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REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PSI ENERGY, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
INDIANA 35-0594457
(State of incorporation) (I.R.S. Employer
Identification No.)
</TABLE>
1000 EAST MAIN STREET
PLAINFIELD, INDIANA 46168
(317) 839-9611
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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WILLIAM L. SHEAFER, TREASURER
139 EAST FOURTH STREET
CINCINNATI, OHIO 45202
(513) 381-2000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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COPIES OF ALL COMMUNICATIONS TO:
<TABLE>
<S> <C>
CHARLES S. WHITMAN, III DAVID R. PRECHTEL
DAVIS POLK & WARDWELL BINGHAM SUMMERS WELSH & SPILMAN
450 LEXINGTON AVENUE 2700 MARKET TOWER
NEW YORK, NEW YORK 10017 10 WEST MARKET STREET
(COUNSEL FOR THE UNDERWRITERS) INDIANAPOLIS, INDIANA 46204
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of the Registration Statement.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment
plans, please check the following box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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CALCULATION OF REGISTRATION FEE
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<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED PER UNIT (1) OFFERING PRICE (1) REGISTRATION FEE
<S> <C> <C> <C> <C>
Debt Securities.................................. $250,000,000 100% $250,000,000 $86,207.50
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
SUBJECT TO COMPLETION, DATED AUGUST 27, 1996
PROSPECTUS
PSI ENERGY, INC.
DEBT SECURITIES
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PSI ENERGY, INC. (PSI) INTENDS FROM TIME TO TIME TO ISSUE UP TO $250,000,000
AGGREGATE PRINCIPAL AMOUNT OF UNSECURED DEBT SECURITIES (DEBT SECURITIES) IN
ONE OR MORE SERIES ON TERMS TO BE DETERMINED AT THE TIME OR TIMES OF SALE.
FOR EACH ISSUE OF THE DEBT SECURITIES FOR WHICH THIS PROSPECTUS IS BEING
DELIVERED (OFFERED SECURITIES) THERE WILL BE AN ACCOMPANYING PROSPECTUS
SUPPLEMENT (PROSPECTUS SUPPLEMENT) THAT SETS FORTH, WITHOUT LIMITATION
AND TO THE EXTENT APPLICABLE, THE SPECIFIC DESIGNATION, AGGREGATE
PRINCIPAL AMOUNT, DENOMINATION, MATURITY, PREMIUM, IF ANY, RATE OF
INTEREST (WHICH MAY BE FIXED OR VARIABLE) OR METHOD OF CALCULATION
THEREOF, TIME OF PAYMENT OF INTEREST, ANY TERMS FOR REDEMPTION, ANY
SINKING FUND PROVISIONS, ANY SUBORDINATION PROVISIONS, THE INITIAL
PUBLIC OFFERING PRICE, THE NAMES OF ANY UNDERWRITERS OR AGENTS, THE
PRINCIPAL AMOUNTS, IF ANY, TO BE PURCHASED BY THE UNDERWRITERS,
THE COMPENSATION OF SUCH UNDERWRITERS OR AGENTS, AND ANY OTHER
SPECIAL TERMS OF THE OFFERED SECURITIES.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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PSI MAY SELL THE DEBT SECURITIES THROUGH UNDERWRITERS, DEALERS OR AGENTS, OR
DIRECTLY TO ONE OR A LIMITED NUMBER OF PURCHASERS. THE PROSPECTUS SUPPLEMENT
WILL SET FORTH THE NAMES OF UNDERWRITERS, DEALERS OR AGENTS, IF ANY, ANY
APPLICABLE COMMISSIONS OR DISCOUNTS AND THE NET PROCEEDS TO PSI FROM THE SALE OF
THE OFFERED SECURITIES.
, 1996
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AVAILABLE INFORMATION
PSI IS SUBJECT TO THE INFORMATIONAL REQUIREMENTS OF THE SECURITIES EXCHANGE
ACT OF 1934 (EXCHANGE ACT) AND ACCORDINGLY FILES REPORTS AND OTHER INFORMATION
WITH THE SECURITIES AND EXCHANGE COMMISSION (COMMISSION). INFORMATION CONCERNING
DIRECTORS AND OFFICERS, THEIR REMUNERATION, AND ANY MATERIAL INTEREST OF SUCH
PERSONS IN TRANSACTIONS WITH PSI, AS OF PARTICULAR DATES, IS DISCLOSED IN PSI'S
ANNUAL REPORT ON FORM 10-K FILED WITH THE COMMISSION. SUCH REPORTS AND OTHER
INFORMATION CAN BE INSPECTED AND COPIED AT THE PUBLIC REFERENCE FACILITIES
MAINTAINED BY THE COMMISSION AT ROOM 1024, 450 FIFTH STREET, N.W., WASHINGTON,
D.C.; SUITE 1400, 500 WEST MADISON STREET, CHICAGO, ILLINOIS; AND SUITE 1300,
SEVEN WORLD TRADE CENTER, NEW YORK, N.Y. COPIES OF SUCH MATERIAL CAN ALSO BE
OBTAINED FROM THE PUBLIC REFERENCE SECTION OF THE COMMISSION AT ITS PRINCIPAL
OFFICE AT 450 FIFTH STREET, N.W., WASHINGTON, D.C. 20549, AT PRESCRIBED RATES,
OR FROM THE COMMISSION'S INTERNET WEB SITE AT HTTP://WWW.SEC.GOV. IN ADDITION,
SUCH MATERIAL CAN ALSO BE INSPECTED AT THE OFFICE OF THE NEW YORK STOCK
EXCHANGE.
PSI'S PRINCIPAL EXECUTIVE OFFICE IS LOCATED AT 1000 EAST MAIN STREET,
PLAINFIELD, INDIANA 46168 (TELEPHONE (317-839-9611).
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NO DEALER, SALESMAN, OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS IN CONNECTION WITH THE OFFER CONTAINED IN THIS PROSPECTUS, AND, IF
GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY PSI OR ANY UNDERWRITER. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE
SECURITIES OFFERED HEREBY IN ANY STATE TO ANY PERSON TO WHOM IT IS UNLAWFUL TO
MAKE SUCH OFFER OR SOLICITATION IN SUCH STATE. THE DELIVERY OF THIS PROSPECTUS
AT ANY TIME DOES NOT IMPLY THAT THE INFORMATION HEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO THE DATE HEREOF.
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INCORPORATION OF CERTAIN DOCUMENT BY REFERENCE
There is hereby incorporated in this Prospectus by reference the following
documents heretofore filed with the Securities and Exchange Commission:
1. PSI's Annual Report on Form 10-K for the year ended December 31,
1995 filed pursuant to the Exchange Act.
2. PSI's Quarterly Reports on Form 10-Q for the quarters ended March
31, 1996 and June 30, 1996 filed pursuant to the Exchange Act.
All documents filed by PSI pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act after the date of this Prospectus and prior to the termination
of this offering shall be deemed to be incorporated in this Prospectus by
reference and to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which is deemed to be incorporated
by reference herein or in the Prospectus Supplement modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
PSI HEREBY UNDERTAKES TO PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM A
COPY OF THIS PROSPECTUS HAS BEEN DELIVERED, ON THE WRITTEN OR ORAL REQUEST OF
ANY SUCH PERSON, A COPY OF ANY OR ALL OF THE DOCUMENTS REFERRED TO ABOVE WHICH
HAVE BEEN OR MAY BE INCORPORATED IN THIS PROSPECTUS BY REFERENCE, OTHER THAN
EXHIBITS TO SUCH DOCUMENTS. REQUESTS FOR SUCH COPIES SHOULD BE DIRECTED TO MR.
WILLIAM L. SHEAFER, TREASURER, PSI ENERGY, INC., 139 EAST FOURTH STREET,
CINCINNATI, OHIO 45202 (TELEPHONE 513-381-2000).
2
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THE COMPANY
PSI (incorporated in Indiana) is a wholly-owned subsidiary of Cinergy Corp.
(Cinergy), a registered holding company under the Public Utility Holding Company
Act of 1935. PSI is an electric public utility company with two wholly-owned
non-utility subsidiaries. PSI is engaged in the production, transmission,
distribution, and sale of electric energy in north central, central and southern
Indiana. It serves an estimated population of two million people located in 69
of the state's 92 counties including the cities of Bloomington, Columbus,
Kokomo, Lafayette, New Albany, and Terre Haute.
USE OF PROCEEDS
Except as otherwise described in the Prospectus Supplement, the net proceeds
of the Offered Securities will be applied primarily to the redemption,
repurchase, repayment, or retirement of outstanding indebtedness and preferred
stock.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for each of the years ended December
31, 1991 through 1995 and the twelve months ended June 30, 1996 were 1.51, 3.26,
3.52, 2.52, 3.55 and 3.49, respectively.
DESCRIPTION OF DEBT SECURITIES
GENERAL
The Debt Securities may be issued in one or more new series under an
Indenture between the Company and The Fifth Third Bank, as Trustee (Trustee).
The following summary does not purport to be complete and is subject in all
respects to the provisions of, and is qualified in its entirety by reference to,
the Indenture and the Debt Securities, the forms of which are filed as exhibits
to the registration statement of which this Prospectus forms a part. Whenever
particular provisions or defined terms in such documents are referred to herein
or in a Prospectus Supplement, such provisions or terms are incorporated by
reference herein or therein, as the case may be.
The Debt Securities will be unsecured obligations of the Company.
Reference is made to the Prospectus Supplement relating to any particular
issue of Offered Securities for the following terms, among others: (1) the title
of such Debt Securities; (2) any limit on the aggregate principal amount of such
Debt Securities or the series of which they are a part; (3) the date or dates on
which the principal of any of such Debt Securities will be payable; (4) the rate
or rates at which any of such Debt Securities will bear interest, if any, the
date or dates from which any such interest will accrue, the Interest Payment
Dates on which any such interest will be payable and the Regular Record Date for
any such interest payable on any Interest Payment Date; (5) the right, if any,
to extend interest payment periods and the duration of such extension; (6) the
place or places where the principal of and any premium and interest on any of
such Debt Securities will be payable; (7) the period or periods within which,
the price or prices at which and the terms and conditions on which any of such
Debt Securities may be redeemed, in whole or in part, at the option of the
Company; (8) the obligation, if any, of the Company to redeem or purchase any of
such Debt Securities pursuant to any sinking fund or analogous provision or at
the option of the Holder thereof, and the period or periods within which, the
price or prices at which and the terms and conditions on which any of such Debt
Securities will be redeemed or purchased, in whole or in part, pursuant to any
such obligation; (9) the denominations in which any of such Debt Securities will
be issuable; (10) if the amount of principal of or any premium or interest on
any of such Debt Securities may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts will be determined; (11)
if applicable, that such Debt Securities, in whole or any specified part, are
defeasible pursuant to the provisions of the Indenture described under
"Defeasance and Covenant Defeasance"; (12) whether any of such Debt Securities
will be issuable in whole or in part in the form of one or more Global Debt
Securities and, if so, the respective Depositaries for such Global Debt
Securities, the form of any legend or legends to be borne by any such Global
Debt Security in addition to or in lieu of the legend referred to under "Form,
Exchange and
3
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Transfer--Global Debt Securities" and, if different from those described under
such caption, any circumstances under which any such Global Debt Security may be
exchanged in whole or in part for Debt Securities registered, and any transfer
of such Global Debt Security in whole or in part may be registered, in the names
of Persons other than the Depositary for such Global Debt Security or its
nominee; (13) any addition to or change in the Events of Default applicable to
any of such Debt Securities and any change in the right of the Trustee or the
Holders to declare the principal amount of any of such Debt Securities due and
payable; (14) any addition to or change in the covenants in the Indenture; (15)
the applicability of or any change in the subordination provisions of the
Indenture for a series of Debt Securities; and (16) any other terms of such Debt
Securities not inconsistent with the provisions of the Indenture. (Section 301).
Except as otherwise described in the Prospectus Supplement, the covenants
contained in the Indenture would not afford holders of Debt Securities
protection in the event of a highly-leveraged transaction involving the Company.
SUBORDINATION OF CERTAIN DEBT SECURITIES
The Indenture provides that, pursuant to a supplemental indenture or a Board
Resolution, one or more series of Debt Securities (Junior Subordinated
Securities) may be subordinate and subject in right of payment to the prior
payment in full of all Senior Debt of the Company, whether outstanding as of the
date of the Indenture or thereafter incurred. (Section 1401).
With respect to any Junior Subordinated Securities, no payment of principal
of (including redemption and sinking fund payments), premium, if any, or
interest on, the Junior Subordinated Securities may be made if any Senior Debt
is not paid when due, any applicable grace period with respect to such default
has ended and such default has not been cured or waived, or if the maturity of
any Senior Debt has been accelerated because of a default. (Section 1402). Upon
any distribution of assets of the Company to creditors upon any dissolution,
winding-up, liquidation or reorganization, whether voluntary or involuntary or
in bankruptcy, insolvency, receivership or other proceedings, all principal of,
and premium, if any, and interest due or to become due on, all Senior Debt must
be paid in full before the holders of the Junior Subordinated Securities are
entitled to receive or retain any payment. (Section 1403). The rights of the
holders of the Junior Subordinated Securities will be subrogated to the rights
of the holders of Senior Debt to receive payments or distributions applicable to
Senior Debt. (Section 1404).
The term "Senior Debt" shall mean the principal of, premium, if any,
interest on and any other payment due pursuant to any of the following, whether
outstanding at the date of execution of the Indenture or thereafter incurred,
created or assumed:
(a) all indebtedness of the Company evidenced by notes, debentures,
bonds, or other securities sold by the Company for money, excluding Junior
Subordinated Securities, but including all first mortgage bonds of the
Company outstanding from time to time;
(b) all indebtedness of others of the kinds described in the preceding
clause (a) assumed by or guaranteed in any manner by the Company; and
(c) all renewals, extensions, or refundings of indebtedness of the kinds
described in any of the preceding clauses (a) and (b);
unless, in the case of any particular indebtedness, renewal, extension or
refunding, the instrument creating or evidencing the same or the assumption or
guarantee of the same expressly provides that such indebtedness, renewal,
extension or refunding is not superior in right of payment to or is pari passu
with the Junior Subordinated Securities. (Section 101).
The Indenture does not limit the aggregate amount of Senior Debt that the
Company may issue. As of June 30, 1996, outstanding Senior Debt of the Company
aggregated approximately $798 million.
FORM, EXCHANGE, AND TRANSFER
The Debt Securities of each series will be issuable only in fully registered
form without coupons. (Section 302).
4
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At the option of the Holder, subject to the terms of the Indenture and the
limitations applicable to Global Debt Securities, Debt Securities of any series
will be exchangeable for other Debt Securities of the same series, of any
authorized denomination and of like tenor and aggregate principal amount.
(Section 305).
Subject to the terms of the Indenture and the limitations applicable to
Global Debt Securities, Debt Securities may be presented for exchange as
provided above or for registration of transfer (duly endorsed or with the form
of transfer endorsed thereon duly executed) at the office of the Security
Registrar or at the office of any transfer agent designated by the Company for
such purpose. No service charge will be made for any registration of transfer or
exchange of Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. Such transfer or exchange will be effected upon the Security
Registrar or such transfer agent, as the case may be, being satisfied with the
documents of title and identity of the person making the request. The Company
has appointed the Trustee as Security Registrar. Any transfer agent (in addition
to the Security Registrar) initially designated by the Company for any Debt
Securities will be named in the applicable Prospectus Supplement. (Section 305).
The Company may at any time designate additional transfer agents or rescind the
designation of any transfer agent or approve a change in the office through
which any transfer agent acts, except that the Company will be required to
maintain a transfer agent in each Place of Payment for the Debt Securities of
each series. (Section 1002).
If the Debt Securities of any series (or of any series and specified tenor)
are to be redeemed in part, the Company will not be required to (i) issue,
register the transfer of, or exchange any Debt Security of that series (or of
that series and specified tenor, as the case may be) during a period beginning
at the opening of business 15 days before the day of mailing of a notice of
redemption of any such Debt Security that may be selected for redemption and
ending at the close of business on the day of such mailing or (ii) register the
transfer of or exchange any Debt Security so selected for redemption, in whole
or in part, except the unredeemed portion of any such Debt Security being
redeemed in part. (Section 305).
GLOBAL DEBT SECURITIES
Some or all of the Debt Securities of any series may be issued as Global
Debt Securities. Each Global Debt Security will be registered in the name of a
Depositary or a nominee thereof identified in the applicable Prospectus
Supplement, will be deposited with such Depositary or nominee or a custodian
therefor and will bear a legend regarding the restrictions on exchanges and
registration of transfer thereof referred to below and any such other matters as
may be provided for pursuant to the Indenture.
Notwithstanding any provision of the Indenture or any Debt Security
described herein, no Global Debt Security may be exchanged in whole or in part
for Debt Securities registered, and no transfer of a Global Debt Security in
whole or in part may be registered, in the name of any Person other than the
Depositary for such Global Debt Security or any nominee of such Depositary
unless (i) the Depositary has notified the Company that it is unwilling or
unable to continue as Depositary for such Global Debt Security or has ceased to
be qualified to act as such as required by the Indenture, (ii) there shall have
occurred and be continuing an Event of Default with respect to such Global Debt
Security or (iii) there shall exist such circumstances, if any, in addition to
or in lieu of those described above as may be described in the applicable
Prospectus Supplement. All securities issued in exchange for a Global Debt
Security or any portion thereof will be registered in such names as the
Depositary may direct. (Sections 204 and 305).
5
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As long as the Depositary, or its nominee, is the registered Holder of a
Global Debt Security, the Depositary or such nominee, as the case may be, will
be considered the sole owner and Holder of such Global Debt Security for all
purposes under the Debt Securities and the Indenture. Except in the limited
circumstances referred to above, owners of beneficial interests in a Global Debt
Security will not be entitled to have such Global Debt Security or any portion
thereof registered in their names, will not receive or be entitled to receive
physical delivery of certificated Debt Securities in exchange therefor and will
not be considered to be the owners or Holders of such Global Debt Security or
any portion thereof for any purpose under the Debt Securities or the Indenture.
All payments of principal of and any premium and interest on a Global Debt
Security will be made to the Depositary or its nominee, as the case may be, as
the Holder thereof. The laws of some jurisdictions require that certain
purchasers of securities take physical delivery of such securities in definitive
form. These laws may impair the ability to transfer beneficial interests in a
Global Debt Security.
Ownership of beneficial interests in a Global Debt Security will be limited
to institutions that have accounts with the Depositary or its nominee
(participants) and to persons that may hold beneficial interests through
participants. In connection with the issuance of any Global Debt Security, the
Depositary will credit, on its book-entry registration and transfer system, the
respective portion of the principal amounts of the Global Debt Security to the
accounts of its participants. Ownership of beneficial interests in a Global Debt
Security will be shown only on, and the transfer of those ownership interests
will be effected only through, records maintained by the Depositary (with
respect to participants' interests) or any such participant (with respect to
interests of persons held by such participants on their behalf). Payments,
transfers, exchanges, and other matters relating to beneficial interests in a
Global Debt Security are subject to various policies and procedures adopted by
the Depositary from time to time. None of the Company, the Trustee or any agent
of the Company or the Trustee will have any responsibility or liability for any
aspect of the Depositary's or any participant's records relating to, or for
payments made on account of, beneficial interests in a Global Debt Security, or
for maintaining, supervising, or reviewing any records relating to such
beneficial interests.
Secondary trading in notes and debentures of corporate issuers is generally
settled in clearing-house or next-day funds. In contrast, beneficial interests
in a Global Debt Security, in some cases, will trade in the Depositary's
same-day funds settlement system in which secondary market trading activity in
those beneficial interests are required by the Depositary to settle in
immediately available funds. There is no assurance as to the effect, if any,
that settlement in immediately available funds would have on trading activity in
such beneficial interests. Also, settlement for purchases of beneficial
interests in a Global Debt Security upon the original issuance thereof may be
required to be made in immediately available funds.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of interest on a Debt Security on any Interest Payment Date will be made to the
Person in whose name such Debt Security (or one or more Predecessor Debt
Securities) is registered at the close of business on the Regular Record Date
for such interest. (Section 307).
Unless otherwise indicated in the applicable Prospectus Supplement,
principal of and any premium and interest on the Debt Securities of a particular
series will be payable at the office of such Paying Agent or Paying Agents as
the Company may designate for such purpose from time to time, except that at the
option of the Company payment of any interest may be made by check mailed to the
address of the Person entitled thereto as such address appears in the Security
Register. Unless otherwise indicated in the applicable Prospectus Supplement,
the corporate trust office of the Trustee in the City of Cincinnati will be
designated as the Company's sole Paying Agent for payments with respect to Debt
Securities of each series. Any other Paying Agents initially designated by the
Company for the Debt Securities of a particular series will be named in the
applicable Prospectus Supplement. The Company may at any time designate
additional Paying Agents or rescind the designation of any Paying Agent or
approve a change in the office through which any Paying Agent acts, except that
the Company will be required to maintain a Paying Agent in each Place of Payment
for the Debt Securities of a particular series. (Section 1002).
6
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All moneys paid by the Company to a Paying Agent for the payment of the
principal of or any premium or interest on any Debt Security which remain
unclaimed at the end of 18 months after such principal, premium or interest has
become due and payable will be repaid to the Company, and the Holder of such
Debt Security thereafter may look only to the Company for payment thereof.
(Section 1003).
CONSOLIDATION, MERGER, AND SALE OF ASSETS
The Indenture does not contain any covenant that restricts the Company's
ability to merge or consolidate with or into any other corporation, sell or
convey all or substantially all of its assets to any person, firm or corporation
or otherwise engage in restructuring transactions, provided that the successor
corporation assumes due and punctual payment of principal or premium, if any,
and interest on the Debt Securities. (Section 801).
EVENTS OF DEFAULT
Each of the following will constitute an Event of Default under the
Indenture with respect to Debt Securities of any series: (a) failure to pay
principal of or any premium on any Debt Security of that series when due; (b)
failure to pay any interest on any Debt Securities of that series when due,
continued for 30 days; (c) failure to deposit any sinking fund payment, when
due, in respect of any Debt Security of that series; (d) failure to perform any
other covenant of the Company in the Indenture (other than a covenant included
in the Indenture solely for the benefit of a series other than that series),
continued for 90 days after written notice has been given by the Trustee, or the
Holders of at least 35% in principal amount of the Outstanding Debt Securities
of that series, as provided in the Indenture; and (e) certain events of
bankruptcy, insolvency or reorganization. (Section 501).
If an Event of Default (other than an Event of Default described in clause
(e) above) with respect to the Debt Securities of any series at the time
Outstanding shall occur and be continuing, either the Trustee or the Holders of
at least 35% in aggregate principal amount of the Outstanding Debt Securities of
that series by notice as provided in the Indenture may declare the principal
amount of the Debt Securities of that series to be due and payable immediately.
If an Event of Default described in clause (e) above with respect to the Debt
Securities of any series at the time Outstanding shall occur, the principal
amount of all the Debt Securities of that series will automatically, and without
any action by the Trustee or any Holder, become immediately due and payable.
After any such acceleration, but before a judgment or decree based on
acceleration, the Holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of that series may, under certain circumstances,
rescind and annul such acceleration if all Events of Default, other than the
non-payment of accelerated principal, have been cured or waived as provided in
the Indenture. (Section 502). For information as to waiver of defaults, see
"Modification and Waiver."
Subject to the provisions of the Indenture relating to the duties of the
Trustee in case an Event of Default shall occur and be continuing, the Trustee
will be under no obligation to exercise any of its rights or powers under the
Indenture at the request or direction of any of the Holders, unless such Holders
shall have offered to the Trustee reasonably satisfactory indemnity. (Section
603). Subject to such provisions for the indemnification of the Trustee, the
Holders of a majority in principal amount of the Outstanding Debt Securities of
any series will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Debt Securities
of that series. (Section 512).
