and are
correct in all material respects and fairly present
the information purported to be given;
(xi) To the best of their knowledge, neither
PSCo nor any subsidiary is in violation of its
charter or by-laws and no default by PSCo or any
subsidiary exists in the due performance or
observance of any material contract, indenture,
mortgage, loan agreement, note, lease or other
agreement or instrument;
(xii) The documents incorporated by reference
in the Prospectus or any further amendment or
supplement thereto made by PSCo prior to the Time of
Delivery (other than the financial statements and
related schedules therein, as to which such counsel
need express no opinion), when they were filed with
the Commission, complied as to form in all material
respects with the requirements of the Exchange Act
and the 1934 Act Regulations;
(xiii) The Registration Statement is
effective under the Act and, to the best of their
knowledge, no proceedings for a stop order have been
instituted or are pending or threatened under
Section 8(d) of the Act. The Registration Statement
and the Prospectus and any further amendments and
supplements thereto made by PSCo prior to the Time
of Delivery (other than the financial statements
(including the notes thereto) and related schedules
and other financial or statistical data contained or
incorporated by reference therein, as to which such
counsel need express no opinion) comply as to form
in all material
<PAGE>
14
respects with the requirements of the Act and the
TIA and the rules and regulations thereunder; and
(xiv) PSCo is not, and upon the issuance and
sale of the Securities as contemplated by this
Agreement and the application of the proceeds
therefrom as described in the Prospectus will not
be, an "investment company" or an entity
"controlled" by an "investment company" required to
be registered under the Investment Company Act of
1940, as amended.
Such counsel shall state that it does not know of
any legal or governmental proceeding (pending or
threatened) required to be described in the Registration
Statement or Prospectus, as amended or supplemented to the
date hereof, which is not described as required, nor of any
contract or document of a character required to be
described in the Registration Statement or the Prospectus,
as amended or supplemented to the date hereof, or to be
filed as an exhibit to the Registration Statement which is
not described or filed as required.
Such counsel shall also state that in connection
with their opinion, they have participated in discussions
with officers and representatives of PSCo, in certain of
which representatives of the Underwriters and their counsel
also participated and at which the affairs of PSCo and the
contents of the Registration Statement and the Prospectus
were discussed. There is no assurance that all possible
material facts as to PSCo were disclosed to such counsel or
that such counsel's familiarity with PSCo or the operations
in which it is engaged is such that such counsel have
necessarily recognized the materiality of such facts as
were disclosed. To the extent such counsel have deemed
appropriate, such counsel have relied upon statements of
officers and representatives of PSCo as to the materiality
of those facts disclosed to such counsel. Such counsel are
not passing upon and do not assume any responsibility for
the accuracy, completeness or fairness of the statements
contained in the Registration Statement and the Prospectus
except to the limited extent referred to in paragraphs
(viii) and (ix) above. Subject to the foregoing, and to the
other limitations and qualifications expressed in this
letter, such counsel may state that nothing has come to its
attention that would lead such counsel to believe that the
Registration Statement, when it became effective or on the
date of this Agreement, contained an untrue statement of a
material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading, or that, at the date the Prospectus
Supplement was filed with the Securities and Exchange
Commission, the Prospectus included, or, at the date
hereof, the Prospectus, as it may have been amended or
supplemented, includes an untrue statement of a material
fact or omitted, or omits, to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided that such counsel need not ex-
<PAGE>
15
press any belief as to the financial statements
(including the notes thereto) and related schedules or
other financial or statistical data contained or
incorporated by reference in the Registration Statement
or the Prospectus, or any amendment or supplement thereto,
as to any information contained therein furnished to PSCo
in writing by any Underwriter through Merrill Lynch
expressly for use therein or as to the Statement of
Eligibility (Form T-1).
(e) OFFICERS' CERTIFICATE. At the Time of Delivery,
there shall not have been, since the date hereof or since
the respective dates as of which information is given in
the Prospectus, any material adverse change in the
business, property or condition, financial or otherwise, of
PSCo and its subsidiaries, considered as one enterprise,
whether or not arising in the ordinary course of business,
and the Underwriters shall have received a certificate of
the President, an Executive Vice President, a Senior Vice
President or a Vice President of PSCo and of the chief
financial officer, chief accounting officer, the Treasurer
or an Assistant Treasurer of PSCo, dated as of the Time of
Delivery, to the effect that (i) there has been no such
material adverse change, (ii) the representations and
warranties in Section 1(a) hereof are true and correct with
the same force and effect as though expressly made at and
as of the Time of Delivery, (iii) PSCo has complied with
all agreements and satisfied all conditions on its part to
be performed or satisfied at or prior to the Time of
Delivery, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or
are pending or are contemplated by the Commission.