No Holder of a Debt Security of any series will have any right to institute
any proceeding with respect to the Indenture, or for the appointment of a
receiver or a trustee, or for any other remedy thereunder, unless (i) such
Holder has previously given to the Trustee written notice of a continuing Event
of Default with respect to the Debt Securities of that series, (ii) the Holders
of at least 35% in aggregate principal amount of the Outstanding Debt Securities
of that series have made written request, and such Holder or Holders have
offered reasonably satisfactory indemnity, to the Trustee to institute such
proceeding as trustee and (iii) the Trustee has failed to institute such
proceeding, and has not received from the Holders of a majority in aggregate
principal amount of the Outstanding Debt Securities of that series a direction
inconsistent with such request, within 60 days after such notice, request and
offer. (Section 507). However, such limitations do
7
<PAGE>
not apply to a suit instituted by a Holder of a Debt Security for the
enforcement of payment of the principal of or any premium or interest on such
Debt Security on or after the applicable due date specified in such Debt
Security. (Section 508).
The Company will be required to furnish to the Trustee annually a statement
by certain of its officers as to whether or not the Company, to their knowledge,
is in default in the performance or observance of any of the terms, provisions
and conditions of the Indenture and, if so, specifying all such known defaults.
(Section 1004).
MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by the Company and
the Trustee with the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Debt Securities of each series
affected by such modification or amendment; provided, however, that no such
modification or amendment may, without the consent of the Holder of each
Outstanding Debt Security affected thereby, (a) change the Stated Maturity of
the principal of, or any installment of principal of or interest on, any Debt
Security, (b) reduce the principal amount of, or any premium or interest on, any
Debt Security, (c) reduce the amount of principal of an Original Issue Discount
Security or any other Debt Security payable upon acceleration of the Maturity
thereof, (d) change the place or currency of payment of principal of, or any
premium or interest on, any Debt Security, (e) affect the applicability of the
subordination provisions to any Debt Security, (f) impair the right to institute
suit for the enforcement of any payment on or with respect to any Debt Security,
(g) reduce the percentage in principal amount of Outstanding Debt Securities of
any series, the consent of whose Holders is required for modification or
amendment of the Indenture, reduce the percentage in principal amount of
Outstanding Debt Securities of any series necessary for waiver of compliance
with certain provisions of the Indenture or for waiver of certain defaults or
modify such provisions with respect to modification and waiver. (Section 902).
The Holders of not less than a majority in aggregate principal amount of the
Outstanding Debt Securities of any series may waive compliance by the Company
with certain restrictive provisions of the Indenture. (Section 1007). The
Holders of a majority in principal amount of the Outstanding Debt Securities of
any series may waive any past default under the Indenture, except a default in
the payment of principal, premium, or interest and certain covenants and
provisions of the Indenture which cannot be amended without the consent of the
Holder of each Outstanding Debt Security of such series affected. (Section 513).
Except in certain limited circumstances, the Company will be entitled to set
any day as a record date for the purpose of determining the Holders of
Outstanding Debt Securities of any series entitled to give or take any
direction, notice, consent, waiver, or other action under the Indenture, in the
manner and subject to the limitations provided in the Indenture. In certain
limited circumstances, the Trustee will be entitled to set a record date for
action by Holders. If a record date is set for any action to be taken by Holders
of a particular series, such action may be taken only by persons who are Holders
of Outstanding Debt Securities of that series on the record date. To be
effective, such action must be taken by Holders of the requisite principal
amount of such Debt Securities within a specified period following the record
date. For any particular record date, this period will be 180 days or such other
shorter period as may be specified by the Company (or the Trustee, if it set the
record date), and may be shortened or lengthened (but not beyond 180 days) from
time to time. (Section 104).
DEFEASANCE AND COVENANT DEFEASANCE
If and to the extent indicated in the applicable Prospectus Supplement, the
Company may elect, at its option at any time, to have the provisions of Section
1302, relating to defeasance and discharge of indebtedness, or Section 1303,
relating to defeasance of certain restrictive covenants in the Indenture,
applied to the Debt Securities or to the Debt Securities of any series. (Section
1301).
DEFEASANCE AND DISCHARGE. The Indenture provides that, upon the Company's
exercise of its option (if any) to have Section 1302 applied to any Debt
Securities, the Company will be discharged from all its obligations with respect
to such Debt Securities (except for certain obligations to exchange or register
the transfer of Debt Securities, to replace stolen, lost or mutilated Debt
Securities, to maintain paying agencies
8
<PAGE>
and to hold moneys for payment in trust) upon the deposit in trust for the
benefit of the Holders of such Debt Securities of money or U.S. Government
Obligations, or both, which, through the payment of principal and interest in
respect thereof in accordance with their terms, will provide money in an amount
sufficient to pay the principal of and any premium and interest on such Debt
Securities on the respective Stated Maturities in accordance with the terms of
the Indenture and such Debt Securities. Such defeasance or discharge may occur
only if, among other things, the Company has delivered to the Trustee an Opinion
of Counsel to the effect that the Company has received from, or there has been
published by, the United States Internal Revenue Service a ruling, or there has
been a change in tax law, in either case to the effect that Holders of such Debt
Securities will not recognize gain or loss for federal income tax purposes as a
result of such deposit, defeasance, and discharge and will be subject to federal
income tax on the same amount, in the same manner and at the same times as would
have been the case if such deposit, defeasance and discharge were not to occur.
(Sections 1302 and 1304).
DEFEASANCE OF CERTAIN COVENANTS. The Indenture provides that, upon the
Company's exercise of its option (if any) to have Section 1303 applied to any
Debt Securities, the Company may omit to comply with certain restrictive
covenants that may be described in the applicable Prospectus Supplement, and the
occurrence of certain Events of Default, which are described above in clause (d)
(with respect to such restrictive covenants) under "Events of Default" and any
that may be described in the applicable Prospectus Supplement, will be deemed
not to be or result in an Event of Default, in each case with respect to such
Debt Securities. The Company, in order to exercise such option, will be required
to deposit, in trust for the benefit of the Holders of such Debt Securities,
money or U.S. Government Obligations, or both, which, through the payment of
principal and interest in respect thereof in accordance with their terms, will
provide money in an amount sufficient to pay the principal of and any premium
and interest on such Debt Securities on the respective Stated Maturities in
accordance with the terms of the Indenture and such Debt Securities. The Company
will also be required, among other things, to deliver to the Trustee an Opinion
of Counsel to the effect that Holders of such Debt Securities will not recognize
gain or loss for federal income tax purposes as a result of such deposit and
defeasance of certain obligations and will be subject to federal income tax on
the same amount, in the same manner and at the same times as would have been the
case if such deposit and defeasance were not to occur. In the event the Company
exercised this option with respect to any Debt Securities and such Debt
Securities were declared due and payable because of the occurrence of any Event
of Default, the amount of money and U.S. Government Obligations so deposited in
trust would be sufficient to pay amounts due on such Debt Securities at the time
of their respective Stated Maturities but may not be sufficient to pay amounts
due on such Debt Securities upon any acceleration resulting from such Event of
Default. In such case, the Company would remain liable for such payments.
(Sections 1303 and 1304).
TITLE
The Company, the Trustee, and any agent of the Company or the Trustee may
treat the Person in whose name a Debt Security is registered as the absolute
owner thereof (whether or not such Debt Security may be overdue) for the purpose
of making payment and for all other purposes. (Section 308).
GOVERNING LAW
The Indenture and the Debt Securities will be governed by, and construed in
accordance with, the law of the State of New York. (Section 112).
CONCERNING THE TRUSTEE
The Fifth Third Bank will be the Trustee under the Indenture. The Fifth
Third Bank also acts as the Trustee for certain unsecured debt securities of The
Cincinnati Gas & Electric Company (CG&E) and CG&E's wholly-owned subsidiary, The
Union Light Heat and Power Company, both affiliates of PSI, acts as the Trustee
for certain pollution control revenue bonds of CG&E, and acts as registrar for
the common stock of Cinergy and for the preferred stock of PSI and CG&E. The
Fifth Third Bank makes loans to, acts as depositary for, and, in the normal
course of business, also performs other services for PSI and CG&E.
9
<PAGE>
PLAN OF DISTRIBUTION
PSI may sell the Debt Securities in any of three ways: (i) through
underwriters or dealers; (ii) directly to a limited number of purchasers or to a
single purchaser; or (iii) through agents. The Prospectus Supplement with
respect to the Offered Securities sets forth the terms of the offering of the
Offered Securities, including the name or names of any underwriters, dealers or
agents, the purchase price of such Offered Securities and the proceeds to PSI
from such sale, any underwriting discounts and other items constituting
underwriters' compensation, any initial public offering price and any discounts
or concessions allowed or reallowed or paid to dealers. Any initial public
offering price and any discounts or concessions allowed or reallowed or paid to
dealers may be changed from time to time.
If underwriters are used in the sale, the Debt Securities will be acquired
by the underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. The
underwriters with respect to a particular Underwritten Offering of Offered
Securities will be named in the Prospectus Supplement relating to such offering
and, if an underwriting syndicate is used, the managing underwriter or
underwriters will be set forth on the cover page of such Prospectus Supplement.
In connection with the sale of Offered Securities, the underwriters may receive
compensation from PSI or from purchasers in the form of discounts, concessions
or commissions. The underwriters will be, and any dealers participating in the
distribution of the Offered Securities may be, deemed to be underwriters within
the meaning of the Securities Act of 1933. PSI has agreed to indemnify the
underwriters against certain civil liabilities, including liabilities under the
Securities Act of 1933. The underwriting agreement pursuant to which any Offered
Securities are to be sold will provide that the obligations of the underwriters
are subject to certain conditions precedent and that the underwriters will be
obligated to purchase all of the Offered Securities if any are purchased.
Offered Securities may be sold directly by PSI or through agents designated
by PSI from time to time. The Prospectus Supplement sets forth the name of any
agent involved in the offer or sale of the Offered Securities in respect of
which the Prospectus Supplement is delivered as well as any commissions payable
by PSI to such agent. Unless otherwise indicated in the Prospectus Supplement,
any such agent will be acting on a best efforts basis for the period of its
appointment.
If so indicated in the Prospectus Supplement, PSI will authorize agents,
underwriters or dealers to solicit offers by certain specified institutions to
purchase Offered Securities from PSI at the public offering price set forth in
the Prospectus Supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified date in the future. Such contracts will be
subject to those conditions set forth in the Prospectus Supplement, and the
Prospectus Supplement will set forth the commission payable for solicitation of
such contracts.
EXPERTS
The consolidated balance sheets of PSI as of December 31, 1995 and 1994 and
the related consolidated statements of income, changes in common stock equity
and cash flows for each of the three years in the period ended December 31,
1995, included in PSI's Annual Report on Form 10-K for the year ended December
31, 1995, have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their report with respect thereto, and are
incorporated herein by reference in reliance upon the authority of said firm as
experts in accounting and auditing in giving said report.
LEGAL OPINIONS
The legality of the Debt Securities will be passed upon for PSI by Bingham
Summers Welsh & Spilman, 2700 Market Tower, 10 West Market Street, Indianapolis,
Indiana 46204, and for the Underwriters by Davis Polk & Wardwell, 450 Lexington
Avenue, New York, New York 10017, who may rely as to matters of Indiana law on
the opinion of Bingham Summers Welsh & Spilman or other Indiana counsel.
10
<PAGE>
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
PSI estimates that expenses to be incurred and borne by it in connection
with the proposed sale of the Debt Securities to be registered are as follows:
<TABLE>
<CAPTION>
ITEM AMOUNT
- ---------------------------------------------------------------------------------- ----------
<S> <C>
Registration Fee.................................................................. $ 86,207
Rating Agencies Fees.............................................................. 68,025
Printing.......................................................................... 50,000
Trustee's Fees and Expenses....................................................... 4,000
Legal Fees........................................................................ 60,000
Accounting Fees................................................................... 35,000
Blue Sky and Legal Investment Expenses............................................ 10,000
Other............................................................................. 16,768
----------
Total......................................................................... $ 330,000
----------
----------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Indiana Business Corporation Law and the Amended Articles of
Consolidation of the Company provide for indemnification of the Company's
directors and officers under a variety of circumstances provided that each of
the following conditions is satisfied: (1) the individual's conduct was in good
faith; and (2) the individual reasonably believed: (A) in case of conduct in the
individual's official capacity with the corporation, that the individual's
conduct was in its best interests; and (B) in all other cases, that the
individual's conduct was at least not opposed to its best interests; and (3) in
case of any criminal proceeding, the individual either: (A) had reasonable cause
to believe the individual's conduct was lawful; or (B) had no reasonable cause
to believe the individual's conduct was unlawful. If each such condition is
satisfied, such indemnification may include liabilities under the Securities
Act. In addition, the Company has purchased insurance permitted by the laws of
Indiana on behalf of directors and officers which may cover liabilities under
the securities laws, except those arising under Section 16(b) of the Exchange
Act or involving fraud, criminal fines or penalties or deliberate dishonesty
with respect to a material matter which is the subject of litigation. Insofar as
indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers or persons controlling the Company, pursuant to
the terms of the Company's Articles of Incorporation, By-laws and insurance
policies, the Company has been informed that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities Act
and is therefore unenforceable.
The underwriters, dealers or agents, if any, will agree under certain
circumstances to indemnify the directors and certain officers of PSI against
certain civil liabilities, principally liabilities under the Securities Act of
1933.
ITEM 16. EXHIBITS.
The following exhibits are filed as part of the Registration Statement:
<TABLE>
<CAPTION>
EXHIBIT
NO.
- ---------
<S> <C>
1 --Form of Underwriting Agreement
4 --Form of Indenture between PSI and The Fifth Third Bank
5 --Opinion of Bingham Summers Welsh & Spilman as to legality of the Debt Securities
12 --Computation of ratio of earnings to fixed charges
23-A --Consent of Bingham Summers Welsh & Spilman (included in their opinion filed as Exhibit 5)
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO.
- ---------
23-B --Consent of Arthur Andersen LLP, Cincinnati, Ohio (see page II-5)
<S> <C>
24-A --Power of Attorney (filed herewith)
24-B --Certified copy of resolution of PSI's Board of Directors
25 --Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of The Fifth Third Bank
</TABLE>
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section
do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to section 13 or section
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
II-2
<PAGE>
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted against the
registrant by such director, officer or controlling person in connection with
the securities being registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Cincinnati, State of Ohio, on the 27th day of August,
1996.
PSI ENERGY, INC.
Registrant
By*JAMES E. ROGERS, Vice Chairman and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------ ----------------------------- ------------------
<S> <C> <C>
(i) Principal executive officer:
*JAMES E. ROGERS Vice Chairman and Chief
Executive Officer
(ii) Principal financial officer:
*J. WAYNE LEONARD Group Vice President and
Chief Financial Officer
(iii) Principal accounting officer:
*CHARLES J. WINGER Comptroller
August 27, 1996
(iv) Directors:
*JACKSON H. RANDOLPH Director
*JAMES E. ROGERS Director
*JAMES K. BAKER Director
*MICHAEL G. BROWNING Director
*JOHN A. HILLENBRAND II Director
*JOHN M. MUTZ Director
*VAN P. SMITH Director
*By /s/ WILLIAM L. SHEAFER
---------------------------------
William L. Sheafer, Attorney-in-fact
</TABLE>
II-4
<PAGE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated January 25, 1996,
included in PSI Energy, Inc.'s Annual Report on Form 10-K for the year ended
December 31, 1995, and to all references to our Firm included in this
Registration Statement.
ARTHUR ANDERSEN LLP
Cincinnati, Ohio
August 26, 1996.
-------------------
The consent of Counsel named as experts is included in their opinion being
filed as an Exhibit to the Registration Statement.
II-5
EXHIBIT 1
$000,000,000
PSI ENERGY, INC.
% DEBENTURES DUE
----- -------
UNDERWRITING AGREEMENT
, 1996
- ---------
<PAGE>
, 1996
----------
[Name of Managing Underwriter]
[Address]
Dear Sirs:
PSI Energy, Inc., an Indiana corporation (hereinafter
called the Company), proposes to issue and sell $000,000,000
principal amount of ______% Debentures due ______
(hereinafter called the Debentures), to be issued pursuant to
the provisions of an Indenture dated as of ________, 1996
between the Company and The Fifth Third Bank, Trustee
(hereinafter called the Indenture), as supplemented by the
Supplemental Indenture dated as of ________, 1996 between the
Company and the Trustee (hereinafter called the Supplemental
Indenture).
The Company has filed with the Securities and Exchange
Commission (hereinafter called the Commission) a registration
statement (File No. 33-________) including a prospectus
relating to debt securities of the Company, including the
Debentures, and has filed with the Commission (or will
promptly after the sale so file) a prospectus supplement
specifically relating to the Debentures pursuant to Rule 424
under the Securities Act of 1933. The term Registration
Statement means the registration statement as amended to the
date of this Agreement. The term Basic Prospectus means the
prospectus included in the Registration Statement. The term
Prospectus means the Basic Prospectus together with the
prospectus supplement specifically relating to the
Debentures, as filed with, or mailed for filing to, the
Commission pursuant to Rule 424. The term preliminary
prospectus means a preliminary prospectus supplement
specifically relating to the Debentures together with the
Basic Prospectus. As used herein, the terms "Registration
Statement", "Basic Prospectus", "Prospectus" and "preliminary
prospectus" shall include in each case the material, if any,
incorporated by reference therein.
I.
The Company hereby agrees to sell to each of the
undersigned Underwriters, and the Underwriters, upon the
basis of the representations and warranties herein contained,
but subject to the conditions hereinafter stated, agree to
purchase from the Company, each severally and not jointly,
the principal amount of Debentures set forth opposite their
names at a price of ____% of their principal amount - the
purchase price - and accrued interest from ________, 1996 to
the date of payment and delivery:
Name Principal Amount
---- ----------------
[Name of Managing Underwriter] $
---------------
[Other Underwriters]
---------------
---------------
Total $
---------------
II.
The Company is advised by you that the Underwriters
propose to make a public offering of their respective
portions of the Debentures as soon after the execution of
this Agreement as in your judgment is advisable. The Company
is further advised by you that the Debentures are to be
offered to the public at _____% of their principal amount -
the public offering price - and accrued interest, and to
certain dealers at a price which represents a concession of
____% of their principal amount under the public offering
price, and that any Underwriter may allow, and such dealers
may reallow, a concession, not in excess of ____% of their
principal amount, to certain other dealers.
III.
Payment for the Debentures shall be made by certified or
official bank check or checks payable to the order of the
Company in New York Clearing House or other next day funds
(or in Federal funds if requested and paid for by the
Company) at the office of Davis Polk & Wardwell, 450
Lexington Avenue, New York, N.Y. 10017, at 10:00 o'clock
A.M., New York Time, on ______________, 1996 or at such other
time on the same or such other date, not later than
_____________, 1996 as may be designated by you, upon
delivery to you for the respective accounts of the several
Underwriters of the Debentures registered in such names and
in such denominations as you shall request in writing not
less than two full business days prior to the date of
delivery. The time and date of such payment and delivery are
herein referred to as the Closing Date.
IV.
The obligations of the Company and the several
obligations of the Underwriters hereunder are subject to the
conditions that:
(a) The Registration Statement shall have become
effective under the Securities Act of 1933.
(b) No stop order suspending the effectiveness of
the Registration Statement shall be in effect and no
proceedings for such purpose shall be pending before, or
threatened by, the Commission.
(c) An appropriate order or orders of the Indiana
Utility Regulatory Commission necessary to permit the issue
and sale of the Debentures as contemplated hereby and
containing no material provision or condition which is
unacceptable to the Company or the Underwriters shall be in
effect and no proceedings to suspend the effectiveness of
such order or orders shall be pending or threatened.
The several obligations of the Underwriters hereunder
are subject to the following further conditions:
(d) There shall have been no material adverse
change(not in the ordinary course of business) in the
condition of the Company and its subsidiaries, taken as a
whole, from that set forth in or contemplated by the
Registration Statement and the Prospectus; and you shall have
received on the Closing Date a certificate, dated the Closing
Date and signed by an executive officer of the Company, to
the foregoing effect.
(e) Subsequent to the execution and delivery of
this Agreement and prior to the Closing Date, there shall not
have occurred any downgrading of, nor shall any notice have
been given of any review with a negative implication with
respect to, the rating accorded any of the Company's
securities by any of Standard & Poor's Corporation, Moody's
Investors Service, Inc. or Duff & Phelps, Inc. (or any of
their successors).
(f) You shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an
executive officer of the Company, to the effect set forth in
(b) and (c) of the first paragraph of this Article IV
(provided that such certificate may omit any reference as to
the extent to which provisions or conditions in the orders
referred to in (c) above are acceptable to the Underwriters).
The officer making such certificate may rely upon the best
of his knowledge as to proceedings pending or threatened.
(g) You shall have received on the Closing Date
the favorable opinion of Bingham, Summers, Welsh & Spilman,
counsel for the Company, dated the Closing Date, to the
effect that:
(i) the Company is a corporation duly
incorporated and existing in good standing under the laws of
the State of Indiana and, except for certain operating
permits for which the Company has made application but which
have either been denied or have not yet been granted in the
form requested, and except for certain notices of violations,
the Company has due corporate and governmental authority to
carry on the public utility businesses in which it is engaged
and to own and operate the properties in use in such
businesses;
(ii) the Company's subsidiaries, PSI Energy
Argentina, Inc., and South Construction Company, Inc.,, are
corporations duly incorporated and existing in good standing
under the laws of their respective states of incorporation
and, except as may be limited by state and federal
environmental laws and regulations, have due corporate and
governmental authority to carry on the businesses in which
they are engaged and to own and operate the properties in use
in such businesses;
(iii) the Company and its subsidiaries listed
in(ii) above are each duly qualified to transact business and
are in good standing in the jurisdictions in which the
conduct of their respective businesses or the ownership or
leasing of their respective properties requires such
qualification;
(iv) the Indenture and the Supplemental
Indenture have been duly authorized, executed and delivered
by the Company and are valid and binding instruments
enforceable in accordance with their terms, except as (A)
the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of
creditors' rights generally and (B) rights of acceleration
and the availability of equitable remedies may be limited by
equitable principles of general applicability; and the
Indenture has been duly qualified under the Trust Indenture
Act of 1939;
(v) the Debentures, when duly executed by the
Company, authenticated by the Trustee and delivered to and
paid for by the Underwriters pursuant to this Agreement, will
be valid and binding obligations of the Company in accordance
with their terms, except as (A) the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally and
(B) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general
applicability;
(vi) the Order of the Indiana Utility
Regulatory Commission authorizing the issuance and sale of
the Debentures is in effect on the Closing Date and no
further approval, authorization, consent or order of any
other commission or other governmental authority (other than
under state securities or Blue Sky laws, as to which such
counsel are not called upon to express an opinion) is
required for the issuance and sale of the Debentures;
(vii) such counsel does not know of any
contract required to be filed as an exhibit to the
Registration Statement, or incorporated therein by reference,
which has not been so filed or incorporated by reference;
(viii) the statements made in regard to such
counsel in the Prospectus are correct; such counsel have
prepared or reviewed the material which is described under
the caption "Statement Concerning Experts" as having been
prepared or reviewed by them; in their opinion the material
fairly describes the substantial effect of the matters of
law, legal rights, legal interpretations and conclusions
there described, and does not omit to state a material fact
required to be stated therein or necessary to make the
material not misleading; and the provisions of the Indenture
and the Debentures conform as to legal matters to the
description thereof and to the statements in regard thereto
contained in the Registration Statement and the Prospectus;
(ix) this Agreement has been duly
authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company in accordance with
its terms, except as rights to indemnity and contribution
hereunder may be limited under applicable laws;
(x) such counsel (A) is of the opinion that
each document incorporated by reference in the Prospectus
(except for operating statistics, financial statements and
other financial data therein as to which such counsel need
not express an opinion) complied when filed with the
Commission as to form in all material respects with the
requirements of the Securities Exchange Act of 1934, together
with the applicable rules and regulations of the Commission
thereunder, (B) is of the opinion that the Registration
Statement and the Prospectus and any supplements or
amendments thereto (except for operating statistics,
financial statements and other financial data therein as to
which such counsel need not express an opinion) comply as to
form in all material respects with the requirements of the
Securities Act of 1933 and the rules and regulations of the
Commission thereunder and (C) believes that (except for
operating statistics, financial statements and other
financial data therein as to which such counsel need not
express a belief) the Registration Statement and the
Prospectus at the date of this Agreement 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 not misleading and the Prospectus
(as amended or supplemented if applicable) on the Closing
Date does not contain an untrue statement of a material fact
or omit 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.