(f) ACCOUNTANT'S COMFORT LETTER. On the date of this
Agreement, Arthur Andersen LLP shall have furnished to the
Underwriters a letter, dated the date of this Agreement, in
form and substance satisfactory to the Underwriters, to the
effect that:
(i) they are independent public accountants
with respect to PSCo and its subsidiaries within the
meaning of the Act and the applicable published
rules and regulations thereunder (the "Act
Regulations");
(ii) in their opinion, the audited
consolidated financial statements and financial
statement schedule(s) incorporated by reference in
the Registration Statement and the Prospectus and
included in the Form 10-K comply as to form in all
material respects with the applicable accounting
requirements of the Act, the Act Regulations, the
Exchange Act and the applicable published rules and
regulations thereunder (the "Exchange Act
Regulations");
(iii) on the basis of (1) the performance of
the procedures specified by the American Institute
of Certified Public Accountants for a review of
interim financial information as described in
Statement on Auditing Standards
<PAGE>
16
No. 71, Interim Financial Information, on the
unaudited consolidated balance sheets, the
unaudited consolidated statements of income and
retained earnings, and the unaudited consolidated
statements of cash flows, of PSCo and its
subsidiaries included in PSCo's quarterly reports
on Form 10-Q filed with the Commission under
Section 13 of the Exchange Act (the "Form
10-Q's") subsequent to the Form 10-K, (2) a
reading of the latest available unaudited
financial statements of PSCo, (3) a reading of
the minutes of the Annual Meeting of Shareholders
and the latest minutes of Meetings of the Board
of Directors of PSCo as set forth in the minute
books for the current year and certain draft
resolutions for subsequent meetings and (4)
inquiries of the officers of PSCo who have
responsibility for financial and accounting
matters (it being understood that the foregoing
procedures do not constitute an audit made in
accordance with generally accepted auditing
standards and would not necessarily reveal
matters of significance with respect to the
comments made in such letter, and accordingly
that Arthur Andersen LLP makes no representation
as to the sufficiency of such procedures for the
purposes of the several Underwriters), nothing
has come to their attention which caused them to
believe that (A) any material modifications
should be made to the unaudited consolidated
financial statements included in the Form 10-Q's
for them to be in conformity with generally
accepted accounting principles; (B) the unaudited
consolidated financial statements included in the
Form 10-Q's do not comply as to form in all
material respects with the applicable accounting
requirements of the Exchange Act as they apply to
Form 10-Q and Exchange Act Regulations or (C) at
the date of the latest available consolidated
financial statements and at a specified date not
more than three business days prior to the date
of such letter, there was any change in the
consolidated capital stock or increase in the
consolidated long-term debt of PSCo or any
decrease in the consolidated net assets or
shareholders' equity of PSCo, in each case as
compared with the amounts shown on the most
recent consolidated balance sheet of PSCo
incorporated by reference in the Registration
Statement and the Prospectus or, during the
period from the date of such balance sheet to a
specified date not more than three business days
prior to the date of such letter, upon inquiries
of the appropriate officers of PSCo, there were
any decreases, as compared with the corresponding
period in the preceding year, in consolidated
operating revenues or consolidated net income of
PSCo, except in each such case as set forth in or
contemplated by the Registration Statement and
the Prospectus or except for such exceptions
enumerated in such letter as shall have been
agreed to by the Underwriters and PSCo; and
(iv) In addition to the audits referred to in
their report appearing in the Form 10-K incorporated
by reference in the Registration Statement and the
<PAGE>
17
Prospectus, and the limited procedures referred to
in clause (iii) above, they have carried out certain
other specified procedures, not constituting an
audit, with respect to certain amounts, percentages
and financial information which are included or
incorporated by reference in the Registration
Statement and the Prospectus and which are specified
by the Underwriters, and have found such amounts,
percentages and financial information to be in
agreement with the relevant accounting, financial
and other records of PSCo and its subsidiaries
identified in such letter, provided that said letter
may vary from the requirements specified above in
such manner as the Underwriters may deem not to be
material or as may be acceptable to the Underwriters
who have agreed to purchase in the aggregate 50% or
more of the Securities.
(g) BRING-DOWN COMFORT LETTER. At the Time of
Delivery, the Underwriters shall have received from Arthur
Andersen LLP a letter, dated as of the Time of Delivery, to
the effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (g) of this
Section, except that the specified date referred to shall
be a date not more than three business days prior to the
Time of Delivery.
(h) MAINTENANCE OF RATING. Since the date of this
Agreement, there shall not have occurred a downgrading in
the rating assigned to the Securities or any of PSCo's
other securities by S&P or Moody's, and neither S&P nor
Moody's shall have publicly announced that it has under
surveillance or review its rating of the Securities or any
of PSCo's other securities.
(i) EXECUTION OF AGREEMENTS. The Indenture shall
have been executed and delivered, in each case in a form
reasonably satisfactory to the Underwriters.
(j) ADDITIONAL DOCUMENTS. At the Time of Delivery,
counsel for the Underwriters shall have been furnished with
such documents and opinions as they may require for the
purpose of enabling them to pass upon the issuance and sale
of the Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by PSCo in
connection with the issuance and sale of the Securities as
herein contemplated shall be satisfactory in form and
substance to the Underwriters and counsel for the
Underwriters.
(k) TERMINATION OF AGREEMENT. If any condition
specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be
terminated by the Underwriters by notice to PSCo at any
time at or prior to the Time of Delivery, and such
termination shall be without liability of any party to any
other party except as provided in Section 4 and except that
Sections 1, 6, 7 and 8 shall survive any such termination
and remain in full force and effect.
<PAGE>
18
SECTION 6. INDEMNIFICATION AND CONTRIBUTION.
(a) INDEMNIFICATION OF UNDERWRITERS. PSCo agrees to
indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the 1934
Act, as follows:
(i) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred,
arising out of any untrue statement or alleged
untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto),
or the omission or alleged omission therefrom of a
material fact required to be stated therein or
necessary to make the statements therein not
misleading or arising out of any untrue statement or
alleged untrue statement of a material fact
contained in any Preliminary Prospectus or the
Prospectus (or any amendment or supplement thereto)
or the omission or alleged omission therefrom of a
material fact necessary in order to make the
statements therein, in the light of the
circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred,
to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation
or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission or
any alleged untrue statement or omission, if such
settlement is effected with the written consent of
PSCo; and
(iii) against any and all expense whatsoever,
as incurred (including the fees and disbursements of
counsel chosen by Merrill Lynch), reasonably
incurred in investigating, preparing or defending
against any litigation, or any investigation or
proceeding by any governmental agency or body
commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to
the extent that any such expense is not paid under
(i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity agreement
shall not apply to any loss, liability, claim, damage or
expense to the extent arising out of any untrue statement
or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information
furnished to PSCo by any Underwriter through Merrill Lynch
expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or
supplement thereto).