In regard to clause (ix) above, such counsel may state that
no opinion is expressed with respect to the effect of New
York law. In regard to clause (x) above, such counsel may
state that their opinion and belief is based upon their
participation in the preparation of the Registration
Statement and the Prospectus and any supplements and
amendments thereto and upon their review and discussion of
the contents thereof, but is without independent check or
verification except as specified, and that their opinion in
regard to documents filed under the Securities Exchange Act
of 1934, called for in clause (x)(A) above, is based upon the
opinion of counsel satisfactory to them.
(h) You shall have received on the Closing
Date an opinion of Davis Polk & Wardwell, counsel for the
Underwriters, dated the Closing Date, covering the matters in
(iv), (v), (ix) and clauses (B) and(C) of (x) of (g) above,
provided that with respect to clauses (B) and (C) of (x) of
(g) above, such counsel may state that their opinion and
belief is based upon their participation in the preparation
of the Registration Statement and the Prospectus and any
amendments and supplements thereto (other than documents
incorporated by reference), and upon their review and
discussion of the contents thereof (including documents
incorporated by reference), but is without independent check
or verification except as specified. In giving such opinion
such counsel may rely as to matters of Indiana law on the
opinion of Bingham, Summers, Welsh & Spilman or on the
opinions of other Indiana counsel.
(i) You shall have received on the Closing
Date a letter, dated the Closing Date, in form and substance
satisfactory to you, from Arthur Andersen LLP, independent
accountants, containing statements and information of the
type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and
certain financial information contained in or incorporated by
reference into the Registration Statement and the Prospectus.
V.
In further consideration of the agreements of the
Underwriters herein contained the Company covenants as
follows:
(a) To furnish without charge to you two
signed copies of the Registration Statement (including
exhibits and documents incorporated by reference), and to
each other Underwriter a copy of the Registration Statement
(without exhibits but including documents incorporated by
reference) and, during the period mentioned in paragraph (c)
below, as many copies of the Prospectus and any amendments
and supplements thereto as you may reasonably request. The
terms "supplement" and "amendment" or "amend" as used in this
Agreement shall include or refer to all documents
subsequently filed by the Company with the Commission
pursuant to the Securities Exchange Act of 1934 which are
deemed to be incorporated by reference in the Prospectus from
the date of filing such documents in accordance with Form
S-3.
(b) Before amending or supplementing the
Registration Statement or the Prospectus, to furnish to each
of you a copy of each such proposed amendment or supplement.
(c) If, during such period after the first
date of the public offering of the Debentures as in the
opinion of your counsel a prospectus covering the Debentures
is required by law to be delivered in connection with sales
by an Underwriter or dealer, any event shall occur as a
result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus is delivered
to a purchaser, not misleading, or if it shall be necessary
to amend or supplement the Prospectus to comply with law,
forthwith to prepare and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and addresses
you will furnish to the Company) to which Debentures may have
been sold by you on behalf of the Underwriters and to any
other dealers upon request, either amendments or supplements
to the Prospectus so that the statements in the Prospectus as
so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus will
comply with law.
(d) To endeavor to qualify the Debentures for
offer and sale under the securities or Blue Sky laws of such
jurisdictions as you shall reasonably request and to pay all
expenses (including fees and disbursements of counsel) in
connection with such qualification and in connection with the
determination of the eligibility of the Debentures for
investment under the laws of such jurisdictions as you may
designate.
(e) To make generally available to the
Company's security holders as soon as practicable an earnings
statement covering the twelve-month period beginning after
the date of this Agreement, which shall satisfy the
provisions of Section 11(a) of the Securities Act of 1933
(including Rule 158 thereunder).
(f) During the period beginning on the date
of this Agreement and terminating on the Closing Date not to
offer, sell, contract to sell or otherwise dispose of any
debt securities of the Company substantially similar to the
Debentures, without your prior written consent.
VI.
The Company represents and warrants to each Underwriter
that (i) each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any
amendment thereto or filed pursuant to Rule 424 under the
Securities Act of 1933, complied when so filed in all
material respects with the requirements of the Securities Act
of 1933 and the applicable rules and regulations thereunder,
(ii) each document incorporated by reference in the
Prospectus complied when filed (and each document
subsequently filed by the Company pursuant to the Securities
Exchange Act of 1934 and deemed incorporated by reference in
the Prospectus will, at the time of filing, comply) in all
material respects with the provisions of the Securities
Exchange Act of 1934, together with the applicable rules and
regulations of the Commission thereunder, and (iii)the
Registration Statement and Prospectus, as amended or
supplemented, will comply in all material respects with the
Securities Act of 1933 and the applicable rules and
regulations thereunder and will not contain any 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; except that these
representations and warranties do not apply to statements or
omissions in the Registration Statement or the Prospectus, or
any preliminary prospectus based upon information furnished
to the Company in writing by any Underwriter expressly for
use therein.
The Company 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
Securities Act of 1933 or Section 20 of the Securities
Exchange Act of 1934, from and against any and all losses,
claims, damages and liabilities (including the fees and
expenses of counsel in connection with any governmental or
regulatory investigation or proceeding) caused by any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement or Prospectus (if
used within the period set forth in paragraph (c) of Article
V hereof and as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged
omission to state therein a material fact required to be
stated therein or necessary to make the statements therein
not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission
based upon information furnished in writing to the Company by
any Underwriter expressly for use therein.
In case any action shall be brought against any
Underwriter or any person controlling such Underwriter, based
upon the Registration Statement or Prospectus or any
amendment or supplement thereto or any preliminary prospectus
and in respect of which indemnity may be sought against the
Company, such Underwriter shall promptly notify the Company
in writing, and the Company, upon the request of such
Underwriter, shall assume the defense thereof on behalf of
such Underwriter or controlling person, including the
employment of counsel and payment of all expenses. In any
such action, any Underwriter or any such controlling person
shall have the right to employ its own counsel but the fees
and expenses of such counsel shall be at the expense of such
Underwriter or such controlling person unless (i) the
employment of such counsel has been specifically authorized
in writing by the Company or (ii) the named parties to any
such action (including any impleaded parties) include both
such Underwriter or such controlling person and the Company
and such Underwriter or such controlling person shall have
been advised by such counsel that there maybe one or more
legal defenses available to it which are different from or
additional to those available to the Company(it being
understood, however, that the Company shall not, in
connection with any one such action or separate but
substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses
of more than one separate firm of attorneys(in addition to
one firm of local counsel) for all such Underwriters and
controlling persons, which firm shall be designated in
writing by you, and that such fees and expenses shall be
reimbursed as they are incurred). The Company shall not be
liable for indemnification (or contribution as provided
below) with respect to the settlement of any such action
effected without its written consent, but if settled with the
written consent of the Company or if there be a final
judgment for the plaintiff in any such action, the Company
agrees to indemnify and hold harmless any Underwriter and any
such controlling person from and against any loss or
liability by reason of such settlement or judgment (or to
make contribution as provided below).
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its
officers who sign the Registration Statement and any person
controlling the Company to the same extent as the foregoing
indemnity from the Company to each Underwriter, but only with
reference to information relating to such Underwriter
furnished in writing by such Underwriter expressly for use in
the Registration Statement, the Prospectus or any preliminary
prospectus. In case any action shall be brought against the
Company, any of its directors or any such officer or
controlling person based on the Registration Statement, the
Prospectus or any preliminary prospectus and in respect of
which indemnity may be sought against any Underwriter, the
Underwriter shall have the rights and duties given to the
Company, and the Company, its directors or any such officer
or controlling person shall have the rights and duties given
to the Underwriter, by the preceding paragraph of this
Article VI.
If the indemnification provided for in the second
paragraph of this Article VI is unavailable to any
Underwriter or other indemnified party in respect of any
losses, claims, damages or liabilities referred to therein,
then the Company, in lieu of indemnifying such indemnified
party thereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses,
claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other
from the offering of the Debentures or(ii) if the allocation
provided by clause (i) above 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 the Company on the one hand and of
the Underwriters on the other in connection with the
statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by
the Company on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company and of the
Underwriters shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a
material fact or the omission to state a material fact
relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent
such statement or omission.
If the indemnification provided for in this Article VI
is sought solely by the Company under the fourth paragraph
hereof and there is no claim for indemnification by any
Underwriter or any person controlling such Underwriter
arising out of the same misstatement or omission and if such
indemnification is unavailable to the Company in respect of
any losses, claims, damages or liabilities referred to in
such fourth paragraph, then the Underwriters, in lieu of
indemnifying the Company, shall contribute to the amount paid
or payable by the Company as a result of such losses, claims,
damages or liabilities in such proportion as is appropriate
to reflect the relative fault of the Company on the one hand
and of the Underwriters on the other in connection with the
statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the
Company on the one hand and of the Underwriters on the other
shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this
Article VI 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 in the
two immediately preceding paragraphs. The amount paid or
payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in such
paragraphs shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
Notwithstanding the provisions of this Article VI, no
Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the
Debentures 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 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
Securities Act of 1933) shall be entitled to contribution
from any person who is not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to
contribute pursuant to this Article VI are several in
proportion to their respective underwriting percentages (as
defined in the Agreement Among Underwriters relating to the
Debentures) and not joint.
The indemnity and contribution agreements contained in
this Article VI and the representations and warranties of the
Company set forth in this Agreement shall remain operative
and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by
or on behalf of any Underwriter or any person controlling any
Underwriter or by or on behalf of the Company, its directors
or officers or any person controlling the Company and (iii)
acceptance of and payment for any of the Debentures.
VII.
This Agreement shall be subject to termination in your
absolute discretion, by notice given to the Company, if(a)
prior to the Closing Date (i) trading in securities on the
New York Stock Exchange or the American Stock Exchange shall
have been suspended or materially limited, (ii)trading in any
securities of the Company shall have been suspended on any
national securities exchange in the United States or in any
over-the-counter market in the United States, (iii) a general
moratorium on banking activities in New York shall have been
declared by Federal or New York State authorities or (iv)
there shall have occurred any outbreak or escalation of
hostilities or any change in the financial markets or other
calamity or crisis, any of which is material and adverse and
(b) in the case of any of the events specified in clauses
(a)(i) through(iv), such event either singly or together
makes it, in your reasonable judgment, impracticable to
market the Debentures. Any termination of this Agreement
pursuant to this Article VII shall be without liability on
the part of the Company to the Underwriters, or the
Underwriters to the Company.
VIII.
This Agreement shall become effective upon signature.
If any one or more of the Underwriters shall fail or
refuse to purchase Debentures which it or they have agreed to
purchase hereunder, and the aggregate principal amount of
Debentures which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than
one-tenth of the aggregate principal amount of the
Debentures, the other Underwriters shall be obligated
severally in the proportions which the principal amount of
Debentures set forth opposite their names in Article I bears
to the aggregate principal amount of Debentures so set forth
opposite the names of all such non-defaulting Underwriters,
or in such other proportions as you may specify, to purchase
the Debentures which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase;
provided that in no event shall the principal amount of
Debentures which any Underwriter has agreed to purchase
pursuant to Article I hereof be increased pursuant to this
Article VIII by an amount in excess of one-ninth of such
principal amount of Debentures without the written consent of
such Underwriter. If any Underwriter or Underwriters shall
fail or refuse to purchase Debentures and the aggregate
principal amount of Debentures with respect to which such
default occurs is more than one-tenth of the aggregate
principal amount of Debentures and arrangements satisfactory
to you and the Company for the purchase of such Debentures
are not made within 36 hours after such default, this
Agreement will terminate without liability on the part of any
non-defaulting Underwriter or of the Company. In any such
case which does not result in such a termination, either you
or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under
this Agreement.
If this Agreement shall be terminated by the
Underwriters, or any of them, because of any failure or
refusal on the part of the Company to comply with the terms
or to fulfill any of the conditions of this Agreement or if
for any reason the Company shall be unable to perform its
obligations under this Agreement, the Company will reimburse
the Underwriters or such Underwriters as have so terminated
this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements
of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering contemplated
hereunder.
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
This Agreement may be signed in various counterparts
which together shall constitute one and the same instrument.
Very truly yours,
PSI ENERGY, INC.
By:
----------------------------
Title:
By:
---------------------------
Title:
Accepted, , 1996
-----------
[Name of Managing Underwriter]
on behalf of the Underwriters
named in Article I hereof
By
----------------------------
Title:
<PAGE>
EXHIBIT 4
PSI ENERGY, INC.
AND
THE FIFTH THIRD BANK, Trustee
-------------
INDENTURE
------------
Dated as of , 1996
<PAGE>
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
Section 310(a)(1). . . . . . . . . . . . . . . . . . .609
(a)(2). . . . . . . . . . . . . . . . . . . . 609
(a)(3). . . . . . . . . . . . . . .Not Applicable
(a)(4) . . . . . . . . . . . . . . Not Applicable
(b). . . . . . . . . . . . . . . . . . . . . .608
. . . . . . . . . . . . . . . . . . . . . . . 610
Section 311(a). . . . . . . . . . . . . . . . . . . . 613
(b). . . . . . . . . . . . . . . . . . . . . .613
Section 312(a). . . . . . . . . . . . . . . . . . . . 701
. . . . . . . . . . . . . . . . . . . . . . . 702
(b). . . . . . . . . . . . . . . . . . . . . .702
(c). . . . . . . . . . . . . . . . . . . . . .702
Section 313(a). . . . . . . . . . . . . . . . . . . . 703
(b). . . . . . . . . . . . . . . . . . . . . .703
(c). . . . . . . . . . . . . . . . . . . . . .703
(d). . . . . . . . . . . . . . . . . . . . . .703
Section 314(a). . . . . . . . . . . . . . . . . . . . 704
(a)(4). . . . . . . . . . . . . . . . . . . . 101
. . . . . . . . . . . . . . . . . . . . . . .1004
(b). . . . . . . . . . . . . . . . Not Applicable
(c)(1). . . . . . . . . . . . . . . . . . . . 102
(c)(2). . . . . . . . . . . . . . . . . . . . 102
(c)(3). . . . . . . . . . . . . . .Not Applicable
(d). . . . . . . . . . . . . . . . Not Applicable
(e). . . . . . . . . . . . . . . . . . . . . .102
Section 315(a). . . . . . . . . . . . . . . . . . . . 601
(b). . . . . . . . . . . . . . . . . . . . . .602
(c). . . . . . . . . . . . . . . . . . . . . .601
(d). . . . . . . . . . . . . . . . . . . . . .601
(e). . . . . . . . . . . . . . . . . . . . . .514
Section 316(a). . . . . . . . . . . . . . . . . . . . 101
(a)(1)(A). . . . . . . . . . . . . . . . . . .502
. . . . . . . . . . . . . . . . . . . . . . . 512
(a)(1)(B). . . . . . . . . . . . . . . . . . .513
(a)(2). . . . . . . . . . . . . . .Not Applicable
(b). . . . . . . . . . . . . . . . . . . . . .508
(c). . . . . . . . . . . . . . . . . . . . . .104
Section 317(a)(1). . . . . . . . . . . . . . . . . . .503
(a)(2). . . . . . . . . . . . . . . . . . . . 504
(b). . . . . . . . . . . . . . . . . . . . . 1003
Section 318(a). . . . . . . . . . . . . . . . . . . . 107
__________________
Note: This reconciliation and tie shall not, for any
purpose, be deemed to be a part of the Indenture.
<PAGE>
PSI ENERGY, INC.
Indenture
Dated as of , 1996
----------------------
TABLE OF CONTENTS
Parties. . . . . . . . . . . . . . . . . . . . . . . . . . .
Recitals of the Company . . . . . . . . . . . . . . . . . . .
ARTICLE ONE
Definitions and Other Provisions of General
Application
Section 101. Definitions:
Act . . . . . . . . . . . . . . . . . . . .
Affiliate; control . . . . . . . . . . . . .
Authenticating Agent. . . . . . . . . . . .
Board of Directors. . . . . . . . . . . . .
Board Resolution. . . . . . . . . . . . . .
Business Day. . . . . . . . . . . . . . . .
Commission. . . . . . . . . . . . . . . . .
Company. . . . . . . . . . . . . . . . . . .
Company Request; Company Order. . . . . . .
Corporate Trust Office. . . . . . . . . . .
corporation. . . . . . . . . . . . . . . . .
Covenant Defeasance. . . . . . . . . . . . .
Defaulted Interest. . . . . . . . . . . . .
Defeasance. . . . . . . . . . . . . . . . .
Depositary. . . . . . . . . . . . . . . . .
Event of Default. . . . . . . . . . . . . .
Exchange Act. . . . . . . . . . . . . . . .
Expiration Date. . . . . . . . . . . . . . .
Global Security. . . . . . . . . . . . . . .
Holder. . . . . . . . . . . . . . . . . . .
Indenture. . . . . . . . . . . . . . . . . .
interest. . . . . . . . . . . . . . . . . .
Interest Payment Date. . . . . . . . . . . .
Investment Company Act. . . . . . . . . . .
Junior Subordinated Securities. . . . . . .
Maturity. . . . . . . . . . . . . . . . . .
Notice of Default. . . . . . . . . . . . . .
Officers' Certificate. . . . . . . . . . . .
Opinion of Counsel. . . . . . . . . . . . .
Original Issue Discount Security. . . . . .
Outstanding. . . . . . . . . . . . . . . . .
Paying Agent. . . . . . . . . . . . . . . .
Person. . . . . . . . . . . . . . . . . . .
Place of Payment. . . . . . . . . . . . . .
Predecessor Security. . . . . . . . . . . .
Redemption Date. . . . . . . . . . . . . . .
Redemption Price. . . . . . . . . . . . . .
Regular Record Date. . . . . . . . . . . .
Responsible Officer. . . . . . . . . . . . .
Securities. . . . . . . . . . . . . . . . .
Securities Act. . . . . . . . . . . . . . .
Security Register;Security Registrar. . . .
Senior Debt. . . . . . . . . . . . . . . . .
Special Record Date. . . . . . . . . . . . .
Stated Maturity. . . . . . . . . . . . . . .
Subsidiary. . . . . . . . . . . . . . . . .
Trust Indenture Act. . . . . . . . . . . . .
Trustee. . . . . . . . . . . . . . . . . . .
U.S. Government Obligation. . . . . . . . .
Vice President. . . . . . . . . . . . . . .
Section 102. Compliance Certificates and Opinions. . . .
Section 103. Form of Documents Delivered
to Trustee. . . . . . . . . . . . . . . .
Section 104. Acts of Holders; Record Dates. . . . . . . .
Section 105. Notices, Etc., to Trustee
and Company. . . . . . . . . . . . . . .
Section 106. Notice to Holders; Waiver. . . . . . . . . .
Section 107. Conflict with Trust Indenture Act. . . . . .
Section 108. Effect of Headings and Table of
Contents. . . . . . . . . . . . . . . . .
Section 109. Successors and Assigns. . . . . . . . . . .
Section 110. Separability Clause. . . . . . . . . . . . .
Section 111. Benefits of Indenture. . . . . . . . . . . .
Section 112. Governing Law. . . . . . . . . . . . . . . .
Section 113. Legal Holidays. . . . . . . . . . . . . . .
Section 114. Certain Matters Relating to
Currencies. . . . . . . . . . . . . . . .
Section 115. Immunity of Incorporators, Stockholders,
Officers and Directors. . . . . . . . . .
Section 116. Counterparts. . . . . . . . . . . . . . . .
Section 117. Assignment to Subsidiary. . . . . . . . . .
ARTICLE TWO
Security Forms
Section 201. Forms Generally. . . . . . . . . . . . . . .
Section 202. Form of Face of Security. . . . . . . . . .
Section 203. Form of Reverse of Security. . . . . . . . .
Section 204. Form of Legend for Global Securities. . . .
Section 205. Form of Trustee's Certificate of
Authentication. . . . . . . . . . . . . .
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series. . . .
Section 302. Denominations . . . . . . . . . . . . . . .
Section 303. Execution, Authentication, Delivery
and Dating . . . . . . . . . . . . . . .
Section 304. Temporary Securities. . . . . . . . . . . .
Section 305. Registration, Registration of
Transfer and Exchange. . . . . . . . . .
Section 306. Mutilated, Destroyed, Lost and
Stolen Securities. . . . . . . . . . . .
Section 307. Payment of Interest; Interest
Rights Preserved. . . . . . . . . . . . .
Section 308. Persons Deemed Owners. . . . . . . . . . . .
Section 309. Cancellation. . . . . . . . . . . . . . . .
Section 310. Computation of Interest. . . . . . . . . . .
Section 311. CUSIP Numbers. . . . . . . . . . . . . . . .
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of
Indenture. . . . . . . . . . . . . . . .
Section 402. Application of Trust Money. . . . . . . . .
ARTICLE FIVE
Remedies
Section 501. Events of Default. . . . . . . . . . . . . .
Section 502. Acceleration of Maturity;
Rescission and Annulment. . . . . . . .
Section 503. Collection of Indebtedness and Suits
for Enforcement by Trustee. . . . . . .
Section 504. Trustee May File Proofs of Claim. . . . . .
Section 505. Trustee May Enforce Claims Without
Possession of Securities. . . . . . . .
Section 506. Application of Money Collected. . . . . . .
Section 507. Limitation on Suits. . . . . . . . . . . . .
Section 508. Unconditional Right of Holders to
Receive Principal, Premium and
Interest. . . . . . . . . . . . . . . .
Section 509. Restoration of Rights and Remedies. . . . .
Section 510. Rights and Remedies Cumulative. . . . . . .
Section 511. Delay or Omission Not Waiver. . . . . . . .
Section 512. Control by Holders. . . . . . . . . . . . .
Section 513. Waiver of Past Defaults. . . . . . . . . . .
Section 514. Undertaking for Costs. . . . . . . . . . . .
Section 515. Waiver of Usury, Stay or
Extension Laws. . . . . . . . . . . . . .
ARTICLE SIX
The Trustee
Section 601. Certain Duties and
Responsibilities. . . . . . . . . . .
Section 602. Notice of Defaults. . . . . . . . . . . . .
Section 603. Certain Rights of Trustee. . . . . . . . . .
Section 604. Not Responsible for Recitals or
Issuance of Securities. . . . . . . .
Section 605. May Hold Securities. . . . . . . . . . . . .
Section 606. Money Held in Trust. . . . . . . . . . . . .
Section 607. Compensation and Reimbursement. . . . . . .
Section 608. Conflicting Interests. . . . . . . . . . . .
Section 609. Corporate Trustee Required; Eligibility. . .
Section 610. Resignation and Removal; Appointment
of Successor. . . . . . . . . . . . . .
Section 611. Acceptance of Appointment by Successor. . .
Section 612. Merger, Conversion, Consolidation
or Succession to Business. . . . . . .
Section 613. Preferential Collection of Claims
Against Company. . . . . . . . . . . .
Section 614. Appointment of Authenticating Agent. . . . .
Section 615. Indemnification. . . . . . . . . . . . . . .
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee
Names and Addresses of Holders. . . . .
Section 702. Preservation of Information;
Communications to Holders. . . . . . . .
Section 703. Reports by Trustee. . . . . . . . . . . . .
Section 704. Reports by Company. . . . . . . . . . . . .
ARTICLE EIGHT
Consolidation, Merger and Sale
Section 801. Consolidation and Mergers Permitted. . . . .
Section 802. Rights and Duties of Successor Company . . .
Section 803. Opinion of Counsel. . . . . . . . . . . . .
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without
Consent of Holders. . . . . . . . . . .
Section 902. Supplemental Indentures With
Consent of Holders. . . . . . . . . . .
Section 903. Execution of Supplemental Indentures . . . .
Section 904. Effect of Supplemental Indentures. . . . . .
Section 905. Conformity with Trust Indenture Act . . . .
Section 906. Reference in Securities to
Supplemental Indentures. . . . . . . . .
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and
Interest. . . . . . . . . . . . . . . .
Section 1002. Maintenance of Office or Agency. . . . . . .
Section 1003. Money for Securities Payments to Be
Held in Trust. . . . . . . . . . . . . .
Section 1004. Statement by Officers as to
Default. . . . . . . . . . . . . . . . .
Section 1005. Maintenance of Properties. . . . . . . . . .
Section 1006. Payment of Taxes and Other Claims. . . . . .
Section 1007. Waiver of Certain Covenants. . . . . . . . .
Section 1008. Calculation of Original Issue Discount . . .
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article. . . . . . . . . .
Section 1102. Election to Redeem; Notice to Trustee. . . .
Section 1103. Selection by Trustee of Securities
to Be Redeemed. . . . . . . . . . . . .
Section 1104. Notice of Redemption. . . . . . . . . . . .
Section 1105. Deposit of Redemption Price. . . . . . . . .
Section 1106. Securities Payable on Redemption Date . . .
Section 1107. Securities Redeemed in Part. . . . . . . . .
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article. . . . . . . . . .
Section 1202. Satisfaction of Sinking Fund
Payments with Securities. . . . . . . .
Section 1203. Redemption of Securities for
Sinking Fund. . . . . . . . . . . . . .
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Company's Option to Effect Defeasance or
Covenant Defeasance. . . . . . . . . . .
Section 1302. Defeasance and Discharge. . . . . . . . . .
Section 1303. Covenant Defeasance. . . . . . . . . . . . .
Section 1304. Conditions to Defeasance or Covenant
Defeasance. . . . . . . . . . . . . . .
Section 1305. Deposited Money and U.S. Government
Obligations to Be Held in Trust;
Miscellaneous Provisions. . . . . . . .
Section 1306. Reinstatement. . . . . . . . . . . . . . . .
ARTICLE FOURTEEN
Junior Subordinated Securities
Section 1401. Certain Securities Subordinate to
Senior Debt. . . . . . . . . . . . . . .
Section 1402. Payment Over of Proceeds Upon
Default. . . . . . . . . . . . . . . . .
Section 1403. Payment Over of Proceeds Upon
Dissolution, Etc. . . . . . . . . . . .
Section 1404. Subrogation to Rights of Holders of
Senior Debt. . . . . . . . . . . . . . .
Section 1405. Trustee to Effectuate
Subordination. . . . . . . . . . . . . .
Section 1406. Notice to Trustee. . . . . . . . . . . . . .
Section 1407. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights . . . .
Section 1408. No Waiver of Subordination Provisions. . . .
Testimonium. . . . . . . . . . . . . . . . . . . . . . . . .
Signatures . . . . . . . . . . . . . . . . . . . . . . . . .
<PAGE>
INDENTURE, dated as of , 1996, between PSI Energy,
Inc., a corporation duly organized and existing under the laws of
the State of Indiana (herein called the "Company"), having its
principal office at 1000 East Main Street, Plainfield, Indiana
46168, and The Fifth Third Bank, an Ohio banking corporation, as
Trustee (herein called the "Trustee").
Recitals of the Company
The Company has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time
of its unsecured debentures, notes or other evidences of
indebtedness (herein called the "Securities"), to be issued in
one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been
done.
Now, Therefore, This Indenture Witnesseth:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually agreed,
subject to Article Fourteen, if applicable, for the equal and
proportionate benefit of the Holders of the Securities of each
series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well
as the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally
accepted accounting principles;
(4) unless the context otherwise requires, any reference to
an "Article" or a "Section" refers to an Article or a Section, as
the case may be, of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person. For
the purposes of this definition, "control" when used with respect
to any specified Person means the power to direct the management
and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 614 to act on behalf of the Trustee
to authenticate Securities of one or more series.
"Board of Directors" means the board of directors of the
Company, or any duly authorized committee of that board, or any
Person duly authorized to act on behalf of that board.
"Board Resolution" means a copy of a resolution or
resolutions certified by the Secretary or an Assistant Secretary
of the Company to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of
Payment, means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in that
Place of Payment are authorized or obligated by law or executive
order to close.
"Commission" means the Securities and Exchange Commission,
from time to time constituted, created under the Exchange Act,
or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body performing
such duties at such time.
"Company" means the Person named as the "Company" in the
first paragraph of this instrument until a successor Person shall
have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Company" shall mean such successor
Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company either by (i) its
Chairman of the Board, its Vice Chairman, its President or a Vice
President, and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the
Trustee, or (ii) any two Persons designated in a Board
Resolution, or in a Company Order previously delivered to the
Trustee signed by any two of the foregoing, and delivered to the
Trustee.
"Corporate Trust Office" means the office of the Trustee for
Securities of any series at which at any particular time its
corporate trust business shall be principally administered,
which office at the date of execution of this Indenture is
located at 38 Fountain Square Plaza, Cincinnati, Ohio.
"corporation" means a corporation, association, company,
joint-stock company or business trust.
"Covenant Defeasance" has the meaning specified in Section
1303.
"Defaulted Interest" has the meaning specified in Section
307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to Securities of any series
issuable in whole or in part in the form of one or more Global
Securities, a clearing agency registered under the Exchange Act
that is designated to act as Depositary for such Securities as
contemplated by Section 301.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and
any statute successor thereto, in each case as amended from time
to time.
"Expiration Date" has the meaning specified in Section 104.
"Global Security" means a Security that evidences all or
part of the Securities of any series and bears the legend set
forth in Section 204 (or such legend as may be specified as
contemplated by Section 301 for such Securities).
"Holder" means a Person in whose name a Security is
registered in the Security Register.
"Indenture" means this instrument as originally executed and
as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, including, for all purposes of this
instrument and any such supplemental indenture, the provisions of
the Trust Indenture Act that are deemed to be a part of and
govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms
of particular series of Securities established as contemplated by
Section 301.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after
Maturity, means interest payable after Maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an instalment of interest
on such Security.
"Investment Company Act" means the Investment Company Act of
1940 and any statute successor thereto, in each case as amended
from time to time.
"Junior Subordinated Securities" shall have the meaning
specified in Section 1401.
"Maturity", when used with respect to any Security, means
the date on which the principal of such Security or an instalment
of principal becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind
specified in Section 501(4).
"Officers' Certificate" means a certificate signed in the
same manner and by Persons as provided for in a Company Request
or a Company Order, 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.
"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 Securities, means,
as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee
or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such
Securities; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant
to this Indenture or provision therefor satisfactory to the
Trustee has been made;
(3) Securities as to which Defeasance has been effected
pursuant to Section 1302; and
(4) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company; provided,
however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made
or taken any request, demand, authorization, direction, notice,
consent, waiver or other action hereunder as of any date, (A) the
principal amount of an Original Issue Discount Security which
shall be deemed to be Outstanding shall be the amount of the
principal thereof which would be due and payable as of such date
upon acceleration of the Maturity thereof to such date pursuant
to Section 502, (B) if, as of such date, the principal amount
payable at the Stated Maturity of a Security is not determinable,
the principal amount of such Security which shall be deemed to be
Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a
Security denominated in one or more foreign currencies or
currency units which shall be deemed to be Outstanding shall be
the U.S. dollar equivalent, determined as of such date in the
manner provided as contemplated by Section 301, of the principal
amount of such Security (or, in the case of a Security described
in Clause (A) or (B) above, of the amount determined as provided
in such Clause), and (D) Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company
or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent, waiver or other
action, only Securities which the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and
that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other
obligor.
"Paying Agent" means, if not the Company, then any Person
authorized by the Company to pay the principal of or any premium
or interest on any Securities on behalf of the Company.
"Person" means any individual, corporation, partnership,
joint venture, trust, unincorporated organization or government
or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities
of any series, means the place or places where the principal of
and any premium and interest on the Securities of that series are
payable as specified as contemplated by Section 301.
"Predecessor Security" of any particular Security means
every previous Security evidencing all or a portion of the same
debt as that evidenced by such particular Security; and, for the
purposes of this definition, any Security authenticated and
delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security
to be redeemed, means the price at which it is to be redeemed
pursuant to this Indenture.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Securities of any series means the
date specified for that purpose as contemplated by Section 301.
"Responsible Officer", when used with respect to the
Trustee, means any vice president, any assistant vice-president,
any trust officer or assistant trust officer of the Trustee
assigned to the Trustee's corporate trust department and
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.
"Securities Act" means the Securities Act of 1933 and any
statute successor thereto, in each case as amended from time to
time.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Debt" of the Company means the principal of,
premium, if any, interest on and any other payment due pursuant
to any of the following, whether outstanding at the date of
execution of this Indenture or thereafter incurred, created or
assumed: (a) all indebtedness of the Company evidenced by notes,
debentures, bonds or other securities sold by the Company for
money, excluding Junior Subordinated Securities, but including
all first mortgage bonds of the Company outstanding from time to
time; (b) all indebtedness of others of the kinds described in
the preceding clause (a) assumed by or guaranteed in any manner
by the Company, including through an agreement to purchase,
contingent or otherwise; and (c) all renewals, extensions or
refundings of indebtedness of the kinds described in any of the
preceding clauses (a) and (b); unless, in the case of any
particular indebtedness, renewal, extension or refunding, the
instrument creating or evidencing the same or the assumption or
guarantee of the same expressly provides that such indebtedness,
renewal, extension or refunding is not superior in right of
payment to or is pari passu with the Junior Subordinated
Securities.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section
307.
"Stated Maturity", when used with respect to any Security or
any instalment of principal thereof or interest thereon, means
the date specified in such Security as the fixed date on which
the principal of such Security or such instalment of principal or
interest is due and payable.
"Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or
indirectly, by the Company or by one or more other Subsidiaries,
or by the Company and one or more other Subsidiaries. For the
purposes of this definition, "voting stock" means stock which
ordinarily has voting power for the election of directors,
whether at all times or only so long as no senior class of stock
has such voting power by reason of any contingency.
"Trust Indenture Act" means the Trust Indenture Act of 1939
as in force at the date as of which this instrument was executed,
except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this instrument until a successor Trustee
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Trustee" shall mean or include
each Person who is then a Trustee hereunder, and if at any time
there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee
with respect to Securities of that series.
"U.S. Government Obligation" has the meaning specified in
Section 1304.
"Vice President", when used with respect to the Company or
the Trustee, means any vice president, whether or not designated
by a number or a word or words added before or after the title
"vice president".
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture,
the Company shall furnish to the Trustee such certificates and
opinions as may be required under the Trust Indenture Act. Each
such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the
Company, or an Opinion of Counsel, if to be given by counsel, and
shall comply with the requirements of the Trust Indenture Act and
any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture shall
include,
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and
the definitions herein relating thereto;
(2) 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
(3) 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 of the Company may
be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless
such officer knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with
respect to the matters upon which his certificate or opinion is
based are erroneous. Any such certificate or opinion of counsel
may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect
to such factual matters is in the possession of the Company,
unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but
need not, be consolidated and form one instrument.
Section 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this
Indenture to be given, made or taken by Holders may be embodied
in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument
or instruments are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any
such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 601) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness
of such execution or by a certificate of a notary public or other
officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution
is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of
the Person executing the same, may also be proved in any other
manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security
Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall
bind every future Holder of the same Security and the Holder of
every Security issued upon the registration of transfer thereof
or in exchange therefor or in lieu thereof in respect of anything
done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such
action is made upon such Security.
The Company may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities of any
series entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given, made or
taken by Holders of Securities of such series, provided that the
Company may not set a record date for, and the provisions of this
paragraph shall not apply with respect to, the giving or making
of any notice, declaration, request or direction referred to in
the next paragraph. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities of the relevant
series on such record date, and no other Holders, shall be
entitled to take the relevant action, whether or not such Holders
remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to
the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Securities of such series on such
record date. Nothing in this paragraph shall be construed to
prevent the Company from setting a new record date for any action
for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and
of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the
requisite principal amount of Outstanding Securities of the
relevant series on the date such action is taken. Promptly after
any record date is set pursuant to this paragraph, the Company,
at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to
be given to the Trustee in writing and to each Holder of
Securities of the relevant series in the manner set forth in
Section 106.
The Trustee may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities of any
series entitled to join in the giving or making of (i) any Notice
of Default, (ii) any declaration of acceleration referred to in
Section 502, (iii) any request to institute proceedings referred
to in Section 507(2) or (iv) any direction referred to in Section
512, in each case with respect to Securities of such series. If
any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of such series on such record date, and no
other Holders, shall be entitled to join in such notice,
declaration, request or direction, whether or not such Holders
remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to
the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Securities of such series on such
record date. Nothing in this paragraph shall be construed to
prevent the Trustee from setting a new record date for any action
for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and
of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the
requisite principal amount of Outstanding Securities of the
relevant series on the date such action is taken. Promptly after
any record date is set pursuant to this paragraph, the Trustee,
at the Company's expense, shall cause notice of such record date,
the proposed action by Holders and the applicable Expiration Date
to be given to the Company in writing and to each Holder of
Securities of the relevant series in the manner set forth in
Section 106.
With respect to any record date set pursuant to this
Section, the party hereto which sets such record date may
designate any day as the "Expiration Date" and from time to time
may change the Expiration Date to any earlier or later day;
provided that no such change shall be effective unless notice of
the proposed new Expiration Date is given to the other party
hereto in writing, and to each Holder of Securities of the
relevant series in the manner set forth in Section 106, on or
prior to the existing Expiration Date. If an Expiration Date is
not designated with respect to any record date set pursuant to
this Section, the party hereto which set such record date shall
be deemed to have initially designated the 180th day after such
record date as the Expiration Date with respect thereto, subject
to its right to change the Expiration Date as provided in this
paragraph. Notwithstanding the foregoing, no Expiration Date
shall be later than the 180th day after the applicable record
date.
Without limiting the foregoing, a Holder entitled hereunder
to take any action hereunder with regard to any particular
Security may do so with regard to all or any part of the
principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal
amount.
Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished
to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished
or filed in writing to or with the Trustee at its Corporate Trust
Office, Attention: Corporate Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this
instrument or at any other address previously furnished in
writing to the Trustee by the Company.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed, to each
Holder affected by such event, at his address as it appears in
the Security Register, not later than the latest date (if any),
and not earlier than the earliest date (if any), prescribed for
the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other
Holders. Any notice when mailed to a Holder in the aforesaid
manner shall be conclusively deemed to have been received by such
Holder whether or not actually received by such Holder. Where
this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall
be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of regular mail service
or by reason of any other cause it shall be impracticable to give
such notice by mail, then such notification as shall be made with
the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
a provision of the Trust Indenture Act which is required under
such Act to be a part of and govern this Indenture, the latter
provision shall control. If any provision of this Indenture
modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall
be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the
construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the
Company shall bind its successors and assigns, whether so
expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions 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,
their successors hereunder, the Holders, and the holders of any
Senior Debt, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
Section 112. Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the law of the State of New York,
without regard to conflicts of laws principles thereof.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Security shall not be a Business Day at
any Place of Payment, then (notwithstanding any other provision
of this Indenture or of the Securities (other than a provision of
any Security which specifically states that such provision shall
apply in lieu of this Section)) payment of interest or principal
(and premium, if any) need not be made at such Place of Payment
on such date, but may be made on the next succeeding Business Day
at such Place of Payment with the same force and effect as if
made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity, and no interest shall accrue with respect to
such payment for the period from and after such Interest Payment
Date, Redemption Date or Stated Maturity, as the case may be, to
such next succeeding Business Day.
Section 114. Certain Matters Relating to Currencies.
Whenever any action or Act is to be taken hereunder by the
Holders of Securities denominated in different currencies or
currency units, then for purposes of determining the principal
amount of Securities held by such Holders, the aggregate
principal amount of the Securities denominated in a foreign
currency or currency unit shall be deemed to be that amount of
Dollars that could be obtained for such principal amount on the
basis of a spot exchange rate specified to the Trustee for such
series in an Officers' Certificate for exchanging such foreign
currency or currency unit into Dollars as of the date of the
taking of such action or Act by the Holders of the requisite
percentage in principal amount of the Securities.
The Trustee shall segregate moneys, funds and accounts held
by the Trustee in one currency or currency unit from any moneys,
funds or accounts held in any other currencies or currency units,
notwithstanding any provision herein that would otherwise permit
the Trustee to commingle such amounts.
Section 115. Immunity of Incorporators, Stockholders, Officers
and Directors.
No recourse shall be had for the payment of the principal of
(and premium, if any), or the interest, if any, on any Securities
of any series, or for any claim based thereon, or upon any
obligation, covenant or agreement of this Indenture, against any
incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or of any successor
corporation, either directly or indirectly through the Company or
any successor corporation, whether by virtue of any constitution,
statute or rule of law or by the enforcement of any assessment of
penalty or otherwise; it being expressly agreed and understood
that this Indenture and all the Securities of each series are
solely corporate obligations, and that no personal liability
whatever shall attach to, or is incurred by, any incorporator,
stockholder, officer or director, past, present or future, of the
Company or of any successor corporation, either directly or
indirectly through the Company or any successor corporation,
because of the incurring of the indebtedness hereby authorized or
under or by reason of any of the obligations, covenants or
agreements contained in this Indenture or in any of the
Securities of any series, or to be implied herefrom or therefrom;
and that all such personal liability is hereby expressly released
and waived as a condition of, and as part of the consideration
for, the execution of this Indenture and the issuance of the
Securities of each series.
Section 116. Counterparts.
This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same
instrument.
Section 117. Assignment to Affiliate.
The Company will have the right at all times to assign by
indenture supplemental hereto any of its rights or obligations
under the Indenture to a direct, indirect, or wholly owned
Affiliate of the Company; provided that, in the event of any such
assignment, the Company will remain liable for all such
obligations.
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
The Securities of each series shall be in substantially the
form set forth in this Article, or in such other form as shall be
established by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and
may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or
Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as
evidenced by their execution thereof. If the form of Securities
of any series is established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall
be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery
of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
Section 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and
the
regulations thereunder.]
PSI ENERGY, INC.
.................................................................
No. ......... $ ........
CUSIP NO. _______
PSI Energy, Inc., a corporation duly organized and existing
under the laws of the state of Indiana (herein called the
"Company", which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby
promises to pay to
.............................................., or registered
assigns, the principal sum of
...................................... Dollars on
........................................................ [if the
Security is to bear interest prior to Maturity, insert: , and
to pay interest thereon from ............. or from the most
recent Interest Payment Date to which interest has been paid or
duly provided for, ................... on ............ and
............ in each year, commencing ........., at the rate of
....% per annum, until the principal hereof is paid or made
available for payment. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date
for such interest, which shall be the ....... or ....... (whether
or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be
fixed by the Trustee, notice whereof shall be given to Holders of
Securities of this series not less than 10 days prior to such
Special Record Date, or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities
exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture]. [If the Security is not
to bear interest prior to Maturity, insert: The principal of
this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon
redemption or at Stated Maturity and in such case the overdue
principal and any overdue premium shall bear interest at the rate
of ....% per annum (to the extent that the payment of such
interest shall be legally enforceable), from the dates such
amounts are due until they are paid or made available for
payment. Interest on any overdue principal or premium shall be
payable on demand. Any such interest on overdue principal or
premium which is not paid on demand shall bear interest at the
rate of ......% per annum (to the extent that the payment of such
interest on interest shall be legally enforceable), from the date
of such demand until the amount so demanded is paid or made
available for payment. Interest on any overdue interest shall be
payable on demand.]
Payment of the principal of (and premium, if any) and [if
applicable, insert: any such] interest on this Security will be
made at the office or agency of the Company maintained for that
purpose in ............, in such coin or currency of the United
States of America as at the time of payment is legal tender for
payment of public and private debts [if applicable, insert:
;provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security
Register].
Any payment on this Security due on any day which is not a
Business Day in the City of New York need not be made on such
day, but may be made on the next succeeding Business Day with the
same force and effect as if made on the due date and no interest
shall accrue for the period from and after such date.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, [if subordinated,
insert: including, without limitation, provisions subordinating
the payment of the principal hereof and any premium and interest
hereon to the payment in full of all Senior Debt as defined in
the Indenture] which such further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by
manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
In Witness Whereof, the Company has caused this instrument
to be duly executed.
PSI ENERGY, INC.
By...............................................
Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"),
issued and to be issued in one or more series under an Indenture,
dated as of , 1996 (herein called the
"Indenture", which term shall have the meaning assigned to it in
such instrument), between the Company and The Fifth Third Bank,
as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), and reference is hereby
made to the Indenture for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the
Company, the Trustee and the Holders of the Securities and of the
terms upon which the Securities are, and are to be, authenticated
and delivered. This Security is one of the series designated on
the face hereof [if applicable, insert: , limited in aggregate
principal amount to $...........].
[If applicable, insert: The Securities of this series are
subject to redemption upon not less than 30 days' notice by mail,
[if applicable, insert: (1) on ........... in any year
commencing with the year ...... and ending with the year ......
through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)]
at any time [if applicable, insert: on or after ..........,
19..], as a whole or in part, at the election of the Company, at
the following Redemption Prices (expressed as percentages of the
principal amount): If redeemed [if applicable, insert: on or
before ..............., ...%, and if redeemed] during the
12-month period beginning ............. of the years indicated,
Redemption Redemption
Year Price Year Price
------ ---------- ---- ----------
and thereafter at a Redemption Price equal to .....% of the
principal amount, together in the case of any such redemption [if
applicable, insert: (whether through operation of the sinking
fund or otherwise)] with accrued interest to the Redemption Date,
but interest installments whose Stated Maturity is on or prior to
such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at
the close of business on the relevant Record Dates referred to on
the face hereof, all as provided in the Indenture.]
[If applicable, insert: The Securities of this series are
subject to redemption upon not less than 30 days' notice by mail,
(1) on ............ in any year commencing with the year .... and
ending with the year .... through operation of the sinking fund
for this series at the Redemption Prices for redemption through
operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below, and (2) at any
time [if applicable, insert: on or after ............], as a
whole or in part, at the election of the Company, at the
Redemption Prices for redemption otherwise than through operation
of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the
12-month period beginning ............ of the years indicated,
Redemption Price For
Redemption Price For Redemption Otherwise
Redemption Through Than Through
Operation of the Operation of the
Year Sinking Fund Sinking Fund
---- -------------------- ---------------------
and thereafter at a Redemption Price equal to .....% of the
principal amount, together in the case of any such redemption
(whether through operation of the sinking fund or otherwise) with
accrued interest to the Redemption Date, but interest
installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at
the close of business on the relevant Record Dates referred to on
the face hereof, all as provided in the Indenture.]
[If applicable, insert: Notwithstanding the foregoing, the
Company may not, prior to ............., redeem any Securities of
this series as contemplated by [if applicable, insert: Clause
(2) of] the preceding paragraph as a part of, or in anticipation
of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to the
Company (calculated in accordance with generally accepted
financial practice) of less than .....% per annum.]
[If applicable, insert: The sinking fund for this series
provides for the redemption on ............ in each year
beginning with the year ....... and ending with the year ......
of [if applicable, insert: not less than $..........
("mandatory sinking fund") and not more than] $.........
aggregate principal amount of Securities of this series.
Securities of this series acquired or redeemed by the Company
otherwise than through [if applicable, insert: mandatory]
sinking fund payments may be credited against subsequent [if
applicable, insert: mandatory] sinking fund payments otherwise
required to be made [if applicable, insert: , in the inverse
order in which they become due].]
[If the Security is subject to redemption of any kind, insert:
In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the
unredeemed portion hereof will be issued in the name of the
Holder hereof upon the
cancellation hereof.]