PSCo shall not be liable for indemnity under this
Section 6(a) with respect to any Preliminary Prospectus to
the extent that any such loss, claim, damage or liability
of such Underwriter results solely from the fact that such
Underwriter sold Securities to a person to
<PAGE>
19
whom it is established that there was not sent or given,
at or prior to the written confirmation of such sale, a
copy of the Prospectus (excluding documents incorporated
by reference) in any case where such delivery is required
by the Act, if PSCo has previously furnished to the
Underwriters the copies thereof in compliance with this
Agreement, and the loss, claim, damage or liability of
such Underwriter results from an untrue statement or
omission of a material fact contained in the Preliminary
Prospectus that was corrected in the Prospectus.
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND
OFFICERS. Each Underwriter severally agrees that it will
indemnify and hold harmless PSCo, its directors, and each
of its officers who signed the Registration Statement and
each person, if any, who controls them within the meaning
of Section 15 of the Act or Section 20 of the 1934 Act to
the same extent as the indemnity agreement set forth in
Section 6(a) hereof, but only with respect to statements or
omissions made in the Registration Statement, any
Preliminary Prospectus or the Prospectus, or any amendment
or supplement thereto, in reliance upon and in conformity
with written information furnished to PSCo by such
Underwriter through Merrill Lynch expressly for use in the
Registration Statement, such Preliminary Prospectus, or the
Prospectus, or any amendment or supplement thereto.
(c) ACTION AGAINST PARTIES; NOTIFICATION. Each
indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any
action commenced against it in respect of which indemnity
may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying
party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. In
the case of parties indemnified pursuant to Section 6(a)
above, counsel to the indemnified parties shall be selected
by Merrill Lynch, and, in the case of parties indemnified
pursuant to Section 6(b) above, counsel to the indemnified
parties shall be selected by PSCo, in each case reasonably
acceptable to the indemnifying party. An indemnifying party
may participate at its own expense in the defense of any
such action; PROVIDED, HOWEVER, that counsel to the
indemnifying party shall not (except with the consent of
the indemnified party) also be counsel to the indemnified
party. In no event shall the indemnifying parties be liable
for fees and expenses of more than one counsel (in addition
to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action
or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this
Section 6 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all
liability arising out of such litigation, investigation,
pro-
<PAGE>
20
ceeding or claim and (ii) does not include a statement
as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO
REIMBURSE. If at any time an indemnified party shall have
requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii)
effected without its written consent if (i) such settlement
is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms
of such settlement at least 30 days prior to such
settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such
settlement.
SECTION 7. CONTRIBUTION. If the indemnification
provided for in Section 6 hereof is for any reason
unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities,
claims, damages or expenses referred to therein; then each
indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in
such proportion as is appropriate to reflect the relative
benefits received by PSCo on the one hand and the
Underwriters on the other hand from the offering of the
Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of PSCo on the
one hand and of the Underwriters on the other hand in
connection with the statements or omissions, which resulted
in such losses, liabilities, claims, damages or expenses,
as well as any other relevant equitable considerations.
The relative benefits received by PSCo on the one
hand and the Underwriters on the other hand in connection
with the offering of the Securities pursuant to this
Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of
the Securities pursuant to this Agreement (before deducting
expenses) received by PSCo and the total underwriting
discount received by the Underwriters, in each case as set
forth on the cover of the Prospectus, bear to the aggregate
initial public offering price of the Securities as set
forth on such cover.
The relative fault of PSCo on the one hand and the
Underwriters on the other hand shall be determined by
reference to, among other things, whether any such untrue
or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to
information supplied by PSCo or by the Underwriters and the
parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or
omission.
<PAGE>
21
PSCo and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section
7 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose)
or by any other method of allocation which does not take
account of the equitable considerations referred to above
in this Section 7. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7
shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in
investigating, preparing or defending against any
litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue or alleged
untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required
to pay by reason of any such untrue or alleged untrue
statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall
be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any,
who controls an Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as such Underwriter, and
each director of PSCo, each officer of PSCo who signed the
Registration Statement, and each person, if any, who
controls PSCo within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same
rights to contribution as PSCo. The Underwriters'
respective obligations to contribute pursuant to this
Section 7 are several in proportion to the number of
Securities set forth opposite their respective names in
Schedule A hereto and not joint.
SECTION 8. REPRESENTATIONS, WARRANTIES AND
AGREEMENTS TO SURVIVE DELIVERY. All representations,
warranties and agreements contained in this Agreement or in
certificates of officers of PSCo submitted pursuant hereto
shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of
PSCo, and shall survive delivery of the Securities to the
Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) TERMINATION; GENERAL. The Underwriters may
terminate this Agreement, by notice to PSCo, at any time at
or prior to the Time of Delivery, (i) if there has been,
since the time of execution of this Agreement or since the
respective dates as of which information is
<PAGE>
22
given in the Prospectus, any material adverse change in
the business, property or condition, financial or
otherwise, of PSCo and its subsidiaries, considered as
one enterprise, whether or not arising in the ordinary
course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the
United States, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or
development involving a prospective change in national
or international political, financial or economic
conditions, in each case the effect of which is such as
to make it, in the judgment of the Underwriters,
impracticable to market the Securities or to enforce
contracts for the sale of the Securities, or (iii) if
trading in any securities of PSCo has been suspended or
materially limited by the Commission or the New York
Stock Exchange, or if trading generally on the New York
Stock Exchange has been suspended or materially limited,
or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices have been required,
by such exchange or by order of the Commission, or any
other governmental authority, or (iv) if a banking
moratorium has been declared by either Federal or New
York authorities.