[If subordinated, insert: The indebtedness evidenced by the
Securities of this series is, to the extent and in the manner
provided in the Indenture, expressly subordinate and subject in
right of payment to the prior payment in full of all Senior Debt
of the Company (as defined in the Indenture) whether outstanding
at the date of the Indenture or thereafter incurred, and this
Security is issued subject to the provisions of the Indenture
with respect to such subordination. Each holder and owner of
this Security, by accepting the same, agrees to and shall be
bound by such provisions and authorizes the Trustee in his behalf
to take such action as may be necessary or appropriate to
effectuate the subordination so provided and appoints the Trustee
his attorney-in-fact for such purpose.]
[If applicable, insert: The Indenture contains provisions
for defeasance at any time of [the entire indebtedness of this
Security] [or] [certain restrictive covenants and Events of
Default with respect to this Security] [, in each case] upon
compliance with certain conditions set forth in the Indenture.]
[If the Security is not an Original Issue Discount Security,
insert: If an Event of Default with respect to Securities of
this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security,
insert: If an Event of Default with respect to Securities of
this series shall occur and be continuing, an amount of principal
of the Securities of this series may be declared due and payable
in the manner and with the effect provided in the Indenture. Such
amount shall be equal to insert: formula for determining the
amount. Upon payment (i) of the amount of principal so declared
due and payable and (ii) of interest on any overdue principal,
premium and interest (in each case to the extent that the payment
of such interest shall be legally enforceable), all of the
Company's obligations in respect of the payment of the principal
of and premium and interest, if any, on the Securities of this
series shall terminate.]
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the
rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under the
Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of each series to be affected.
The Indenture also contains provisions permitting the Holders of
a majority in principal amount of the Securities of each series
at the time Outstanding, on behalf of the Holders of all
Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made
upon this Security.
As provided in and subject to the provisions of the
Indenture, the Holder of this Security shall not have the right
to institute any proceeding with respect to the Indenture or for
the appointment of a receiver or trustee or for any other remedy
thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with
respect to the Securities of this series, the Holders of not less
than 35% in principal amount of the Securities of this series at
the time Outstanding shall have made written request to the
Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee indemnity reasonably
satisfactory to the Trustee, and the Trustee shall not have
received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to
institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not
apply to any suit instituted by the Holder of this Security for
the enforcement of any payment of principal hereof or any premium
or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of
this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and any premium and interest on this
Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is
registrable in the Security Register, upon surrender of this
Security for registration of transfer at the office or agency of
the Company in any place where the principal of and any premium
and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in
registered form without coupons in denominations of $....... and
any integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a
different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration
of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
Section 204. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301
for the Securities evidenced thereby, every Global Security
authenticated and delivered hereunder shall bear a legend in
substantially the following form (or such other form as a
securities exchange or Depositary may request or require):
This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name
of a Depositary or a nominee thereof. This Security may not be
exchanged in whole or in part for a Security registered, and no
transfer of this Security in whole or in part may be registered,
in the name of any Person other than such Depositary or a nominee
thereof, except in the limited circumstances described in the
Indenture.
Section 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
THE FIFTH THIRD BANK,
As Trustee
By.........................................
Authorized Signatory
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution and,
subject to Section 303, set forth, or determined in the manner
provided, in an Officers' Certificate, or established in one or
more indentures supplemental hereto, prior to the issuance of
Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any
other series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for,
or in lieu of, other Securities of the series pursuant to Section
304, 305, 306, 906 or 1107 and except for any Securities which,
pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name
that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date
for such interest;
(4) the date or dates on which the principal of any
Securities of the series is payable;
(5) the rate or rates at which any Securities of the series
shall bear interest, if any, the date or dates from which any
such interest shall accrue, the Interest Payment Dates on which
any such interest shall be payable, the manner of determination
of such Interest Payment Dates and the Regular Record Date for
any such interest payable on any Interest Payment Date;
(6) the right, if any, to extend the interest payment
periods and the duration of such extension;
(7) the place or places where the principal of and any
premium and interest on any Securities of the series shall be
payable;
(8) the period or periods within which, the price or prices
at which and the terms and conditions upon which any Securities
of the series may be redeemed, in whole or in part, at the option
of the Company and, if other than by a Board Resolution, the
manner in which any election by the Company to redeem the
Securities shall be evidenced;
(9) the obligation, if any, of the Company to redeem or
purchase any Securities of the series pursuant to any sinking
fund or analogous provisions or at the option of the Holder
thereof and the period or periods within which, the price or
prices at which and the terms and conditions upon which any
Securities of the series shall be redeemed or purchased, in whole
or in part, pursuant to such obligation;
(10) the denominations in which any Securities of the series
shall be issuable;
(11) if the amount of principal of or any premium or
interest on any Securities of the series may be determined with
reference to an index or pursuant to a formula, the manner in
which such amounts shall be determined;
(12) if other than the currency of the United States of
America, the currency, currencies or currency units in which the
principal of or any premium or interest on any Securities of the
series shall be payable and the manner of determining the
equivalent thereof in the currency of the United States of
America for any purpose, including for purposes of the definition
of "Outstanding" in Section 101;
(13) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the
Company or the Holder thereof, in one or more currencies or
currency units other than that or those in which such Securities
are stated to be payable, the currency, currencies or currency
units in which the principal of or any premium or interest on
such Securities as to which such election is made shall be
payable, the periods within which and the terms and conditions
upon which such election is to be made and the amount so payable
(or the manner in which such amount shall be determined);
(14) if other than the entire principal amount thereof, the
portion of the principal amount of any Securities of the series
which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 502;
(15) if the principal amount payable at the Stated Maturity
of any Securities of the series will not be determinable as of
any one or more dates prior to the Stated Maturity, the amount
which shall be deemed to be the principal amount of such
Securities as of any such date for any purpose thereunder or
hereunder, including the principal amount thereof which shall be
due and payable upon any Maturity other than the Stated Maturity
or which shall be deemed to be Outstanding as of any date prior
to the Stated Maturity (or, in any such case, the manner in which
such amount deemed to be the principal amount shall be
determined);
(16) if applicable, that the Securities of the series, in
whole or any specified part, shall be defeasible pursuant to
Section 1302 or Section 1303 or both such Sections;
(17) if applicable, that any Securities of the series shall
be issuable in whole or in part in the form of one or more Global
Securities and, in such case, the respective Depositaries for
such Global Securities, the form of any legend or legends which
shall be borne by any such Global Security in addition to or in
lieu of that set forth in Section 204 and any circumstances in
addition to or in lieu of those set forth in Clause (2) of the
last paragraph of Section 305 in which any such Global Security
may be exchanged in whole or in part for Securities registered,
and any transfer of such Global Security in whole or in part may
be registered, in the name or names of Persons other than the
Depositary for such Global Security or a nominee thereof;
(18) any addition to or change in the Events of Default
which applies to any Securities of the series and any change in
the right of the Trustee or the requisite Holders of such
Securities to declare the principal amount thereof due and
payable pursuant to Section 502;
(19) any addition to or change in the covenants set forth in
Article Ten which applies to Securities of the series;
(20) the applicability of, or any addition to or change in,
Article Fourteen with respect to the Securities of a series;
(21) any other terms of the series (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 date and principal amount and except as
may otherwise be provided in or pursuant to the Board Resolution
referred to above and (subject to Section 303) set forth, or
determined in the manner provided, in the Officers' Certificate
referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate
record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Officers' Certificate setting
forth the terms of the series.
Section 302. Denominations.
The Securities of each series shall be issuable only in
registered form without coupons and only in such denominations as
shall be specified as contemplated by Section 301. In the absence
of any such specified denomination with respect to the Securities
of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by
its Chairman of the Board, its Vice Chairman, its President, one
of its Vice Presidents, or its Treasurer. The signature of any of
these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior
to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of
any series executed by the Company to the Trustee for
authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee
in accordance with the Company Order shall authenticate and
deliver such Securities. If the form or terms of the Securities
of the series have been established by or pursuant to a Board
Resolution as permitted by Sections 201 and 301, in
authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been established by
or pursuant to Board Resolution as permitted by Section 201, that
such form has been established in conformity with the provisions
of this Indenture;
(2) if the terms of such Securities have been established
by or pursuant to Board Resolution as permitted by Section 301,
that such terms have been established in conformity with the
provisions of this Indenture; and
(3) that such Securities, when authenticated and delivered
by the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel,
will constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to
or affecting creditors' rights to general equity principles and
to such other matters as such counsel shall set forth therein.
If such form or terms have been so established, the Trustee shall
not be required to authenticate such Securities if the issue of
such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Securities
and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if all Securities of a series are not to be
originally issued at one time, it shall not be necessary to
deliver the Officers' Certificate otherwise required pursuant to
Section 301 or the Company Order and Opinion of Counsel otherwise
required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents
(with appropriate variations to reflect such future issuance) are
delivered at or prior to the authentication upon original
issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there
appears on such Security a certificate of authentication
substantially in the form provided for herein 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. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section
309, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder
and shall never be entitled to the benefits of this Indenture.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially
of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such
Securities may determine, as evidenced by their execution of such
Securities.
If temporary Securities of any series are issued, the
Company will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of
definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of
Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary
Securities of any series, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor one
or more definitive Securities of the same series, of any
authorized denominations and of like tenor and aggregate
principal amount. Until so exchanged, the temporary Securities of
any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series and
tenor.
Section 305. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in
such office and in any other office or agency of the Company in a
Place of Payment being herein sometimes collectively referred to
as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for
the registration of Securities and of transfers of Securities.
The Trustee is hereby appointed "Security Registrar" for the
purpose of registering Securities and transfers of Securities as
herein provided.
Upon surrender for registration of transfer of any Security
of a series at the office or agency of the Company in a Place of
Payment for that series, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities
of the same series, of any authorized denominations and of like
tenor and aggregate principal amount.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any
authorized denominations and of like tenor and aggregate
principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are
so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon
such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or
the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and
the Security Registrar duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any
transfer.
If the Securities of any series (or of any series and
specified tenor) are to be redeemed in part, the Company shall
not be required (A) to issue, register the transfer of or
exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning at
the opening of business 15 days before the day of the mailing of
a notice of redemption of any such Securities selected for
redemption under Section 1103 and ending at the close of business
on the day of such mailing, or (B) to register the transfer of or
exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being
redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall
apply only to Global Securities:
(1) Each Global Security authenticated under this Indenture
shall be registered in the name of the Depositary designated for
such Global Security or a nominee thereof and delivered to such
Depositary or nominee thereof or custodian therefor, and each
such Global Security shall constitute a single Security for all
purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture,
no Global Security may be exchanged in whole or in part for
Securities registered, and no transfer of a Global Security in
whole or in part may be registered, in the name of any Person
other than the Depositary for such Global Security or a nominee
thereof unless (A) such Depositary (i) has notified the Company
that it is unwilling or unable to continue as Depositary for such
Global Security or (ii) has ceased to be a clearing agency
registered under the Exchange Act, (B) there shall have occurred
and be continuing an Event of Default with respect to such Global
Security or (C) there shall exist such circumstances, if any, in
addition to or in lieu of the foregoing as have been specified
for this purpose as contemplated by Section 301.
(3) Subject to Clause (2) above, any exchange of a Global
Security for other Securities may be made in whole or in part,
and all Securities issued in exchange for a Global Security or
any portion thereof shall be registered in such names as the
Depositary for such Global Security shall direct.
(4) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a
Global Security or any portion thereof, whether pursuant to this
Section, Section 304, 306, 906 or 1107 or otherwise, shall be
authenticated and delivered in the form of, and shall be, a
Global Security, unless such Security is registered in the name
of a Person other than the Depositary for such Global Security or
a nominee thereof.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same series
and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee
(i) evidence to their satisfaction of the destruction, loss or
theft of any Security and (ii) such security or indemnity as may
be required by them to save each of them and any agent of either
of them harmless, then, in the absence of notice to the Company
or the Trustee that such Security has been acquired by a bona
fide purchaser, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security, a new Security of the same series and of like
tenor and principal amount and bearing a number not
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 of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall
constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security
shall be at any time enforceable by anyone, 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.
Except as otherwise provided as contemplated by Section 301
with respect to any series of Securities, interest on any
Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular
Record Date for such interest.
Any interest on any Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith
cease to be payable to the Holder on the relevant Regular Record
Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such
series (or their respective 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 and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior
to the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at
the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor to be given to each Holder of Securities of such series
in the manner set forth in Section 106, not less than 10 days
prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at
the close of business on such Special Record Date and shall no
longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest
on the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which such Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this
Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Security
is registered as the owner of such Security for the purpose of
receiving payment of principal of and any premium and (subject to
Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent (if not
the Company) or the Security Registrar shall have any
responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership
interests.
Section 309. Cancellation.
All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be
promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee
(or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder
which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. No
Securities shall be 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
held by the Trustee shall be disposed of as directed by a Company
Order; provided, however, that the Trustee shall not be required
to destroy such cancelled Securities.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, interest on the Securities of each
series shall be computed on the basis of a 360-day year of twelve
30-day months.
Section 311. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Trustee may
use "CUSIP" numbers in notices of redemption as a convenience to
Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice
of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of
such numbers.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect (except as to any surviving rights of registration
of transfer or exchange of Securities herein expressly provided
for), and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when (1) either (A) all
Securities theretofore authenticated and delivered (other than
(i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306 and
(ii) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 1003) have been delivered to
the Trustee for cancellation; or (B) all such Securities not
theretofore delivered to the Trustee for cancellation (i)
have become due and payable, or (ii) will become due and
payable at their Stated Maturity within one year, or (iii)
are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company, and the Company, in the case of (i), (ii) or
(iii) above, has deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose, money in an
amount sufficient to pay and discharge the entire indebtedness on
such Securities not theretofore delivered to the Trustee for
cancellation, for principal and any premium and interest to the
date of such deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or Redemption Date, as
the case may be;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied
with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under
Section 607, the obligations of the Company to any Authenticating
Agent under Section 614 and, if money shall have been deposited
with the Trustee pursuant to subclause (B) of Clause (1) of this
Section, the obligations of the Trustee under Section 402 and the
last paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
1003 and to Article Fourteen, if applicable, all money deposited
with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal and any premium and interest
for whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest upon any
Security of that series when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of or any
premium on any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment,
when and as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant
or warranty of the Company in this Indenture (other than a
covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with or
which has expressly been included in this Indenture solely for
the benefit of a series of Securities other than that series),
and continuance of such default or breach for a period of 90 days
after there has been given, by registered or certified mail, to
the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 35% in principal amount of the
Outstanding Securities of that series a written notice specifying
such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
Federal or state bankruptcy, insolvency, reorganization or other
similar law or (B) a decree or order adjudging the Company a
bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company under any applicable Federal or
state law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the
Company or of any substantial part of its property, or ordering
the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such
other decree or order unstayed and in effect for a period of 90
consecutive days; or
(6) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or insolvent, or
the consent by it to the entry of a decree or order for relief
in respect of the Company in an involuntary case or proceeding
under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the
filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or state
law, or the consent by it to the filing of such petition or to
the appointment of, or taking possession of the Company or of any
substantial part of its property by, a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar
official or the making by the Company of an assignment for the
benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the
taking of corporate action by the Company in furtherance of any
such action; or
(7) any other Event of Default established pursuant to
Section 301 with respect to Securities of that series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default
specified in Section 501(5) or 501(6)) with respect to Securities
of any series at the time Outstanding occurs and is continuing,
then in every such case the Trustee or the Holders of not less
than 35% in principal amount of the Outstanding Securities of
that series may declare the principal amount of all the
Securities of that series (or, if any Securities of that series
are Original Issue Discount Securities, such portion of the
principal amount of such Securities as may be specified by the
terms thereof) to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders),
and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable. If an Event of
Default specified in Section 501(5) or 501(6) with respect to
Securities of any series at the time Outstanding occurs, the
principal amount of all the Securities of that series (or, if any
Securities of that series are Original Issue Discount Securities,
such portion of the principal amount of such Securities as may be
specified by the terms thereof) shall automatically, and without
any declaration or other action on the part of the Trustee or any
Holder, become immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a
judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the
Holders of a majority in principal amount of the Outstanding
Securities of that series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its
consequences if,
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay (A) all overdue interest on all
Securities of that series, (B) the principal of (and premium, if
any, on) any Securities of that series which have become due
otherwise than by such declaration of acceleration and any
interest thereon at the rate or rates prescribed therefor in
such Securities, (C) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(2) all Events of Default with respect to Securities of
that series, other than the non-payment of the principal of
Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as
provided in Section 513.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then
due and payable on such Securities for principal and any premium
and interest and such further amount as shall be sufficient to
cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the
rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company
(or any other obligor upon the Securities), its property or its
creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have
claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to
collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and
any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the 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;
provided, however, that the Trustee may, on behalf of the
Holders, vote for the election of a trustee in bankruptcy or
similar official and be a member of a creditors' or other similar
committee.
Section 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without
the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be 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,
subject to Article Fourteen, if applicable, shall be applied in
the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of
principal or any premium or interest, upon presentation of the
Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under
Section 607; and
Second: To the payment of the amounts then due and unpaid
for principal of and any premium and interest on the Securities
in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities
for principal and any premium and interest, respectively
Third: The balance, if any, to the Company.
Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right
to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 35% in principal amount of
the Outstanding Securities of that 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
indemnity reasonably satisfactory to the Trustee against the
costs, expenses and liabilities to be incurred in compliance with
such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute
any such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the Outstanding
Securities of that series; it being understood and intended that
no one or more of such Holders shall have any right in any manner
whatever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other
of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right
under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all of such Holders.
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute
and unconditional, to receive payment of the principal of and any
premium and (subject to Section 307) interest on such Security on
the respective Stated Maturities expressed in such Security (or,
in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding
to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or
has been determined adversely to the Trustee or to such Holder,
then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be
restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had
been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in
the last paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section 512. Control by Holders.
The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right to
direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or 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, and
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount
of the Outstanding Securities of any series may on behalf of the
Holders of all the Securities of such series waive any past
default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of or any premium or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such series
affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have
been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair
any right consequent thereon.
Section 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, a court may require
any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party
litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that this Section shall not apply to any
suit instituted by the Trustee or to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than
10% in principal amount of Outstanding Securities (of any
series), or to any suit instituted by a Holder for the
enforcement of the payment of the principal of or any premium or
interest on any Security on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date).
Section 515. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any
usury, stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the
foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it. Whether or not therein expressly
so provided, every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to
the Trustee shall be subject to the provisions of this Section.
Section 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of
any series, the Trustee shall give the Holders of Securities of
such series notice of such default as and to the extent provided
by the Trust Indenture Act, unless such default shall have been
cured or waived; provided, however, that in the case of any
default of the character specified in Section 501(4) with respect
to Securities of such series, no such notice to Holders shall be
given until at least 30 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become,
an Event of Default with respect to Securities of such series.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party
or parties;
(2) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or
Company Order, and any resolution of the Board of Directors shall
be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel of its selection
and the advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise
any of the rightsor 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 reasonably satisfactory to the Trustee
against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit.
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
Section 604. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as
the statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes any 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 need not be
segregated from other funds except to the extent required by law.
The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing
with the Company.
Section 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such
compensation as shall be agreed to in writing between the Company
and the Trustee for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
The Trustee shall have a lien prior to the Securities as to
all property and funds held by it hereunder for any amount owing
it or any predecessor Trustee pursuant to this Section 607,
except with respect to funds held in trust for the benefit of the
Holders of particular Securities.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(5)
or Section 501(6), the expenses (including the reasonable charges
and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of administration
under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination
of this Indenture.
Section 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall
either eliminate such interest or resign, to the extent and in
the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Indenture. To the extent permitted
by such Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under this
Indenture with respect to Securities of more than one series.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee
hereunder with respect to the Securities of each series, which
may be Trustee hereunder for Securities of one or more other
series. Each Trustee shall be a Person that is eligible pursuant
to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law
or to the requirements of its supervising or examining authority,
then for the purposes of this Section and to the extent permitted
by the Trust Indenture Act, the combined capital and surplus of
such Person shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time the Trustee with respect to the
Securities of any series shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this
Article.
Section 610. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor
Trustee in accordance with the applicable requirements of Section
611.
The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof
to the Company. 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.
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 at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section
609 and shall fail to resign after written request therefor by
the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any such case, (A) the Company by a Board
Resolution may remove the Trustee with respect to all Securities,
or (B) subject to Section 514, any Holder who has been a bona
fide Holder of a Security for at least six months may, on behalf
of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor
Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee
for any cause, with respect to the Securities of one or more
series, the Company, by a Board Resolution, shall promptly
appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any
time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the
applicable requirements of Section 611. If, within one year after
such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee with respect to the 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. If no
successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and
accepted appointment in the manner required by Section 611, any
Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with respect
to the Securities of any series to all Holders of Securities of
such series in the manner provided in Section 106. Each notice
shall include the name of the successor Trustee with respect to
the Securities of such series and the address of its Corporate
Trust Office.
Section 611. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company
and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of
the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such
retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor
Trustee with respect to the Securities of one or more series
shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and
which (1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with respect
to all Securities, shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in
such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be
trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee
shall become effective to the extent 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.
Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts referred to in the first or second
preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
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.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee
shall be subject to the provisions of the Trust Indenture Act
regarding the collection of claims against the Company (or any
such other obligor). For purposes of Section 311(b) (4) and (6)
of the Trust Indenture Act, the following terms shall mean:
(a) "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days
after delivery of the goods or securities in currency or in
checks or other orders drawn upon banks or bankers and payable
upon demand; and
(b) "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company for the purpose of
financing the purchase, processing, manufacturing, shipment,
storage or sale of goods, wares or merchandise and which is
secured by documents evidencing title to, possession of, or a
lien upon, the goods, wares or merchandise or the receivables or
proceeds arising from the sale of the goods, wares or merchandise
previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation.
Section 614. Appointment of Authenticating Agent.
From time to time the Trustee may appoint one or more
Authenticating Agents with respect to one or more series of
Securities, which may include the Company or any of its
Affiliates, with power to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue
and upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, and Securities so
authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed
on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall
at all times be a corporation organized and doing business under
the laws of the United States of America, any State thereof or
the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of
not less than $50,000,000 and subject to supervision or
examination by Federal or State authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed
to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a
party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part
of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The
Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating
Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be
acceptable to the Company. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested
with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this
Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in
the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
THE FIFTH THIRD BANK
As Trustee
By......................................,
As Authenticating Agent
By.......................................
Authorized Officer
Section 615. Indemnification.
The Company agrees to indemnify the Trustee for, and hold it
harmless against, any loss, liability or expense incurred by it,
arising out of or in connection with the acceptance or
administration of this Indenture or the trusts hereunder or the
performance of its duties hereunder or under any related
document, including the reasonable costs and expenses of
defending itself against or investigating any claim or liability
with respect to the Securities, except to the extent that any
such loss, liability or expense was due to its own negligence or
bad faith. The Company need not pay for any settlement made
without its consent. The obligations of the Company to the
Trustee under this Section shall survive the satisfaction and
discharge of this Indenture and payment in full and/or retirement
of the 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:
(1) on each Regular Record Date, a list, in such form as
the Trustee may reasonably require, of the names and addresses of
the Holders of Securities of each series as of such Regular
Record Date, and (2) at such other times as the Trustee may
request in writing, within 30 days after the receipt by the
Company of any such request, a list of similar form and content
as of a date not more than 15 days prior to the time such list is
furnished; provided, however, that if and so long as the Trustee
shall be the Security Registrar, no such list need be furnished.
Section 702. Preservation of Information; Communications to
Holders.
The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders
contained in the most recent list as provided in Section 701 and
the names and addresses of Holders received by the Trustee in its
capacity as Security Registrar. The Trustee may destroy any list
furnished to it as provided in Section 701 upon receipt of a new
list so furnished.
The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the
Trustee, shall be as provided by the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be
held accountable by reason of any disclosure of information as to
names and addresses of Holders made pursuant to the Trust
Indenture Act.