(b) LIABILITIES. If this Agreement is terminated
pursuant to this Section, such termination shall be without
liability of any party to any other party except as
provided in Section 4 hereof, and provided further that
Sections 1, 6, 7 and 8 shall survive such termination and
remain in full force and effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE
UNDERWRITERS. If any Underwriter or Underwriters shall fail
or refuse at the Time of Delivery (otherwise than for some
reason sufficient to justify, in accordance with the
provisions hereof, the cancellation or termination of its
or their obligations hereunder) to purchase and pay for the
Securities which it or they have agreed to purchase as
provided in paragraph 2 hereof (the "Defaulted
Securities"), and:
(a) if the aggregate principal amount of the
Defaulted Securities does not exceed 10% of the aggregate
principal amount of the Securities, the remaining
Underwriters (the "Non-Defaulting Underwriters") shall have
the right, within a period of 24 hours thereafter, to make
arrangements for one or more of the Non-Defaulting
Underwriters, or any other purchasers acceptable to PSCo,
to purchase all, but not less than all, of the Defaulted
Securities in such principal amounts as may be agreed upon
and upon the terms herein set forth; if, however, during
such 24 hour period the Non-Defaulting Underwriters shall
not have completed such arrangements for the purchase of
all the Defaulted Securities, then the Non-Defaulting
Underwriters shall be obligated to purchase and pay for the
Defaulted Securities in proportion to their respective
original purchase commitments hereunder (based upon the
ratio that each of their respective original purchase
commitments bears to the aggregate original purchase
commitment of the Non-Defaulting Underwriters); or
<PAGE>
23
(b) if the aggregate principal amount of the
Defaulted Securities exceeds 10% of the aggregate principal
amount of the Securities, the Non-Defaulting Underwriters
shall have the right, within a period of 24 hours
thereafter, to make arrangements for one or more of the
Non-Defaulting Underwriters, or any other purchasers
acceptable to PSCo, to purchase the Defaulted Securities in
such principal amounts as may be agreed upon and upon the
terms herein set forth; if, however, during such 24 hour
period the Non-Defaulting Underwriters shall not have
completed such arrangements for the purchase of all the
Defaulted Securities, then PSCo may, within a further
period of 24 hours, make arrangements with one or more
other members of the National Association of Securities
Dealers, Inc., satisfactory to the Non-Defaulting
Underwriters, to purchase and pay for, upon the terms
herein set forth, Defaulted Securities for the purchase of
which no arrangements shall have been made by the
Non-Defaulting Underwriters. In the event that neither the
Non-Defaulting Underwriters nor PSCo has arranged for the
purchase of the Defaulted Securities as above provided,
then this Agreement shall terminate.
No action taken by PSCo or the Non-Defaulting Underwriters
under this Section 9 shall relieve any defaulting Underwriter of
liability in respect of its default hereunder.
In the event that the sale and delivery of all or any
principal amount of the Securities shall be effected as provided
in clause (a) or (b) above, (a) either PSCo or the Underwriters
shall have the right to postpone the Time of Delivery until the
fifth business day after the Time of Delivery originally specified
in Section 2 hereof or such other time as PSCo and the
Underwriters (or the representative of the Non-Defaulting
Underwriters and the substituted purchasers, if any) shall agree,
(b) PSCo shall promptly prepare and file with the Commission any
amendments or supplements to the Prospectus which may thereby be
made necessary and (c) the respective principal amounts of
Securities to be purchased by the Non-Defaulting Underwriters or
substituted purchasers shall be taken as the basis of their
respective purchase commitments hereunder.
SECTION 11. NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed
to the Underwriters c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated at North Tower, World Financial Center, New York, New
York 10281-1201, attention of: Robert Craig (telecopy number:
212-449-8636); and notices to PSCo shall be directed to it at 1225
17th Street, Suite 900, Denver, Colorado 80507-5533, Attention:
Brian P. Jackson (telecopy number: 303-294-2976).
SECTION 12. PARTIES. This Agreement shall each inure to the
benefit of and be binding upon the Underwriters and PSCo and their
respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person,
<PAGE>
24
firm or corporation, other than the Underwriters and PSCo and
their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive
benefit of the Underwriters and PSCo and their respective
successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of
Securities from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. EFFECT OF HEADINGS. The Article and Section
headings herein are for convenience only and shall not affect the
construction hereof.
<PAGE>
25
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to PSCo a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters and PSCo in accordance with its terms.
Very truly yours,
PUBLIC SERVICE COMPANY OF COLORADO
By: /s/ Richard C. Kelly
---------------------------
Richard C. Kelly
Executive Vice President
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
LEHMAN BROTHERS INC.
SALOMON SMITH BARNEY INC.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By /s/ Robert Craig
------------------------------
Authorized Signatory
For itself and as Representative of the other Underwriters named in Schedule A
hereto.
<PAGE>
Schedule A
----------
Principal Amount of
Name of Underwriter Securities to be Purchased
------------------- --------------------------
Merrill Lynch, Pierce, Fenner
& Smith Incorporated.................. $120,000,000
Lehman Brothers Inc..................... 40,000,000
Salomon Smith Barney Inc................ 40,000,000
------------
Total............................. $200,000,000
------------
------------
<PAGE>
Exhibit 4.1
- --------------------------------------------------------------------------------
PUBLIC SERVICE COMPANY OF COLORADO,
AS ISSUER
TO
THE BANK OF NEW YORK,
AS TRUSTEE
------------------------------------
INDENTURE
SENIOR DEBT SECURITIES
DATED AS OF JULY 1, 1999
------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PUBLIC SERVICE COMPANY OF COLORADO
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of July 1, 1999
<TABLE>
<CAPTION>
Trust Indenture Indenture Section
Act Section
<S> <C>
ss.310(a)(1).................................................................... 609
(a)(2).................................................................... 609
(a)(3).................................................................... Not Applicable
(a)(4).................................................................... Not Applicable
(a)(5).................................................................... 609
(b)....................................................................... 608, 610
ss.311(a)....................................................................... 613
(b)....................................................................... 613
ss.312(a)....................................................................... 701, 702(a)
(b)....................................................................... 702(b)
(c)....................................................................... 702(c)
ss.313(a)....................................................................... 703(a)
(b)....................................................................... Not Applicable
(c)....................................................................... 703(a)
(d)....................................................................... 703(b)
ss.314(a)....................................................................... 704
(b)....................................................................... Not Applicable
(c)(1).................................................................... 102
(c)(2).................................................................... 102
(c)(3).................................................................... Not Applicable
(d)....................................................................... Not Applicable
(e)....................................................................... 102
ss.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
ss.316(a)(last sentence) ....................................................... 101
(a)(1)(A)................................................................. 512
(a)(1)(B)................................................................. 502, 513
(a)(2).................................................................... Not Applicable
(b)....................................................................... 508
ss.317(a)(1).................................................................... 503
(a)(2).................................................................... 504
(b)....................................................................... 1008
ss.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
<TABLE>
<CAPTION>
Page
----
<S> <C>
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
</TABLE>
-i-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
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
</TABLE>
-ii-
<PAGE>
<TABLE>
<CAPTION>
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<S> <C>
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
</TABLE>
-iii-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 613. Preferential Collection of Claims
Against Company.......................................................................45
SECTION 614. Appointment of Authenticating Agent...................................................46
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.....................................................52
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.......................................................57
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
</TABLE>
-iv-
<PAGE>
<TABLE>
<S> <C>
SECTION 1008. Money for Securities Payments to Be Held
in Trust..............................................................................59
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..................................................................63
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
</TABLE>
-v-
<PAGE>
INDENTURE, dated as of July 1,1999 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 corporate trust office at 101 Barclay Street, Floor 21 West, New York,
New York 10286.
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;
-1-
<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.
-2-
<PAGE>
"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 10286.
"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.
-3-
<PAGE>
"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 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.
-4-
<PAGE>
"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 pro tected 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, partner ship,
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 any vice president, any assistant secretary, any assistant treasurer, any
trust officer or assistant trust officer, 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 specifi cally 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 Administration, 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.
The Bank of New York
---------------------------------------
as Trustee
Dated: By:
--------------- ------------------------------------
Authorized Signatory
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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 in dividuals 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 deter mine, 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
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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.
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; and, further, provided that interest payable at Maturity shall be paid
to the Person to whom principal is paid at Maturity.
Any interest on any Security of any series, or Tranche
thereof, which is payable, but is not punctually paid or duly
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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 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
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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 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
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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
(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,
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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 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 a
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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 and expenses, 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 received by it hereunder except as otherwise
agreed upon in writing with the Company.
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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 (whether asserted by
the Company, a Securityholder or any other Person) 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. 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 delivery of notice of removal, the Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(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
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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 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
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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 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
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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 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.
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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.
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 all or
substantially all 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
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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:
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.
The Bank of New York
-----------------------------------
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
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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;
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
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(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 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 2000, 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.
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(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 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
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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 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.
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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.
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
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(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 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
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(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.
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,
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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);
(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
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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.
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.
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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 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 signed by the
principal executive,
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financial or accounting officer of the Company 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 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
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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 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.
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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.
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
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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 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 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
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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 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.
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SECTION 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed at least 30 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:
(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,
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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.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the day and year first above written.
PUBLIC SERVICE COMPANY
OF COLORADO
By /s/ Richard C. Kelly
-------------------------------
Richard C. Kelly
Executive Vice President
THE BANK OF NEW YORK,
as Trustee
By /s/ Walter N. Gitlin
-------------------------------
Walter N. Gitlin
Vice President
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Exhibit 4.2
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PUBLIC SERVICE COMPANY
OF COLORADO
TO
THE BANK OF NEW YORK,
AS TRUSTEE
-------------------------------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of July 15, 1999
Supplementing the Indenture
dated as of July 1, 1999
------------------------------------
Establishing the Securities of Series A
Senior Notes 6 7/8% due 2009
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- -------------------------------------------------------------------------------
<PAGE>
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of July 15, 1999, is between
PUBLIC SERVICE COMPANY OF COLORADO, a Colorado corporation (hereinafter called
the "Issuer" or the "Company"), having its principal office at 1225 17th Street,
Denver, Colorado 80202, and THE BANK OF NEW YORK, as Trustee (hereinafter called
the "Trustee"), having its principal corporate trust office at 101 Barclay
Street, Floor 21 West, New York, New York 10286.
RECITALS OF THE ISSUER
The Issuer has heretofore executed and delivered an Indenture, dated as of
July 1, 1999 (the "Original Indenture", the Original Indenture, as supplemented
by this supplemental indenture being hereinafter referred to as the
"Indenture"), relating to the issuance at any time or from time to time of its
Securities on terms to be specified at the time of issuance. As of the date
hereof, no Securities have been issued under the Indenture. Terms used and not
otherwise defined herein shall (unless the context otherwise clearly requires)
have the respective meanings given to them in the Original Indenture.