Section 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as
may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto. If required by
Section 313(a) of the Trust Indenture Act, the Trustee shall,
within sixty days after each May 15 following the date of this
Indenture deliver to Holders a brief report, dated as of such May
15, which complies with the provisions of such Section 313(a).
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.
Section 704. Reports by Company.
The Company shall file with the Trustee and the Commission,
and transmit to Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant
to the Trust Indenture Act at the times and in the manner
provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act
shall be filed with the Trustee within 15 days after the same is
so required to be filed with the Commission.
ARTICLE EIGHT
Consolidation, Merger and Sale
Section 801. Consolidations and Mergers Permitted.
Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of the
Company with or into any other corporation or corporations
(whether or not affiliated with the Company), or successive
consolidations or mergers in which the Company or its successor
or successors shall be a party or parties, or shall prevent any
sale, conveyance, transfer or other disposition of the property
of the Company or its successor or successors as an entirety, or
substantially as an entirety, to any other corporation (whether
or not affiliated with the Company or its successor or
successors) authorized to acquire and operate the same; provided,
however, the Company hereby covenants and agrees that, upon any
such consolidation, merger, sale, conveyance, transfer or other
disposition, the due and punctual payment of the principal of
(premium, if any) and interest on all of the Securities of all
series in accordance with the terms of each series, according to
their tenor, and the due and punctual performance and observance
of all the covenants and conditions of this Indenture with
respect to each series or established with respect to such series
to be kept or performed by the Company, shall be expressly
assumed, by supplemental indenture (which shall conform to the
provisions of the Trust Indenture Act as then in effect)
satisfactory in form to the Trustee executed and delivered to the
Trustee by the entity formed by such consolidation, or into which
the Company shall have been merged, or by the entity which shall
have acquired such property.
Section 802. Rights and Duties of Successor Company.
In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition and upon the assumption by the
successor corporation, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee,
of the due and punctual payment of the principal of, premium, if
any, and interest on all of the Securities of all series
outstanding and the due and punctual performance of all of the
covenants and conditions of this Indenture or established with
respect to each series of the Securities to be performed by the
Company with respect to each series, such successor corporation
shall succeed to and be substituted for the Company, with the
same effect as if it had been named herein as the party of the
first part, and thereupon the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture
and the Securities. Such successor corporation thereupon may
cause to be signed, and may issue either in its own name or in
the name of the Company or any other predecessor obligor on the
Securities, any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Company and
delivered to the Trustee; and, upon the order of such successor
company, instead of the Company, and subject to all the terms,
conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver any Securities which
previously shall have been signed and delivered by the officers
of the predecessor Company to the Trustee for authentication, and
any Securities which such successor corporation thereafter shall
cause to be signed and delivered to the Trustee for that purpose.
All the Securities so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Securities had been issued
at the date of the execution hereof.
Nothing contained in this Indenture or in any of the
Securities shall prevent the Company from merging into itself or
acquiring by purchase or otherwise all or any part of the
property of any other corporation (whether or not affiliated
with the Company).
Section 803. Opinion of Counsel.
The Trustee may receive an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, conveyance,
transfer or other disposition, and any such assumption, comply
with the provisions of this Article.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any
of the following purposes:
(1) to evidence the succession of another Person to the
Company to the assumption by any such successor of the covenants
of the Company herein and in the Securities pursuant to Article
Eight or Section 117; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities (and if
such covenants are to be for the benefit of less than all series
of Securities, stating that such covenants are expressly being
included solely for the benefit of such series) or to surrender
any right or power herein conferred upon the Company; provided,
however, that in respect of any such additional covenant, such
supplemental indenture may provide for a particular period of
grace after default (which period may be shorter or longer than
that allowed in the case of other defaults) or may provide for an
immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default or may limit the right
of the Holders of a majority in aggregate principal amount of the
Securities of such series to waive such default;
(3) to add any additional Events of Default for the
benefit of the Holders of all or any series of Securities (and if
such additional Events of Default are to be for the benefit of
less than all series of Securities, stating that such additional
Events of Default are expressly being included solely for the
benefit of such series); or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the issuance of Securities in bearer form, registrable
or not registrable as to principal, and with or without interest
coupons, or to permit or facilitate the issuance of Securities in
uncertificated form; or
(5) to add to, change or eliminate any of the provisions
of this Indenture in respect of one or more series of Securities,
provided that any such addition, change or elimination (A) shall
neither (i) apply to any Security of any series created prior to
the execution of such supplemental indenture and entitled to the
benefit of such provision nor (ii) modify the rights of the
Holder of any such Security with respect to such provision or (B)
shall become effective only when there is no such Security
Outstanding; or
(6) to 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
one or more successor Trustees, pursuant to the requirements of
Section 611; or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any
other provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture,
provided that such action pursuant to this Clause (9) shall not
adversely affect the interests of the Holders of Securities of
any series in any material respect.
The Trustee is hereby authorized to join with the Company in
the execution of any such supplemental indenture, and to make any
further appropriate agreements and stipulations which may be
therein contained.
Any supplemental indenture authorized by the provisions of
this Section may be executed by the Company and the Trustee
without the consent of the holders of any of the Securities at
the time outstanding, notwithstanding any of the provisions of
Section 902.
Section 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority
in principal amount of the Outstanding Securities of each series
affected by such supplemental indenture, by Act of said Holders
delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Securities of such series
under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder
of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or
any 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
reduce the amount of the principal of an Original Issue Discount
Security or any other Security which would be due and payable
upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, or change any Place of Payment where, or
the coin or currency in which, any Security or any premium or
interest thereon is payable, affect the applicability of Article
Fourteen to any Security, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section,
Section 513 or Section 1007, except to increase any such
percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby; provided,
however, that this clause shall not be deemed to require the
consent of any Holder with respect to changes in the references
to "the Trustee" and concomitant changes in this Section and
Section 1007, or the deletion of this proviso, in accordance with
the requirements of Sections 611 and 901(8).
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly
been included solely for the benefit of one or more particular
series of Securities, or which modifies the rights of the Holders
of Securities of such series with respect to such covenant or
other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series;
provided that no such supplemental indenture shall modify any
provision of this Indenture so as to adversely affect the rights
of any holder of outstanding Senior Debt to the benefits of
Article Fourteen.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture,
the Trustee shall be entitled to receive, and (subject to Section
601) shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may,
but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
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. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay the
principal of and any premium and interest on the Securities of
that series in accordance with the terms of the Securities and
this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any
series of Securities an office or agency where Securities of that
series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the
Company in respect of the Securities of that series and this
Indenture may be served. The Company will give prompt written
notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more
series may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities of
any series for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other
office or agency.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, it will, on or before
each due date of the principal of or any premium or interest on
any of the Securities of that series, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient
to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the
Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents
for any series of Securities, it will, on or before each due date
of the principal of or any premium or interest on any Securities
of that series, deposit with a Paying Agent a sum sufficient to
pay such amount, such sum to be held as provided by the Trust
Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with
the Trustee, subject to the provisions of this Section, that such
Paying Agent will (1) comply with the provisions of the Trust
Indenture Act applicable to it as a Paying Agent and (2) during
the continuance of any default by the Company (or any other
obligor upon the Securities of that series) in the making of any
payment in respect of the Securities of that series, upon the
written request of the Trustee, forthwith pay to the Trustee all
sums held in trust by such Paying Agent for payment in respect of
the Securities of that series.
The Company may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such
Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the
principal of or any premium or interest on any Security of any
series and remaining unclaimed for 18 months after such
principal, premium or interest has become due and payable shall
be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the Holder
of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any
such repayment, may at the expense of the Company cause to be
published once, in a newspaper published in the English language,
customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York,
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.
Section 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company ending after the
date hereof, an Officers' Certificate, stating whether or not to
the best knowledge of the signers thereof the Company is in
default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to
any period of grace or requirement of notice provided hereunder)
and, if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have
knowledge.
Section 1005. Maintenance of Properties.
The Company will cause all properties used or useful in the
conduct of its business or the business of any Subsidiary to be
maintained and kept in good condition, repair and working order
and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments
and improvements thereof, all as in the judgment of the Company
may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all
times; provided, however, that nothing in this Section shall
prevent the Company from discontinuing the operation or
maintenance of any of such properties if such discontinuance is,
in the judgment of the Company, desirable in the conduct of its
business or the business of any Subsidiary.
Section 1006. 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
taxes, assessments and governmental charges levied or imposed
upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary, and (2) all lawful
claims for labor, materials and supplies which, if unpaid, might
by law become a lien upon the property of the Company or any
Subsidiary; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged
any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by
appropriate proceedings.
Section 1007. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301
for Securities of such series, the Company may, with respect to
the Securities of any series, omit in any particular instance to
comply with any term, provision or condition set forth in any
covenant provided pursuant to Section 301(18), 901(2) or 901(7)
for the benefit of the Holders of such series if before the time
for such compliance the Holders of at least a majority in
principal amount of the Outstanding Securities of such series
shall, by Act of such Holders, either waive such compliance in
such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or
affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in
full force and effect.
Section 1008. Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end
of each calendar year a written notice specifying the amount of
original issue discount (including daily rates and accrual
periods) accrued on Outstanding Securities as of the end of such
year.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their
terms and (except as otherwise specified as contemplated by
Section 301 for such Securities) in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall
be evidenced by a Board Resolution or in another manner specified
as contemplated by Section 301 for such Securities. In case of
any redemption at the election of the Company 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 of such series to be redeemed. In
the case of any redemption of Securities prior to the expiration
of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be
redeemed (unless all the Securities of such series and of a
specified tenor are to be redeemed or unless such redemption
affects only a single Security), the particular Securities to be
redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities
of such series not previously called for redemption, by such
method as the Trustee shall deem fair and appropriate and which
may provide for the selection for redemption of a portion of the
principal amount of any Security of such series, provided that
the unredeemed portion of the principal amount of any Security
shall be in an authorized denomination (which shall not be less
than the minimum authorized denomination) for such Security. If
less than all the Securities of such series are to be redeemed
(unless such redemption affects only a single Security), the
particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities of such series not previously called
for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption as aforesaid and, in case
of any Securities selected for partial redemption as aforesaid,
the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not
apply with respect to any redemption affecting only a single
Security, whether such Security is to be redeemed in whole or in
part. In the case of any such redemption in part, the unredeemed
portion of the principal amount of the Security shall be in an
authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed
or to be redeemed only in part, to the portion of the principal
amount of such Securities which has been or is to be redeemed.
Section 1104. Notice of the Redemption.
Notice of redemption shall be given by mail not less than 30
nor more than 60 days prior to the Redemption Date, to each
Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall identify the Securities to
be redeemed and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any
series consisting of more than a single Security are to be
redeemed, the identification (and, in the case of partial
redemption of any such Securities, the principal amounts) of the
particular Securities to be redeemed and, if less than all the
Outstanding Securities of any series consisting of a single
Security are to be redeemed, the principal amount of the
particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price
will become due and payable upon each such Security to be
redeemed and, if applicable, that interest thereon will cease to
accrue on and after said date,
(5) the place or places where each such Security is to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such
is the case.
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 and shall be irrevocable.
The notice if mailed in the manner herein provided shall be
conclusively presumed to have been given, whether or not the
Holder receives such notice. In any case, failure to give such
notice by mail or any defect in the notice to the Holder of any
Security designated for redemption as a whole or in part shall
not affect the validity of the proceedings for the redemption of
any other Security.
Section 1105. Deposit of Redemption Price.
On or before any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money sufficient to pay
the Redemption Price of, and (except if the Redemption Date shall
be an Interest Payment Date) accrued interest on, all the
Securities which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified,
and from and after such date (unless the Company shall default in
the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided,
however, that, unless otherwise specified as contemplated by
Section 301, installments of interest whose Stated Maturity is on
or prior to the Redemption Date will be payable to the Holders of
such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant
Record Dates according to their terms and the provisions of
Section 307.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company
or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of
the same series and of like tenor, of any authorized denomination
as requested by such Holder, in aggregate principal amount equal
to and in exchange for the unredeemed portion of the principal of
the Security so surrendered; provided, however, that a Depositary
need not surrender a Global Security for a partial redemption and
may be authorized to make a notation on such Global Security of
such partial redemption. In the case of a partial redemption of
a Global Security, the Depositary, and in turn, the participants
in the Depositary, shall have the responsibility to select any
Securities to be redeemed by random lot.
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 any series
except as otherwise specified as contemplated by Section 301 for
such Securities.
The minimum amount of any sinking fund payment provided for
by the terms of any Securities is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of
such minimum amount provided for by the terms of such Securities
is herein referred to as an "optional sinking fund payment". If
provided for by the terms of any Securities, the cash amount of
any sinking fund payment may be subject to reduction as provided
in Section 1202. Each sinking fund payment shall be applied to
the redemption of Securities as provided for by the terms of such
Securities.
Section 1202. Satisfaction of Sinking Fund Payments with
Securities.
The Company (1) may deliver Outstanding Securities of a
series (other than any previously called for redemption) and (2)
may apply as a credit Securities of a series which have been
redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of
any sinking fund payment with respect to any Securities of such
series required to be made pursuant to the terms of such
Securities as and to the extent provided for by the terms of such
Securities; provided that the Securities to be so credited have
not been previously so credited. The Securities to be so credited
shall be received and credited for such purpose by the Trustee at
the Redemption Price, as specified in the Securities so to be
redeemed, for redemption through operation of the sinking fund
and the amount of such sinking fund payment shall be reduced
accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment
date for any Securities, the Company will deliver to the Trustee
an Officers' Certificate specifying the amount of the next
ensuing sinking fund payment for such Securities pursuant to the
terms of such Securities, the portion thereof, if any, which is
to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting
Securities pursuant to Section 1202 and will also deliver to the
Trustee any Securities to be so delivered. Not less than 30 days
prior to each such sinking fund payment date, the Trustee shall
select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section
1104. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated
in Sections 1106 and 1107.
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Company's Option to Effect Defeasance or Covenant
Defeasance.
The Company may elect, at its option at any time, to have
Section 1302 or Section 1303 applied to any Securities or any
series of Securities, as the case may be, designated pursuant to
Section 301 as being defeasible pursuant to such Section 1302 or
1303, in accordance with any applicable requirements provided
pursuant to Section 301 and upon compliance with the conditions
set forth below in this Article. Any such election shall be
evidenced by a Board Resolution or in another manner specified as
contemplated by Section 301 for such Securities.
Section 1302. Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have
this Section applied to any Securities or any series of
Securities, as the case may be, the Company shall be deemed to
have been discharged from its obligations with respect to such
Securities as provided in this Section on and after the date the
conditions set forth in Section 1304 are satisfied (hereinafter
called "Defeasance"). For this purpose, such Defeasance means
that the Company shall be deemed to have paid and discharged the
entire indebtedness represented by such Securities and to have
satisfied all its other obligations under such Securities and
this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), subject to the following
which shall survive until otherwise terminated or discharged
hereunder: (1) the rights of Holders of such Securities to
receive, solely from the trust fund described in Section 1304 and
as more fully set forth in such Section, payments in respect of
the principal of and any premium and interest on such Securities
when payments are due, (2) the Company's obligations with respect
to such Securities under Sections 304, 305, 306, 1002 and 1003,
(3) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (4) this Article. Subject to compliance
with this Article, the Company may exercise its option (if any)
to have this Section applied to any Securities notwithstanding
the prior exercise of its option (if any) to have Section 1303
applied to such Securities.
Section 1303. Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have
this Section applied to any Securities or any series of
Securities, as the case may be, (1) the Company shall be released
from its obligations under Section 801(3), Sections 1005 through
1006, inclusive, and any covenants provided pursuant to Section
301(19), 901(2) or 901(7) for the benefit of the Holders of such
Securities and (2) the occurrence of any event specified in
Sections 501(4) (with respect to any of Section 801(3), Sections
1005 through 1006, inclusive, and any such covenants provided
pursuant to Section 301(19), 901(2) or 901(7)), and 501(7) shall
be deemed not to be or result in an Event of Default in each case
with respect to such Securities as provided in this Section on
and after the date the conditions set forth in Section 1304 are
satisfied (hereinafter called "Covenant Defeasance"). For this
purpose, such Covenant Defeasance means that, with respect to
such Securities, the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation
set forth in any such specified Section (to the extent so
specified in the case of Section 501(4)) or Article Fourteen,
whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or Article or by reason of
any reference in any such Section or Article to any other
provision herein or in any other document, but the remainder of
this Indenture and such Securities shall be unaffected thereby.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of
Section 1302 or Section 1303 to any Securities or any series of
Securities, as the case may be:
(1) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee which
satisfies the requirements contemplated by Section 609 and agrees
to comply with the provisions of this Article applicable to it)
as trust funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Securities, (A)
money in an amount, or (B) U.S. Government Obligations which
through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, money in
an amount, or (C) a combination thereof, in each case sufficient,
in the opinion of a firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by the
Trustee (or any such other qualifying trustee) to pay and
discharge, the principal of and any premium and interest on such
Securities on the respective Stated Maturities, in accordance
with the terms of this Indenture and such Securities. As used
herein, "U.S. Government Obligation" means (x) any security which
is (i) a direct obligation of the United States of America for
the payment of which the full faith and credit of the United
States of America is pledged or (ii) an obligation of a Person
controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of
which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case
(i) or (ii), is not callable or redeemable at the option of the
issuer thereof, and (y) any depositary receipt issued by a bank
(as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any U.S. Government Obligation which is
specified in Clause (x) above and held by such bank for the
account of the holder of such depositary receipt, or with respect
to any specific payment of principal of or interest on any U.S.
Government Obligation which is so specified and held, provided
that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the
holder of such depositary receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the
specific payment of principal or interest evidenced by such
depositary receipt.
(2) In the event of an election to have Section 1302
apply to any Securities or any series of Securities, as the case
may be, the Company shall have delivered to the Trustee an
Opinion of Counsel stating that (A) the Company has received
from, or there has been published by, the Internal Revenue
Service a ruling or (B) since the date of this instrument, there
has been a change in the applicable Federal income tax law, in
either case (A) or (B) to the effect that, and based thereon such
opinion shall confirm that, the Holders of such Securities will
not recognize gain or loss for Federal income tax purposes as a
result of the deposit, Defeasance and discharge to be effected
with respect to such Securities and will be subject to Federal
income tax on the same amount, in the same manner and at the
same times as would be the case if such deposit, Defeasance and
discharge were not to occur.
(3) In the event of an election to have Section 1303
apply to any Securities or any series of Securities, as the case
may be, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Holders of such
Securities will not recognize gain or loss for Federal income tax
purposes as a result of the deposit and Covenant Defeasance to
be effected with respect to such Securities and will be subject
to Federal income tax on the same amount, in the same manner and
at the same times as would be the case if such deposit and
Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an
Officers' Certificate to the effect that neither such Securities
nor any other Securities of the same series, if then listed on
any securities exchange, will be delisted as a result of such
deposit.
(5) No event which is, or after notice or lapse of time
or both would become, an Event of Default with respect to such
Securities or any other Securities shall have occurred and be
continuing at the time of such deposit or, with regard to any
such event specified in Sections 501(5) and (6), at any time on
or prior to the 90th day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied
until after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not
cause the Trustee to have a conflicting interest within the
meaning of the Trust Indenture Act (assuming all Securities are
in default within the meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default
under, any other agreement or instrument to which the Company is
a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not
result in the trust arising from such deposit constituting an
investment company within the meaning of the Investment Company
Act unless such trust shall be registered under such Act or
exempt from registration thereunder.
(9) At the time of such deposit, (A) no default in the
payment of any principal of or premium or interest on any Senior
Debt shall have occurred and be continuing, (B) no event of
default with respect to any Senior Debt shall have resulted in
such Senior Debt becoming, and continuing to be, due and payable
prior to the date on which it would otherwise have become due
and payable (unless payment of such Senior Debt has been made or
duly provided for), and (C) no other event of default with
respect to any Senior Debt shall have occurred and be continuing
permitting (after notice or lapse of time or both) the holders of
such Senior Debt (or a trustee on behalf of such holders) to
declare such Senior Debt due and payable prior to the date on
which it would otherwise have become due and payable.
(10) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent with respect to such Defeasance or
Covenant Defeasance have been complied with.
Section 1305. Deposited Money and U.S. Government Obligations to
Be Held in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section
1003, all money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee or other qualifying
trustee (solely for purposes of this Section and Section 1306,
the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 1304 in
respect of any Securities shall be held in trust and applied by
the Trustee, in accordance with the provisions of such Securities
and this Indenture, to the payment, either directly or through
any such Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of
such Securities, of all sums due and to become due thereon in
respect of principal and any premium and interest, but money so
held in trust need not be segregated from other funds except to
the extent required by law.
Money and U.S. Government Obligations so held in trust shall
not be subject to the provisions of Article Fourteen.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 1304 or the
principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of
the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time
upon Company Request any money or U.S. Government Obligations
held by it as provided in Section 1304 with respect to any
Securities which, in the opinion of a firm of independent public
accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof
which would then be required to be deposited to effect the
Defeasance or Covenant Defeasance, as the case may be, with
respect to such Securities.
Section 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any
money in accordance with this Article with respect to any
Securities by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise
prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been
discharged or released pursuant to Section 1302 or 1303 shall be
revived and reinstated as though no deposit had occurred pursuant
to this Article with respect to such Securities, until such time
as the Trustee or Paying Agent is permitted to apply all money
held in trust pursuant to Section 1305 with respect to such
Securities in accordance with this Article; provided, however,
that if the Company makes any payment of principal of or any
premium or interest on any such Security following such
reinstatement of its obligations, the Company shall be subrogated
to the rights (if any) of the Holders of such Securities to
receive such payment from the money so held in trust.
ARTICLE FOURTEEN
Junior Subordinated Securities
Section 1401. Certain Securities Subordinate to Senior Debt.
As provided pursuant to Section 301 or in a supplemental
indenture, the Company may issue one or more series of Securities
subject to the provisions of this Article Fourteen, and each
Holder of a Security of a series so issued ("Junior Subordinated
Securities"), whether upon original issue or upon transfer or
assignment thereof, accepts and agrees to be bound by such
provisions.
The payment of the principal of, premium, if any, and
interest on all Junior Subordinated Securities issued with
respect to which this Article Fourteen applies shall, to the
extent and in the manner hereinafter set forth, be subordinate
and subject in right of payment to the prior payment in full of
all Senior Debt, whether outstanding at the date of this
Indenture or thereafter incurred.
No provision of this Article Fourteen shall prevent the
occurrence of any default or Event of Default hereunder.
Section 1402. Payment Over of Proceeds Upon Default.
In the event and during the continuation of any default in
the payment of principal, premium, interest or any other payment
due on any Senior Debt continuing beyond the period of grace, if
any, specified in the instrument evidencing such Senior Debt,
unless and until such default shall have been cured or waived or
shall have ceased to exist, or in the event that the maturity of
any Senior Debt has been accelerated because of a default, then
no payment shall be made by the Company with respect to the
principal (including redemption and sinking fund payments) of, or
premium, if any, or interest on the Junior Subordinated
Securities.
In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee or any holder when such
payment is prohibited by the preceding paragraph of this Section
1402, such payment shall be held in trust for the benefit of, and
shall be paid over or delivered to, the holders of Senior Debt or
their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Debt may
have been issued, as their respective interests may appear, but
only to the extent that the holders of the Senior Debt (or their
representative or representatives or a trustee) notify the
Trustee within 90 days of such payment of the amounts then due
and owing on the Senior Debt and only the amounts specified in
such notice to the Trustee shall be paid to the holders of Senior
Debt.
Section 1403. Payment Over of Proceeds Upon Dissolution, Etc.