The Original Indenture provides in Article Three thereof that, prior to the
issuance of Securities of any series, the form of such Securities and the terms
applicable to such series shall be established in, or pursuant to, the authority
granted in a resolution of the Board of Directors or established in one or more
indentures supplemental thereto.
The Issuer desires by this supplemental indenture, among other things, to
establish the form of the Securities of a series, to be titled Series A Senior
Notes 6 7/8% due 2009 of the Issuer, and to establish the terms applicable to
such series, pursuant to Sections 201, 301 and 901 of the Original Indenture.
The Issuer has duly authorized the execution and delivery of this supplemental
indenture.
Article Nine of the Original Indenture provides that the Issuer, when
authorized by a resolution of its Board of Directors, and the Trustee may from
time to time and at any time amend the Indenture without the consent of
Securityholders for certain purposes enumerated in Section 901 thereof,
including the purposes set forth in subsection (7) of said Section 901.
The execution and delivery of this supplemental indenture by the parties
hereto are in all respects authorized by the provisions of the Indenture.
All things necessary have been done to make this supplemental indenture a
valid agreement of the Issuer, in accordance with its terms.
<PAGE>
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises, it is mutually covenanted and
agreed, as follows:
ARTICLE ONE
ESTABLISHMENT OF SERIES A SENIOR NOTES 6 7/8% DUE 2009
Section 1.01. The title of the series of the Securities established by this
supplemental indenture shall be Series A Senior Notes 6 7/8 % due 2009 of the
Issuer (hereinafter called the "Series A Notes").
Section 1.02. The Series A Notes shall be limited to $200,000,000 in
aggregate principal amount.
Section 1.03. The Series A Notes may be issued in whole or in part as one
or more Global Securities and The Depository Trust Company, or a nominee
thereof, shall be the Depository for such Global Security or Global Securities.
The Depository for such Global Security or Global Securities representing Series
A Notes may surrender one or more Global Securities representing Series A Notes
in exchange in whole or in part for individual Series A Notes on such terms as
are acceptable to the Issuer and such Depository and otherwise subject to the
terms of the Indenture.
Section 1.04. The principal of the Series A Notes shall be payable on July
15, 2009.
Section 1.05. The Series A Notes shall bear interest at the rate of 6 7/8%
per annum and shall accrue from July 16, 1999. The Interest Payment Dates shall
be January 15 and July 15 in each year, commencing January 15, 2000. The Regular
Record Dates in respect of such Interest Payment Dates shall be January 1 and
July 1 in each year, respectively.
Section 1.06. The Corporate Trust Office of The Bank of New York shall be
the place at which the principal of the Series A Notes shall be payable. Any
interest thereon shall be paid as specified in Section 307 of the Original
Indenture.
Section 1.07. The Series A Notes are subject to redemption upon not less
than 30 days' notice by first class mail, in whole at any time or in part from
time to time at the option of the Company at a redemption price equal to the
greater of (i) 100% of the principal amount hereof to be redeemed or (ii) the
sum of the present values of the remaining scheduled payments of principal and
interest thereon discounted to the redemption date on a semiannual basis
(assuming a 360 day year consisting of
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<PAGE>
twelve 30-day months) at the Treasury Yield plus 15 basis points, plus in each
case accrued and unpaid interest to the redemption date.
"Treasury Yield" means, with respect to any redemption date, the rate per
annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term hereof that would be utilized, at the time of selection and
in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term hereof.
"Independent Investment Banker" means Merrill Lynch, Pierce, Fenner & Smith
Incorporated or, if such firm is unwilling or unable to select the Comparable
Treasury Issue, one of the remaining Reference Treasury Dealers appointed by the
Trustee after consultation with the Company.
"Comparable Treasury Price" means, with respect to any redemption date, (i)
the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
business day preceding such Redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such business day, (A) the average
of the Reference Treasury Dealer Quotations for such redemption date, after
excluding the highest and lowest such Reference Treasury Dealer Quotations for
such redemption date, or (B) if the Trustee obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all such Quotations.
"Reference Treasury Dealer Quotations" means, with respect to each Reference
Treasury Dealer and any Redemption date, the average, as determined by the
Company, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Company by such Reference Treasury Dealer at 5:00 p.m. on the
third business day preceding such redemption date.
"Reference Treasury Dealer" means (i) any primary U.S. Government
securities dealer in New York City (a "Primary Treasury Dealer") designated by
the Company.
In the event of redemption of the Series A Notes in part only, a new Series
A Note or Notes of the same series for
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<PAGE>
the unredeemed portion thereof will be issued in the name of the Holder thereof
upon the cancellation hereof.
Section 1.08. Notice of redemption will be mailed at least 30 days before
the redemption date to the Holder thereof at his address appearing on the
Security Register. A notice of redemption shall provide that it is subject to
the occurrence of any event before the date fixed for such redemption as
described in such notice ("Conditional Redemption") and such notice of
Conditional Redemption shall be of no effect unless all such conditions to the
redemption have occurred before such date or have been waived by the Company.
Section 1.09. The Series A Notes shall be issued in denominations of $1000
and any integral multiple thereof.
Section 1.10. Sections 1301 and 1302 of the Indenture shall be applicable
to the Series A Notes.
Section 1.11. The Issuer hereby appoints, or confirms the appointment of,
The Bank of New York as the initial Trustee, Securities Registrar and Paying
Agent, subject to the provisions of the Indenture with respect to resignation,
removal and succession, and subject, further, to the right of the Issuer to
appoint additional agents (including Paying Agents).
Section 1.12. The Series A Notes shall be substantially in the form set
forth in EXHIBIT A hereto, and shall have such further terms as are reflected in
such form, subject to changes in the form thereof made by the Issuer and
acceptable to the Trustee.