Upon any payment by the Company, or distribution of assets
of the Company of any kind or character, whether in cash,
property or securities, to creditors upon any dissolution or
winding-up or liquidation or reorganization of the Company,
whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due or to become
due upon all Senior Debt shall first be paid in full, or payment
thereof provided for in money in accordance with its terms,
before any payment is made on account of the principal (and
premium, if any) or interest on the Junior Subordinated
Securities; and upon any such dissolution or winding-up or
liquidation or reorganization any payment by the Company, or
distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to which the Holders of
the Junior Subordinated Securities or the Trustee would be
entitled, except for the provisions of this Article Fourteen,
shall be paid by the Company or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other person making
such payment or distribution, or by the Holders of the Junior
Subordinated Securities or by the Trustee under this Indenture if
received by them or it, directly to the holders of Senior Debt
(pro rata to such holders on the basis of the respective amounts
of Senior Debt held by such holders, as calculated by the
Company) or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any
instruments evidencing any Senior Debt may have been issued, as
their respective interests may appear, to the extent necessary to
pay all Senior Debt in full, in money or money's worth, after
giving effect to any concurrent payment or distribution to or for
the holders of Senior Debt, before any payment or distribution is
made to the holders of Junior Subordinated Securities or to the
Trustee.
In the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, prohibited by
the foregoing, shall be received by the Trustee or the holders of
the Junior Subordinated Securities before all Senior Debt is paid
in full, or provision is made for such payment in money in
accordance with its terms, such payment or distribution shall be
held in trust for the benefit of and shall be paid over or
delivered to the holders of Senior Debt or their representative
or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any Senior
Debt may have been issued, as their respective interests may
appear, as calculated by the Company, for application to the
payment of all Senior Debt remaining unpaid to the extent
necessary to pay all Senior Debt in full in money in accordance
with its terms, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Debt.
For purposes of this Article Fourteen, the words, "cash,
property or securities" shall not be deemed to include shares of
stock of the Company as reorganized or readjusted, or securities
of the Company or any other corporation provided for by a plan of
reorganization or readjustment, the payment of which is
subordinated at least to the extent provided in this Article
Fourteen with respect to the Junior Subordinated Securities to
the payment of all Senior Debt which may at the time be
outstanding; provided that (i) the Senior Debt is assumed by the
new corporation, if any, resulting from any such reorganization
or readjustment, and (ii) the rights of the holders of the Senior
Debt are not, without the consent of such holders, altered by
such reorganization or readjustment. The consolidation of the
Company with, or the merger of the Company into, another
corporation or the liquidation or dissolution of the Company
following the conveyance or transfer of its property as an
entirety, or substantially as an entirety, to another corporation
upon the terms and conditions provided for in Article Eight
hereof shall not be deemed a dissolution, winding-up, liquidation
or reorganization for the proposes of this Section 1403 if such
other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in
Article Eight hereof. Nothing in Section 1402 or in this Section
1403 shall apply to claims of, or payments to, the Trustee under
or pursuant to Section 607.
Section 1404. Subrogation to Rights of Holders of Senior Debt.
Subject to the payment in full of all Senior Debt, the
rights of the holders of the Junior Subordinated Securities shall
be subrogated to the rights of the holders of Senior Debt to
receive payments or distributions of cash, property or securities
of the Company applicable to the Senior Debt; and, for the
purposes of such subrogation, no payment or distributions to the
holders of the Senior Debt of any cash, property or securities to
which the holders of the Junior Subordinated Securities or the
Trustee would be entitled except for the provisions of this
Article Fourteen, and no payment over pursuant to the provisions
of this Article Fourteen, to or for the benefit of the holders of
Senior Debt by holders of the Junior Subordinated Securities or
the Trustee, shall, as between the Company, its creditors other
than holders of Senior Debt, and the Holders of the Junior
Subordinated Securities, be deemed to be a payment by the Company
to or on account of the Senior Debt. It is understood that the
provisions of this Article Fourteen are and are intended solely
for the purposes of defining the relative rights of the holders
of the Junior Subordinated Securities, on the one hand, and the
holders of the Senior Debt on the other hand.
Nothing contained in this Article Fourteen or elsewhere in
this Indenture or in the Junior Subordinated Securities is
intended to or shall impair, as between the Company, its
creditors other than the holders of Senior Debt, and the holders
of the Junior Subordinated Securities, the obligation of the
Company, which is absolute and unconditional, to pay to the
holders of the Junior Subordinated Securities the principal of
(and premium, if any) and interest on the Junior Subordinated
Securities as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect
the relative rights of the holders of the Junior Subordinated
Securities and creditors of the Company other than the holders of
the Senior Debt, nor shall anything herein or therein prevent the
Trustee or the holder of any Junior Subordinated Security from
exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any,
under this Article Fourteen of the holders of Senior Debt in
respect of cash, property or securities of the Company received
upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article Fourteen, the Trustee, subject to the
provision of Article Six, and the Holders of the Junior
Subordinated Securities shall be entitled to rely upon any order
or decree made by any court of competent jurisdiction in which
such dissolution, winding-up, liquidation or reorganization,
liquidation or reorganization proceedings are pending, or a
certificate of the receiver, trustee in bankruptcy, liquidation
trustee, agent or other person making such payment or
distribution, delivered to the Trustee or to the Holders of the
Junior Subordinated Securities, for the purposes of ascertaining
the persons entitled to participate in such distribution, the
holders of the Senior Debt and other indebtedness of the Company,
the amount hereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or
to this Article Fourteen.
Section 1405. Trustee to Effectuate Subordination.
Each Holder of a Junior Subordinated Security by his
acceptance thereof authorizes and directs the Trustee in his
behalf to take such action as may be necessary or appropriate to
effectuate the subordination provided in this Article Fourteen
and appoints the Trustee his attorney-in-fact for any and all
such purposes.
Section 1406. Notice to Trustee.
The Company shall give prompt written notice to a
Responsible Officer of the Trustee of any fact known to the
Company which would prohibit the making of any payment of monies
to or by the Trustee in respect of the Junior Subordinated
Securities pursuant to the provisions of this Article Fourteen.
Notwithstanding the provisions of this Article Fourteen or any
other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would
prohibit the making of any payment of monies to or by the Trustee
in respect of the Junior Subordinated Securities pursuant to the
provisions of this Article Fourteen, unless and until a
Responsible Officer of the Trustee shall have received written
notice thereof at the Principal Office of the Trustee from the
Company or a holder or holders of Senior Debt or from any trustee
therefor; and before the receipt of any such written notice, the
Trustee, subject to the provisions of Article Six, shall be
entitled in all respects to assume that no such facts exist;
provided, however, that if the Trustee shall not have received
the notice provided for in this Section 1406 at least two
Business Days prior to the date upon which by the terms hereof
any money may become payable for any purpose (including, without
limitation, the payment of the principal of (or premium, if any)
or interest on any Junior Subordinated Security), then, anything
herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such money and to
apply the same to the purposes for which they were received, and
shall not be affected by any notice to the contrary which may be
received by it within two Business Days prior to such date.
The Trustee, subject to the provisions of Article Six, shall
be entitled to rely on the delivery to it of a written notice by
a person representing himself to be a holder of Senior Debt (or a
trustee on behalf of such holder) to establish that such notice
has been given by a holder of Senior Debt or a trustee on behalf
of any such holder or holders. In the event that the Trustee
determines in good faith that further evidence is required with
respect to the right of any person as a holder of Senior Debt to
participate in any payment or distribution pursuant to this
Article Fourteen, the Trustee may request such person to furnish
evidence to the reasonable satisfaction of the Trustee as to the
amount of Senior Debt held by such Person, the extent to which
such person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such
person under this Article Fourteen, and if such evidence is not
furnished the Trustee may defer any payment to such person
pending judicial determination as to the right of such person to
receive such payment.
Section 1407. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article Fourteen in respect of
any Senior Debt at any time held by it, to the same extent as any
other holder of Senior Debt, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder.
Nothing in this Article Fourteen shall apply to claims of,
or payments to, the Trustee under or pursuant to Section 607.
Section 1408. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Debt
to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on
the part of the Company or by any act or failure to act, in good
faith, by any such holder, or by any noncompliance by the Company
with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof which any such holder may
have or otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt may, at any time and from
time to time, without the consent of or notice to the Trustee or
the holders of the Junior Subordinated Securities, without
incurring responsibility to the holders of the Junior
Subordinated Securities and without impairing or releasing the
subordination provided in this Article or the obligations
hereunder of the holders of the Junior Subordinated Securities to
the holders of Senior Debt, do any one or more of the following:
(i) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, Senior Debt, or otherwise
amend or supplement in any manner Senior Debt or any instrument
evidencing the same or any agreement under which Senior Debt is
outstanding; (ii) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing Senior
Debt; (iii) release any person liable in any manner for the
collection of Senior Debt; and (iv) exercise or refrain from
exercising any rights against the Company and any other person.
-----------------------------
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but
one and the same instrument.
In Witness Whereof, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above
written.
PSI ENERGY, INC.
By
------------------------
THE FIFTH THIRD BANK
as Trustee
By
----------------------
EXHIBIT 5
[LETTERHEAD OF BINGHAM SUMMERS WELSH & SPILMAN]
August 27, 1996
PSI Energy, Inc.
139 East 4th Street
Cincinnati, OH 45201
Re: $250,000,000 PSI Energy, Inc. Unsecured
Debt Securities (Shelf Registration)
Ladies and Gentlemen:
You have requested our opinion as special counsel to PSI
Energy, Inc. (the "Company") in connection with the proposed shelf
registration by it of $250,000,000 principal amount of its
unsecured debt securities (the "Debt Securities").
In connection with your request to us, we have examined
copies of:
1. Registration Statement on Form S-3, including the
documents incorporated therein by reference (the
"Registration Statement"), being filed by the Company
with the Securities and Exchange Commission (the
"Commission") on or about August 27, 1996 for the
registration of the Debt Securities pursuant to the
Securities Act of 1993, as amended;
2. Amended Articles of Consolidation of the Company, as
amended, and its By-Laws as now in effect;
3. Resolutions relating to the Debt Securities which were
adopted by the Board of Directors of the Company on
April 26, 1996;
4. Form of a proposed indenture between the Company and The
Fifth Third Bank (the "Indenture"), a copy of which is
being filed as an Exhibit to the Registration
Statement;
5. Form of the Underwriting Agreement relating to the Debt
Securities, a copy of which is being filed as an
Exhibit to the Registration Statement;
6. Proposed form of the Debt Securities, as included in the
form of the proposed Indenture; and
7. Such other opinions, documents, minutes, corporate
records, certificates of public officials, certificates
or representations of officers of the Company,
instruments and matters relating to the authorization
and issuance of the Debt Securities as we have deemed
necessary.
Based upon the foregoing, we are of the opinion that:
1. The Company has been duly incorporated and is validly
existing under the laws of the State of Indiana; and
2. When
(a) the Company shall have duly authorized the creation
of the Debt Securities under the Indenture, the
issuance and sale of the Debt Securities, the
execution and delivery of the Indenture in
substantially the form of the Indenture referred
to in paragraph 4 above, and shall have
established the interest rate, redemption prices
and other terms of the Debt Securities;
(b) the Company's Registration Statement, as it may be
amended, shall have been declared effective by
order of the Commission, and the Indenture (as
supplemented by a supplemental indenture, if
utilized for the Debt Securities) shall have been
qualified under the Trust Indenture Act of 1939,
as amended;
(c) the Indiana Utility Regulatory Commission shall
have entered an appropriate order authorizing the
issuance and sale of the Debt Securities;
(d) the Indenture (and a supplemental indenture, if
utilized for the Debt Securities) in substantially
the form(s) authorized by the Company shall have
been duly executed and delivered by the proper
officers of the Company and the Trustee; and
(e) the Debt Securities in substantially the form of
the proposed form of the Debt Securities shall
have been duly executed, authenticated, issued and
delivered by the proper officers of the Company to
the underwriters thereof against payment of the
purchase price therefor in accordance with the
Underwriting Agreement relating to the Debt
Securities,
then the Debt Securities will constitute valid and binding
obligations of the Company in accordance with their terms, except
as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors'
rights generally, and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the reference to us in the
Prospectus comprising a part of the Registration Statement under
the caption "Legal Opinions." By giving this consent, we do not
admit that we come within the category of persons whose consent is
required under Section 7 of the Securities Act of 1933, as
amended, or the rules and regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
/s/ Bingham Summers Welsh &
Spilman
<PAGE>
EXHIBIT 12
PSI ENERGY, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
12 MONTHS 12 MONTHS ENDED DECEMBER 31
ENDED JUNE ------------------------------------------------
30, 1996 1995 1994 1993 1992 1991
------------ -------- -------- -------- -------- --------
(UNAUDITED) (THOUSANDS, EXCEPT RATIOS)
<S> <C> <C> <C> <C> <C> <C>
EARNINGS AVAILABLE
Income Before Interest
Charges............... $215,154 $228,002 $156,991 $188,881 $173,310 $115,913
Allowance for borrowed
funds used during
construction--
credit................ 2,789 4,211 9,355 9,154 5,672 3,643
Income taxes........... 81,539 84,102 51,678 69,153 63,602 17,000
Rents(a)............... 3,457 3,620 3,946 3,739 3,364 4,098
------------ -------- -------- -------- -------- --------
Total Available...... $302,939 $319,935 $221,970 $270,927 $245,948 $140,654
------------ -------- -------- -------- -------- --------
------------ -------- -------- -------- -------- --------
FIXED CHARGES
Interest Charges....... $ 83,290 $ 86,398 $ 84,154 $ 73,137 $ 72,012 $ 89,144
Rents(a)............... 3,457 3,620 3,946 3,739 3,364 4,098
------------ -------- -------- -------- -------- --------
Total Fixed
Charges............. $ 86,747 $ 90,018 $ 88,100 $ 76,876 $ 75,376 $ 93,242
------------ -------- -------- -------- -------- --------
------------ -------- -------- -------- -------- --------
Ratio of Earnings to
Fixed Charges......... 3.49 3.55 2.52 3.52 3.26 1.51
------------ -------- -------- -------- -------- --------
------------ -------- -------- -------- -------- --------
<FN>
- ---------
(a) Estimated interest component of rentals (1/3 of rentals was used where no
readily defined interest element could be determined).
</TABLE>
EXHIBIT 24-A
PSI ENERGY, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
hereby constitutes and appoints J. Wayne Leonard, William L.
Sheafer, Bernard F. Roberts, Cheryl M. Foley and Jerome A.
Vennemann, and each of them, with full power to act without the
others, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name
to sign Registration Statements on Form S-3 or such appropriate
form as may be required, and any amendments thereto, covering the
issuance and sale of debt securities (consisting of first mortgage
bonds, debentures, or secured or unsecured promissory notes), in
one or more series, and to file the same, with all exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto the attorneys-
in-fact and agents, and each of them, full power and authority to
do each act necessary to be done, as fully to all purposes as he
might do in person, hereby ratifying all that such attorneys-in-
fact and agents or any of them, or their or his/her substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this Power
of Attorney to be executed this 22nd day of August, 1996.
/s/ Jackson H. Randolph
-------------------------------
Jackson H. Randolph
<PAGE>
EXHIBIT 24-A
PSI ENERGY, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
hereby constitutes and appoints J. Wayne Leonard, William L.
Sheafer, Bernard F. Roberts, Cheryl M. Foley and Jerome A.
Vennemann, and each of them, with full power to act without the
others, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name
to sign Registration Statements on Form S-3 or such appropriate
form as may be required, and any amendments thereto, covering the
issuance and sale of debt securities (consisting of first mortgage
bonds, debentures, or secured or unsecured promissory notes), in
one or more series, and to file the same, with all exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto the attorneys-
in-fact and agents, and each of them, full power and authority to
do each act necessary to be done, as fully to all purposes as he
might do in person, hereby ratifying all that such attorneys-in-
fact and agents or any of them, or their or his/her substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this Power
of Attorney to be executed this 22nd day of August, 1996.
/s/ James E. Rogers
-------------------------------
James E. Rogers
<PAGE>
EXHIBIT 24-A
PSI ENERGY, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
hereby constitutes and appoints J. Wayne Leonard, William L.
Sheafer, Bernard F. Roberts, Cheryl M. Foley and Jerome A.
Vennemann, and each of them, with full power to act without the
others, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name
to sign Registration Statements on Form S-3 or such appropriate
form as may be required, and any amendments thereto, covering the
issuance and sale of debt securities (consisting of first mortgage
bonds, debentures, or secured or unsecured promissory notes), in
one or more series, and to file the same, with all exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto the attorneys-
in-fact and agents, and each of them, full power and authority to
do each act necessary to be done, as fully to all purposes as he
might do in person, hereby ratifying all that such attorneys-in-
fact and agents or any of them, or their or his/her substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this Power
of Attorney to be executed this 22nd day of August, 1996.
/s/ James K. Baker
--------------------------------
James K. Baker
<PAGE>
EXHIBIT 24-A
PSI ENERGY, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
hereby constitutes and appoints J. Wayne Leonard, William L.
Sheafer, Bernard F. Roberts, Cheryl M. Foley and Jerome A.
Vennemann, and each of them, with full power to act without the
others, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name
to sign Registration Statements on Form S-3 or such appropriate
form as may be required, and any amendments thereto, covering the
issuance and sale of debt securities (consisting of first mortgage
bonds, debentures, or secured or unsecured promissory notes), in
one or more series, and to file the same, with all exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto the attorneys-
in-fact and agents, and each of them, full power and authority to
do each act necessary to be done, as fully to all purposes as he
might do in person, hereby ratifying all that such attorneys-in-
fact and agents or any of them, or their or his/her substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this Power
of Attorney to be executed this 23rd day of August, 1996.
/s/ Michael G. Browning
----------------------------------
Michael G. Browning
<PAGE>
EXHIBIT 24-A
PSI ENERGY, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
hereby constitutes and appoints J. Wayne Leonard, William L.
Sheafer, Bernard F. Roberts, Cheryl M. Foley and Jerome A.
Vennemann, and each of them, with full power to act without the
others, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name
to sign Registration Statements on Form S-3 or such appropriate
form as may be required, and any amendments thereto, covering the
issuance and sale of debt securities (consisting of first mortgage
bonds, debentures, or secured or unsecured promissory notes), in
one or more series, and to file the same, with all exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto the attorneys-
in-fact and agents, and each of them, full power and authority to
do each act necessary to be done, as fully to all purposes as he
might do in person, hereby ratifying all that such attorneys-in-
fact and agents or any of them, or their or his/her substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this Power
of Attorney to be executed this 23rd day of August, 1996.
/s/ John A. Hillenbrand II
--------------------------------
John A. Hillenbrand II
<PAGE>
EXHIBIT 24-A
PSI ENERGY, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
hereby constitutes and appoints J. Wayne Leonard, William L.
Sheafer, Bernard F. Roberts, Cheryl M. Foley and Jerome A.
Vennemann, and each of them, with full power to act without the
others, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name
to sign Registration Statements on Form S-3 or such appropriate
form as may be required, and any amendments thereto, covering the
issuance and sale of debt securities (consisting of first mortgage
bonds, debentures, or secured or unsecured promissory notes), in
one or more series, and to file the same, with all exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto the attorneys-
in-fact and agents, and each of them, full power and authority to
do each act necessary to be done, as fully to all purposes as he
might do in person, hereby ratifying all that such attorneys-in-
fact and agents or any of them, or their or his/her substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this Power
of Attorney to be executed this 22nd day of August, 1996.
/s/ Van P. Smith
----------------------------------
Van P. Smith
<PAGE>
EXHIBIT 24-A
PSI ENERGY, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
hereby constitutes and appoints J. Wayne Leonard, William L.
Sheafer, Bernard F. Roberts, Cheryl M. Foley and Jerome A.
Vennemann, and each of them, with full power to act without the
others, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name
to sign Registration Statements on Form S-3 or such appropriate
form as may be required, and any amendments thereto, covering the
issuance and sale of debt securities (consisting of first mortgage
bonds, debentures, or secured or unsecured promissory notes), in
one or more series, and to file the same, with all exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto the attorneys-
in-fact and agents, and each of them, full power and authority to
do each act necessary to be done, as fully to all purposes as he
might do in person, hereby ratifying all that such attorneys-in-
fact and agents or any of them, or their or his/her substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this Power
of Attorney to be executed this 22nd day of August, 1996.
/s/ John M. Mutz
----------------------------------
John M. Mutz
<PAGE>
EXHIBIT 24-A
PSI ENERGY, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
hereby constitutes and appoints J. Wayne Leonard, William L.
Sheafer, Bernard F. Roberts, Cheryl M. Foley and Jerome A.
Vennemann, and each of them, with full power to act without the
others, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name
to sign Registration Statements on Form S-3 or such appropriate
form as may be required, and any amendments thereto, covering the
issuance and sale of debt securities (consisting of first mortgage
bonds, debentures, or secured or unsecured promissory notes), in
one or more series, and to file the same, with all exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto the attorneys-
in-fact and agents, and each of them, full power and authority to
do each act necessary to be done, as fully to all purposes as he
might do in person, hereby ratifying all that such attorneys-in-
fact and agents or any of them, or their or his/her substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this Power
of Attorney to be executed this 22nd day of August, 1996.
/s/ J. Wayne Leonard
------------------------------------
J. Wayne Leonard
<PAGE>
EXHIBIT 24-A
PSI ENERGY, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
hereby constitutes and appoints J. Wayne Leonard, William L.
Sheafer, Bernard F. Roberts, Cheryl M. Foley and Jerome A.
Vennemann, and each of them, with full power to act without the
others, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name
to sign Registration Statements on Form S-3 or such appropriate
form as may be required, and any amendments thereto, covering the
issuance and sale of debt securities (consisting of first mortgage
bonds, debentures, or secured or unsecured promissory notes), in
one or more series, and to file the same, with all exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto the attorneys-
in-fact and agents, and each of them, full power and authority to
do each act necessary to be done, as fully to all purposes as he
might do in person, hereby ratifying all that such attorneys-in-
fact and agents or any of them, or their or his/her substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this Power
of Attorney to be executed this 22nd day of August, 1996.
/s/ Charles J. Winger
--------------------------------
Charles J. Winger
EXHIBIT 24-B
[LETTERHEAD OF PSI ENERGY, INC.]
CERTIFICATE OF ASSISTANT CORPORATE SECRETARY
--------------------------------------------
I, JEROME A. VENNEMANN, an Assistant Corporate Secretary of
PSI Energy, Inc., an Indiana corporation, DO HEREBY CERTIFY that
the following is a true and correct copy of a resolution duly
adopted by the Board of Directors of said corporation on April
26, 1996, and that such resolution has not been amended and is in
full force and effect on the date hereof:
RESOLVED, That each of J. Wayne Leonard, Group Vice
President and Chief Financial Officer, William L.
Sheafer, Treasurer, Bernard F. Roberts, Assistant
Treasurer, Cheryl M. Foley, Vice President, General
Counsel and Corporate Secretary, and Jerome A.
Vennemann, Assistant Corporate Secretary, with power to
act without the others, is authorized to sign
Registration Statements on Form S-3 or such appropriate
form as may be required, including any amendments
thereto as he or she may deem necessary, covering the
Securities, on behalf of and as attorney-in-fact for
the Chairman of the Board, the Vice Chairman, the Chief
Executive Officer, the President, any Vice President,
the Treasurer, the Controller, or any Director of the
Company, with full power of substitution, and hereby
granting unto the above named individuals full
authority to cause to be filed such Registration
Statements with the Securities and Exchange Commission
and to do such other acts as are necessary to be done
as fully as this Board might do;
IN WITNESS WHEREOF, I have hereunto subscribed my name this 27th
day of August, 1996.
/s/ Jerome A. Vennemann
-----------------------------
Assistant Corporate Secretary
<PAGE>
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(B)(2)
THE FIFTH THIRD BANK
- -------------------------------------------------------------------------------
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
OHIO
- -------------------------------------------------------------------------------
(JURISDICTION OF INCORPORATION OR ORGANIZATION IF NOT A
NATIONAL BANK)
31-0854433
- -------------------------------------------------------------------------------
(I.R.S. EMPLOYER IDENTIFICATION NO.)