ARTICLE TWO
MISCELLANEOUS
Section 2.01. The recitals contained herein shall be taken as the
statements of the Issuer, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representation as to the validity
of this supplemental indenture. The Indenture, as supplemented by this
supplemental indenture, is in all respects hereby adopted, ratified and
confirmed.
Section 2.02. This supplemental indenture may be executed in any number of
counterparts, and on separate counterparts, each of which shall be an original;
but such counterparts shall together constitute but one and the same instrument.
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<PAGE>
Section 2.03. If any provision of this supplemental indenture limits,
qualifies or conflicts with the duties imposed by any of Sections 310 to 317,
inclusive, of the Trust Indenture Act of 1939, as amended by the Trust Indenture
Reform Act of 1990, through operation of Section 318(c), such imposed duties
shall control.
Section 2.04. The Article headings herein are for convenience only and
shall not affect the interpretation hereof.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed as of the 15th day of July, 1999.
PUBLIC SERVICE COMPANY OF COLORADO
By: /s/ Richard C. Kelly
--------------------------
Richard C. Kelly
Executive Vice President
THE BANK OF NEW YORK
By: /s/ Walter N. Gitlin
--------------------------
Authorized Signatory
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<PAGE>
EXHIBIT A
Form of Series A Senior Note 6 7/8% due 2009
THIS SECURITY IS A GLOBAL SECURITY REGISTERED IN THE NAME OF THE DEPOSITORY
(REFERRED TO HEREIN) OR A NOMINEE THEREOF AND UNLESS AND UNTIL IT IS EXCHANGED
IN WHOLE OR IN PART FOR THE INDIVIDUAL SECURITIES REPRESENTED HEREBY, THIS
GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT 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 DEPOSITORY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (55 WATER STREET, NEW YORK, NEW
YORK), TO THE TRUSTEE FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
PUBLIC SERVICE COMPANY OF COLORADO
Series A Senior Note 6 7/8 % due 2009
Interest Rate: 6 7/8%
Interest Payment Dates: January 15 and July 15
Regular Record Dates: January 1 and July 1
Original Interest Accrual Date: January 16,1999
Stated Maturity: July 15,2009
CUSIP No. ___________ Principal Amount
$200,000,000
PUBLIC SERVICE COMPANY OF COLORADO, a corporation duly organized and
existing under the laws of the State of Colorado (herein called the "Company",
which term includes any successor
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<PAGE>
corporation under the Indenture referred to below) promises to pay to
_____________________________________ or registered assigns the principal sum of
Two Hundred Million Dollars on July 15, 2009, the Stated Maturity specified
above.
1. Interest.
The Company promises to pay interest on the principal amount hereof at
the Interest Rate per annum shown above from the Original Interest
Accrual Date specified above, or from the most recent Interest Payment
Date to which interest has been paid, semiannually in arrears, on the
Interest Payment Dates specified above, in each year, commencing with
the Interest Payment Date next succeeding the Original Interest
Accrual Date specified above, until the principal hereof is paid or
duly provided for. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.
2. Method of Payment.
The Company will pay interest so payable to the person who is the
registered holder hereof at the close of business on the Regular
Record Date for the next Interest Payment Date, except as otherwise
provided in the Indenture and except that interest payable at Maturity
will be paid to the person to whom principal is paid at Maturity.
Payment of principal shall be made upon presentation hereof at the
office of this Paying Agent. The Company will pay principal and
interest in money of the United States that at the time of payment is
legal tender for payment of public and private debts. The Company may
pay principal and interest by check payable in such money. It may mail
an interest check to the holder's registered address.
3. Agents.
Initially, The Bank of New York, 101 Barclay Street, Floor 21 West,
New York, New York 10286 Attention: Corporate Trust Administration,
will act as Paying Agent and Securities Registrar. The Company may
change the Paying Agent to provide for more than one such agent. The
Company may appoint one or more Security Registrars. The Company or
any Affiliate may act in any such capacity. The Trustee may appoint
one or more Authenticating Agents to authenticate the Securities.
4. Indenture.
The securities of this series (the "Securities") have been issued
under an Indenture dated as of July 1, 1999
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<PAGE>
(the "Indenture") between the Company and The Bank of New York (the
"Trustee," which term includes any successor trustee under the
Indenture). The terms of the Securities include those stated in the
Indenture and in the Supplemental Indenture creating the Securities
and those made part of the Indenture by the Trust Indenture Act of
1939 (15 U.S. Code Sections 77aaa-77bbbb). Securityholders are
referred to the Indenture, the Supplemental Indenture and the Trust
Indenture Act of 1939, as amended, for a statement of such terms.
5. Redemption.
This Security is subject to redemption upon not less than 30 days'
notice by first class mail, in whole at any time or in part from time
to time at the option of the Company at a redemption price equal to
the greater of (i) 100% of the principal amount hereof to be redeemed
or (ii) the sum of the present values of the remaining scheduled
payments of principal and interest thereon discounted to the
redemption date on a semiannual basis (assuming a 360 day year
consisting of twelve 30-day months) at the Treasury Yield plus 15
basis points, plus in each case accrued and unpaid interest to the
redemption date.
"Treasury Yield" means, with respect to any redemption date, the
rate per annum equal to the semiannual equivalent yield to maturity of
the Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a
maturity comparable to the remaining term hereof that would be
utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities
of comparable maturity to the remaining term hereof. "Independent
Investment Banker" means Merrill Lynch, Pierce, Fenner & Smith
Incorporated or, if such firm is unwilling or unable to select the
Comparable Treasury Issue, one of the remaining Reference Treasury
Dealers appointed by the Trustee after consultation with the Company.