38 FOUNTAIN SQUARE PLAZA, CINCINNATI, OHIO
- -------------------------------------------------------------------------------
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
45263
- -------------------------------------------------------------------------------
(ZIP CODE)
Paul L. Reynolds, 5th and Walnut Streets
CINCINNATI, OHIO, 45263 (513) 579-5300
- -------------------------------------------------------------------------------
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
PSI ENERGY, INC.
- -------------------------------------------------------------------------------
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
INDIANA
- -------------------------------------------------------------------------------
(STATE OR OTHER JURISDICTION OF INCORPORATION OR ORGANIZATION)
35-0594457
- -------------------------------------------------------------------------------
(I.R.S. EMPLOYER IDENTIFICATION NO.)
1000 EAST MAIN STREET, PLAINFIELD, INDIANA
- -------------------------------------------------------------------------------
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
46168
- -------------------------------------------------------------------------------
(ZIP CODE)
DEBT SECURITIES
- -------------------------------------------------------------------------------
(TITLE OF THE INDENTURE SECURITIES)
<PAGE>
ITEM 1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE -
(a) Name and address of each examining or supervising authority to which
it is subject.
Ohio Superintendent of Banks
State Office Tower
30 E. Broad Street
Columbus, Ohio 43215
Federal Reserve Bank of Cleveland
East Sixth Street and Superior Avenue
Cleveland, Ohio 44101
Federal Deposit Insurance Corporation,
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
ITEM 3. VOTING SECURITIES OF THE TRUSTEE.(1)
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF VOTING
SECURITIES OF THE TRUSTEE:
- ---------------------
1 All of the outstanding voting securities of the trustee are owned by
Fifth Third Bancorp, an Ohio corporation. Answers to the following items herein
concerning voting securities of the trustee owned by third parties relate to
outstanding voting securities of Fifth Third Bancorp. Answers to all other
items of this statement of eligibility on Form T-1 relate to the Trustee only,
and do not contain information regarding Fifth Third Bancorp or other
subsidiaries of Fifth Third Bancorp.
2
<PAGE>
AS OF JULY 31, 1996
COL. A. COL. B
TITLE OF CLASS AMOUNT OUTSTANDING
-------------- ------------------
[Capital Stock, par value 32,000]
$2,200.00 per share
ITEM 4. TRUSTEESHIPS UNDER OTHER INDENTURES.
IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY
OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, FURNISH THE FOLLOWING
INFORMATION:
(a) TITLE OF THE SECURITIES OUTSTANDING UNDER EACH SUCH OTHER INDENTURE.
(1) None.
(b) A BRIEF STATEMENT OF THE FACTS RELIED UPON AS A BASIS FOR THE CLAIM
THAT NO CONFLICTING INTEREST WITHIN THE MEANING OF SECTION 310(b)(1)
OF THE ACT ARISES AS A RESULT OF THE TRUSTEESHIP UNDER ANY SUCH OTHER
INDENTURE, INCLUDING A STATEMENT AS TO HOW THE INDENTURE SECURITIES
WILL RANK AS COMPARED WITH THE SECURITIES ISSUED UNDER SUCH OTHER
INDENTURE.
(1) None, so far as is known to the trustee.
ITEM 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR
OR UNDERWRITERS.
IF THE TRUSTEE OR ANY OF THE DIRECTORS OR EXECUTIVE OFFICERS OF THE
TRUSTEE IS A DIRECTOR, OFFICER, PARTNER, EMPLOYEE, APPOINTEE, OR
REPRESENTATIVE OF THE OBLIGOR OR OF ANY UNDERWRITER FOR THE OBLIGOR,
IDENTIFY EACH SUCH PERSON HAVING ANY SUCH CONNECTION AND STATE THE NATURE
OF EACH SUCH CONNECTION.
None.
ITEM 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS
OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE
TRUSTEE OWNED BENEFICIALLY BY THE OBLIGOR AND EACH DIRECTOR, PARTNER AND
EXECUTIVE OFFICER OF THE OBLIGOR.
3
<PAGE>
AS OF JULY 31, 1996
COL. D
PERCENTAGE OF VOTING
COL. A COL. B COL. C. SECURITIES REPRESENTED
NAME OF TITLE AMOUNT OWNED BY AMOUNT GIVEN IN
OWNER OF CLASS BENEFICIALLY COL. C
- ------- -------- ------------ ----------------------
None, so far as is known to the trustee.
ITEM 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE
TRUSTEE OWNED BENEFICIALLY BY EACH UNDERWRITER FOR THE OBLIGOR AND EACH
DIRECTOR, PARTNER, AND EXECUTIVE OFFICER OF EACH SUCH UNDERWRITER.
AS OF JULY 31, 1996
COL. D
PERCENTAGE OF VOTING
COL. A COL. B COL. C. SECURITIES REPRESENTED
NAME OF TITLE AMOUNT OWNED BY AMOUNT GIVEN IN
OWNER OF CLASS BENEFICIALLY COL. C
- ------- -------- ------------ ----------------------
None, so far as is known to the trustee.
Item 8. Securities of the obligor owned or held by the trustee.
FURNISH THE FOLLOWING INFORMATION AS TO SECURITIES OF THE OBLIGOR
OWNED BENEFICIALLY OR HELD AS COLLATERAL SECURITY FOR OBLIGATIONS IN
DEFAULT BY THE TRUSTEE.
AS OF JULY 31, 1996
COL. C
COL. B AMOUNT OWNED
WHETHER THE BENEFICIALLY COL. D
SECURITIES ARE OR HELD AS PERCENT OF CLASS
COL. A VOTING OR COLLATERAL SECURITY REPRESENTED BY
TITLE OF NON-VOTING FOR OBLIGATIONS AMOUNT GIVEN IN
CLASS SECURITIES IN DEFAULT COL. C
- -------- -------------- ------------------- ----------------
None.
4
<PAGE>
ITEM 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF AN UNDERWRITER FOR THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO WHICH CLASS OF SECURITIES OF SUCH
UNDERWRITER ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
AS OF JULY 31, 1996
COL. D
COL. C PERCENT
AMOUNT OWNED OF CLASS
COL. A BENEFICIALLY OR HELD REPRESENTED
TITLE OF COL. B AS COLLATERAL SECURITY BY AMOUNT
ISSUER AND AMOUNT FOR OBLIGATIONS IN GIVEN IN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE COL. C.
- -------------- ----------- ---------------------- -----------
None, so far as is known to the trustee.
ITEM 10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF
CERTAIN AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY
FOR OBLIGATIONS IN DEFAULT VOTING SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE
OF THE TRUSTEE (1) OWNS 10 PERCENT OR MORE OF THE VOTING SECURITIES OF THE
OBLIGOR OR (2) IS AN AFFILIATE, OTHER THAN A SUBSIDIARY, OF THE OBLIGOR, FURNISH
THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF SUCH PERSON.
AS OF JULY 31, 1996
COL. D
COL. C PERCENT
AMOUNT OWNED OF CLASS
COL. A BENEFICIALLY OR HELD REPRESENTED
TITLE OF COL. B AS COLLATERAL SECURITY BY AMOUNT
ISSUER AND AMOUNT FOR OBLIGATIONS IN GIVEN IN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE COL. C.
- -------------- ----------- ---------------------- -----------
None, so far as is known to the trustee.
ITEM 11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON
OWNING 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR.
5
<PAGE>
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF
THE TRUSTEE, OWNS 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE
OBLIGOR, FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES
OF SUCH PERSON ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
AS OF JULY 31, 1996
COL. D
COL. C PERCENT
AMOUNT OWNED OF CLASS
COL. A BENEFICIALLY OR HELD REPRESENTED
TITLE OF COL. B AS COLLATERAL SECURITY BY AMOUNT
ISSUER AND AMOUNT FOR OBLIGATIONS IN GIVEN IN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE COL. C.
- -------------- ----------- ---------------------- -----------
None, so far as is known to the trustee.
ITEM 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE
EXCEPT AS NOTED IN THE INSTRUCTIONS, IF THE OBLIGOR IS INDEBTED TO THE
TRUSTEE, FURNISH THE FOLLOWING INFORMATION:
COL. A COL. B
NATURE OF AMOUNT COL. C
INDEBTEDNESS OUTSTANDING DATE DUE
- ------------ ----------- --------
None.
ITEM 13. DEFAULTS BY THE OBLIGOR.
(a) STATE WHETHER THERE IS OR HAS BEEN A DEFAULT WITH RESPECT TO THE
SECURITIES UNDER THIS INDENTURE. EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
None.
(b) IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY
OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, OR IS TRUSTEE FOR MORE THAN ONE
OUTSTANDING SERIES OF SECURITIES UNDER THE INDENTURE, STATE WHETHER THERE HAS
BEEN A DEFAULT UNDER ANY SUCH INDENTURE OR SERIES, IDENTIFY THE INDENTURE OR
SERIES AFFECTED, AND EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
None.
6
<PAGE>
ITEM 14. AFFILIATIONS WITH THE UNDERWRITERS.
IF ANY UNDERWRITER IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
Not applicable.
ITEM 15. FOREIGN TRUSTEE.
IDENTIFY THE ORDER OR RULE PURSUANT TO WHICH THE FOREIGN TRUSTEE IS
AUTHORIZED TO ACT AS SOLE TRUSTEE UNDER INDENTURES QUALIFIED OR TO BE QUALIFIED
UNDER THE ACT.
Not applicable.
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS STATEMENT OF
ELIGIBILITY. (EXHIBITS IDENTIFIED IN PARENTHESES, ON FILE WITH THE
COMMISSION, ARE INCORPORATED HEREIN BY REFERENCE AS EXHIBITS HERETO.)
(1) A copy of the Certificate of Incorporation of the trustee as now in
effect.
(2) A copy of the certificate of authority of the trustee to commence
business. (Included in Exhibit 1)
(3) A copy of the authorization of the trustee to exercise corporate trust
powers.
(4) A copy of the existing code of regulations of the trustee
incorporating amendments to date.
(5) A copy of each indenture referred to in Item 4.
(6) The consent of the trustee required by Section 321 (b) of the Trust
Indenture Act of 1939.
(7) A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining
authority.
(8) A copy of any order pursuant to which the foreign trustee is
authorized to act as sole trustee under indentures qualified or to be
qualified under the Act.
(9) Foreign trustees are required to file a consent to service of process
of Form F-X
7
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, The Fifth Third Bank, a corporation organized and existing under the
laws of the State of Ohio, has duly caused this statement of eligibility and
qualification to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Cincinnati and the State of Ohio, on the 14th day
of June, 1996.
THE FIFTH THIRD BANK
By: /s/ Kerry R. Byrne
-----------------------------
Kerry R. Byrne, Vice President
and Trust Officer
8
<PAGE>
EXHIBIT 1
CERTIFICATE OF INCORPORATION
OF THE TRUSTEE AS NOW IN EFFECT
[See Attached]
9
<PAGE>
CERTIFICATE OF AMENDMENT
TO
ARTICLES OF INCORPORATION
OF
THE FIFTH THIRD BANK
George A. Schaefer, Jr., President and Phillip C. Long, Secretary to The
Fifth Third Bank, an Ohio banking corporation, with its principal office located
at Cincinnati, Hamilton County, Ohio, do hereby certify that a duly called
meeting of the Board of Directors held on May 18, 1993, at which a quorum was
present and at a special meeting of the shareholder on May 18, 1993, the
following resolution to amend the Third Amended Articles of Incorporation which
adopted by affirmative vote of all the Directors in attendance and by an
unanimous vote of the sole shareholder.
RESOLVED, that Article FOURTH of the Third Amendment Articles of
Incorporation be and is hereby amended in its entirety to read as follows:
FOURTH: The maximum number of shares with the corporation is authorized to
have outstanding shall be Thirty-Two Thousand (32,000) shares with a par
value of Two Thousand Two Hundred Dollars ($2,200.00) per share.
IN WITNESS WHEREOF, said George A. Schaefer, Jr., President and Phillip C.
Long, Secretary of The Fifth Third Bank, acting for and on behalf of said
corporation have hereunto subscribed their names this 18th day of May, 1993.
/s/ George A. Schaefer, Jr.
----------------------------------
George A. Schaefer, Jr., President
Approved this 16th day of June, 1993
/s/ Allison M. Meeks
- -------------------------------------
Allison M. Meeks, Superintendent
/s/ Phillip C. Long
----------------------------------
Phillip C. Long, Secretary
10
<PAGE>
THIRD AMENDED ARTICLES OF INCORPORATION
OF
THE FIFTH THIRD BANK
FIRST: The name of said Corporation shall be "The Fifth Third Bank".
SECOND: The place in Ohio where its principal office is to be located is
Cincinnati, Hamilton County, and its principal business there transacted.
THIRD: Said Corporation is formed for the purposes of (a) receiving on
deposit or in trust, moneys, securities and other valuable property, on such
terms as may be agreed, and of doing the business of a savings bank and of a
trust company; (b) of disposing of box vaults for safekeeping of valuables by
lease or otherwise; (c) of investing and loaning the funds of the company and
those received by it on deposit or in trust; (d) of doing a commercial banking
business; and, (e) of doing the business of a special plan bank, and in
furtherance of said purposes, to exercise all the powers of which may be
lawfully exercised by a corporation formed therefore, and to do all things
necessary to incident thereto.
FOURTH: The maximum number of shares which the corporation is authorized
to have outstanding shall be Thirty-Two Thousand (32,000) shares with a par
value of One Thousand Nine Hundred Dollars ($1,900.00) per share.
FIFTH: These Amended Articles of Incorporation supersede and take the
place of the existing Articles of Incorporation.
11
<PAGE>
EXHIBIT 2
CERTIFICATE OF AUTHORITY OF THE
TRUSTEE TO COMMENCE BUSINESS
(INCLUDED IN EXHIBIT 1)
12
<PAGE>
EXHIBIT 3
A COPY OF THE AUTHORIZATION OF THE TRUSTEE
TO EXERCISE CORPORATE TRUST POWERS
[See Attached]
13
<PAGE>
STATE OF OHIO
DIVISION OF FINANCIAL INSTITUTIONS
TO WHOM IT MAY CONCERN:
This is to certify that The Fifth Third Bank, Cincinnati, Ohio, organized under
the laws of the State of Ohio, has complied with the laws relating to trust
companies under Sections 1105.02 and 1109.04 of the Ohio Revised Code and is
qualified to exercise trust powers in Ohio.
Witness my hand at Columbus, Ohio, this 31st day of July, 1996.
/s/ W. Curtis Stitt
-------------------------------
W. CURTIS STITT
Superintendent
Division of Financial
Institutions
/s/ Allison M. Meeks
----------------------------
ALLISON M. MEEKS
Deputy Superintendent
of Banks
14
<PAGE>
EXHIBIT 4
A COPY OF THE EXISTING CODE OF REGULATIONS OF THE TRUSTEE
INCORPORATING AMENDMENTS TO DATE
[See Attached]
15
<PAGE>
CODE OF REGULATIONS OF THE FIFTH THIRD BANK
ARTICLE I
STOCKHOLDERS
SECTION 1. MEETINGS. The annual meeting of the Stockholders shall be
held at the principal office of the Company at such hour, as may be fixed in the
notice of such meeting, and on such date, not earlier than the second Tuesday of
January or later than the third Tuesday of April of each year, as shall be fixed
by the Board of Directors and communicated in writing to the Shareholders not
later than twenty (20) days prior to such meeting.
SECTION 2. QUORUM. Stockholders, whether in person or by lawful
proxies, representing a majority in amount of the outstanding stock of the
Company, shall constitute a quorum at any stockholders' meeting. If there be
less than a majority in amount of such stock at any meeting, the meeting may be
adjourned from time to time.
ARTICLE II
DIRECTORS
SECTION 1. NUMBER. The Board of Directors shall be composed of
eighteen (18) persons unless this number is changed by: (1) the Shareholders in
accordance with the laws of Ohio or (2) the vote of a majority of the Directors
in office. The Directors may increase the number to not more than twenty-four
(24) persons and may decrease the number to not less than fifteen (15) persons.
Any Director's office created by the Directors by reason of an increase in their
number may be filled by action of a majority of the Directors in office.
SECTION 2. TERM. Directors shall hold office until the expiration of
the term for which they were erected, and shall continue in office until their
respective successors shall have been duly elected and qualified.
SECTION 3. QUALIFICATIONS AND COMPENSATION. No person shall serve as a
Director who is not the owner of record of at least Five Hundred ($500.00)
Dollars par value of stock of the Company. Each Director shall be entitled to
receive such compensation for attendance at meetings of the Board of Directors
of Committees thereof as the Board of Directors may, from time to time, fix.
SECTION 4. REPLACEMENT OR REMOVAL. Directors may be replaced or
removed as provided by Ohio Law, provided that Directors may be removed without
cause only by an affirmative vote of not less than two-thirds (2/3) of the
outstanding shares of the Company.
16
<PAGE>
SECTION 5. VACANCIES. Any vacancy occurring in the Board of Directors
may be filled by the Board of Directors until an election to fill such vacancy
is had.
SECTION 6. QUORUM. A majority of the whole authorized number of
Directors, as the same shall be established from time to time in accordance with
Section 1 of this Code of Regulations, shall constitute a quorum for a meeting
of the Directors, except that a majority of the Directors in office constitute a
quorum for the filling of a vacancy or vacancies of the Board.
SECTION 7. ELECTION OF OFFICERS. The Board of Directors at the first
meeting after the election of Directors may elect one of its own number Chairman
of the Board and one of its own number Vice Chairman of the Board; and it shall
elect one of its own number President. It may also elect one or more vice
presidents (one or more of whom may be designated Executive Vice President
and/or Senior Vice President and/or Vice President and Trust Officer), a
Cashier, a Secretary, and a Treasurer, and it may appoint such other officers as
the Board may deem advisable. Any two of said offices may be held by the same
person. Officers so elected shall hold office during the term of the Board by
whom they are elected, subject to the power of the Board to remove them at its
discretion. They shall be bonded in such amount and with such survey or
sureties as the Board of Directors shall require.
SECTION 8. MEETINGS OF THE BOARD. Regular meetings of the Board of
Directors shall be held on the third Tuesday of each month, or at such other
times as may be determined by the Board of Directors. Except as otherwise
provided by law, any business may be transacted at any regular meeting of the
Board of Directors. Special meetings shall be held upon the call of the
Chairman of the Board, if one be elected, or by the President, or in their
absence, by a Vice President or any three (3) Directors.
SECTION 9. NOTICE OF MEETINGS. The Secretary shall give notice of each
meeting of the Board of Directors, whether regular or special, to each member of
the Board.
SECTION 10. COMMITTEES.
SECTION 10.1 EXECUTIVE COMMITTEE. The Board of Directors shall appoint
any Executive Committee consisting of at least three (3) members, all of whom
may be members of the Board of Directors, or at least one (1) of whom shall be a
Director, the remainder to be officers of the Bank. Such Executive Committee
shall serve until their successors are appointed. A majority of the members of
said Committee shall constitute a quorum. The Executive Committee shall conduct
the business of the Company and shall have all the powers of the Board of
Directors when said Board is not in session, except that of declaring a
dividend. The Secretary of the Company shall keep a record of the Committee's
proceedings, which, signed by the Chairman of the Committee, shall be presented
at the
17
<PAGE>
meetings of the Committee and at the meetings of the Board of Directors.
SECTION 10.2 OTHER COMMITTEES. The Board of Directors shall appoint a
Trust Committee of which the Vice President and Trust Officer and at least three
(3) of its members who are not officers of the Company shall be members. The
Vice President and Trust Officer shall be Chairman of the Trust Committee. In
addition thereto, the Chairman of the Board, Chief Executive Officer, may
appoint such additional Committees, by and with the approval of the Board of
Directors, as may be deemed desirable or necessary.
Each such Committee, so appointed, shall have such powers and perform such
duties, not inconsistent with law, as may be delegated to it by the Board of
Directors.
SECTION 11. INDEMNIFICATION. The Company shall indemnify each Director
and each Officer of the Company, and each person employed by the Company who
serves at the written request of the President of the Company as a director,
trustee, officer, employee or agent of another corporation, domestic or foreign,
non-profit or for profit, partnership, joint venture, trust or other enterprise,
to the full extent permitted by Ohio law. The term "Officer" as used in this
Section shall include the Chairman of the Board and the Vice Chairman of the
Board if such offices are filled, the President, each Vice President, the
Treasurer, the Secretary, the Cashier, the Controller, the Auditor, the Counsel
and any other person who is specifically designated as an "Officer" within the
operation of this Section by action of the Board of Directors. The Company may
indemnify assistant Officers, employees and others by action of the Board of
Directors to the extent permitted by Ohio law.
ARTICLE III
OFFICERS
SECTION 1. POWERS AND DUTIES. The Chairman of the Board if the office
be filled, otherwise the Vice Chairman of the Board, if the office be filled,
otherwise the President shall preside at all meetings of the Stockholders, the
Board of Directors, and the supervision and control over the business of the
Company and shall serve at the pleasure of the Board of Directors. In the
absence or disability of any of the foregoing officers, their respective duties
shall be performed by the Chairman of the Board, the Vice Chairman of the Board,
the President, or by a Vice President specifically designated by the Board of
Directors, in the order named.
The Secretary, or in his absence or disability, the Assistant Secretary,
shall act, ex officio, as Secretary of all meetings of the Stockholders, the
Board of Directors and the Executive Committee. The other officers of the
Company shall have such powers and duties as usually and customarily attach to
their offices.
18
<PAGE>
ARTICLE IV
CERTIFICATES OF STOCK
SECTION 1. FORM. Certificates for shares of stock shall be signed by
the Chairman of the Board, or by the President, or by one of the Vice
Presidents, and by the Secretary or Treasurer or by the Cashier or an Assistant
Cashier, shall contain such statements as are required by law, and shall
otherwise be in such form as the Board of Directors may, from time to time,
require.
SECTION 2. TRANSFERS. Shares shall be transferable on the books of the
Company by the holders thereof in person or by duly authorized attorney upon
surrender of the certificates therefor with duly executed assignment endorsed
thereon or attached thereto.
SECTION 3. CLOSING OF TRANSFER BOOKS. The books for transfer of the
stock of the Company shall be closed for at least five (5) days preceding the
annual meeting of stockholders, and may be closed by order of the Board of
Directors, or Executive Committee, for a like period before any other meeting of
the Stockholders.
ARTICLE V
AMENDMENTS
These regulations may be changed, and new regulations adopted by the assent
thereto in writing of two-thirds (2/3) of the Stockholders of the Company in
number an in amount; or by a majority of such Stockholders in number and in
amount, at a meeting held for that purpose, notice of which has been given by
the President, the Secretary, or any two (2) Directors personally or by written
notice, to each Stockholders, and by publication once a week for four (4)
consecutive weeks in some newspaper of general circulation in Hamilton County,
Ohio, or in such other manner as may then be authorized by the laws of Ohio.
19
<PAGE>
EXHIBIT 5
A COPY OF EACH INDENTURE REFERRED TO IN ITEM 4
(NOT APPLICABLE)
20
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED BY SECTION 321 (B)
OF THE TRUST INDENTURE ACT OF 1939
[See Attached]
21
<PAGE>
EXHIBIT 6 TO FORM T-1
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act
of 1939 in connection with the proposed issuance of Debt Securities of The
Cincinnati Gas & Electric Company, The Fifth Third Bank hereby consents that
reports of examination by Federal, State, Territorial or District Authorities
may be furnished by such authorities to the Securities and Exchange Commission
upon request therefor.
THE FIFTH THIRD BANK
By: /s/ Kerry R. Byrne
-----------------------------
Kerry R. Byrne, Vice President
and Trust Officer
<PAGE>
EXHIBIT 7
A COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE
PUBLISHED PURSUANT TO LAW OR THE REQUIREMENTS
OF ITS SUPERVISING OR EXAMINING AUTHORITY
[See Attached]
<PAGE>
R E P O R T O F C O N D I T I O N
Consolidated Report of Condition of FIFTH THIRD BANK of
CINCINNATI, OHIO and Foreign and