"Comparable Treasury Price" means, with respect to any redemption
date, (i) the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its
principal amount) on the third business day preceding such
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<PAGE>
Redemption date, as set forth in the daily statistical release (or any
successor release) published by the Federal Reserve Bank of New York
and designated "Composite 3:30 p.m. Quotations for U.S. Government
Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such business day, (A)
the average of the Reference Treasury Dealer Quotations for such
redemption date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations for such redemption date, or (B) if the
Trustee obtains fewer than four such Reference Treasury Dealer
Quotations, the average of all such Quotations. "Reference Treasury
Dealer Quotations" means, with respect to each Reference Treasury
Dealer and any Redemption date, the average, as determined by the
Company, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount)
quoted in writing to the Company by such Reference Treasury Dealer at
5:00 p.m. on the third business day preceding such redemption date.
"Reference Treasury Dealer" means (i) any primary U.S. Government
securities dealer in New York City (a "Primary Treasury Dealer")
designated by the Company.
In the event of redemption of this Security in part only, a new
Security or Securities of this series for the unredeemed portion
hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
6. Notice of Redemption.
Notice of redemption will be mailed at least 30 days before the
redemption date to the holder hereof at his address appearing on the
Security Register.
A notice of redemption shall provide that it is subject to the
occurrence of any event before the date fixed for such redemption as
described in such notice ("Conditional Redemption") and such notice of
Conditional Redemption shall be of no effect unless all such
conditions to the redemption have occurred before such date or have
been waived by the Company.
7. Denominations, Transfer, Exchange.
The Securities of this series are in registered form without coupons
in denominations of $1000 and whole multiples of $1000. The transfer
of this Security may be registered and this Security may be exchanged
as provided in the Indenture. The Securities Registrar may require a
holder, among other things, to furnish
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<PAGE>
appropriate endorsements and transfer documents and to pay any taxes
and fees required by law or the Indenture. The Securities Registrar
need not exchange or register the transfer of any Security of this
series or portion thereof selected for redemption. Also, it need not
exchange or register the transfer of any Security for a period of 15
days before the mailing of a notice of redemption of Securities of
this series selected to be redeemed.
8. Persons Deemed Owners.
The registered holder of a Security may be treated as its owner for
all purposes.
9. Amendments and Waivers.
Subject to certain exceptions, the Indenture may be amended with the
consent of the holders of a majority in outstanding principal amount
of the Securities. Subject to certain exceptions, a default under the
Indenture may be waived with the consent of the holders of a majority
in outstanding principal amount of the Securities.
Without the consent of any Securityholder, the Indenture may be
amended, among other things, to cure any ambiguity, omission, defect
or inconsistency; to provide for assumption of Company obligations to
Securityholders; or to make any change that does not materially
adversely affect the rights of any Securityholder.
10. Restrictive Covenants.
The Securities are unsecured general obligations of the Company
limited to $200,000,000 principal amount. The Indenture does not limit
the amount of debt the Company may issue thereunder or otherwise.
11. Successors.
When a successor assumes all the obligations of the Company under the
Securities and the Indenture, the Company will be released from those
obligations.
12. Defeasance Prior to Redemption or Maturity.
Subject to certain conditions, the Company at any time may terminate
some or all of its obligations hereunder and the Indenture if the
Company deposits with the Trustee money or U.S. Government Obligations
for the payment of principal and interest hereon to redemption or
maturity. U.S. Government Obligations are securities backed by the
full faith and credit of the United States
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<PAGE>
of America or certificates representing an ownership interest in such
Obligations.
13. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or the
holders of at least 25% in principal amount of the outstanding
Securities may declare the principal of all such Securities to be due
and payable immediately.
Securityholders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the Securities.
Subject to certain limitations, holders of a majority in principal
amount of the Securities may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Securityholders notice
of any continuing default (except a default in payment) if it
determines that withholding notice is in their interests. The Company
must furnish annual compliance certificates to the Trustee.
14. Trustee Dealings with Company.
The Bank of New York, the Trustee under the Indenture, in its
individual or any other capacity, may make loans to, accept deposits
from, and perform services for the Company or its Affiliates, and may
otherwise deal with the Company or its Affiliates, as if it were not
Trustee.
15. 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 the 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. The waiver and release are part of the consideration for
the issue of the Securities.
16. Authentication.
This Security shall not be valid for any purpose and shall not be
entitled to any benefit under the Indenture until authenticated by a
manual signature of the Trustee or any Authenticating Agent.
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<PAGE>
17. Abbreviations.
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as: TEN COM (tenants in common), TEN ENT (tenants by
the entireties), JT TEN (joint tenants with right of survivorship and
not as tenants in common), CUST (custodian), and U/G/M/A (Uniform
Gifts to Minors Act).
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<PAGE>
The Company will furnish to any Securityholder upon written request
and without charge a copy of the Indenture, including the Supplemental
Indenture which contains the text of this Security in larger type. Requests
may be made to: Public Service Company of Colorado, 1225 17th Street, Denver,
Colorado, 80202 attention: Corporate Secretary.
[Corporate Seal] PUBLIC SERVICE
COMPANY OF COLORADO
By: _______________________
name:
title:
Attest:
By:__________________
name:
title:
Authenticated:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
Dated: July 16, 1999 By: ____________________________
Authorized Signatory
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<PAGE>
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to:
---------------------------------------
---------------------------------------
(Insert assignee's social security or tax I.D. no.)
---------------------------------------
---------------------------------------
---------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint __________________________________ agent to transfer
this Security on the books of the Company. The agent may substitute another to
act for him.
Date:_________________ Your Signature:___________________
(Sign exactly as your name appears on the other side of this Security)
A-9
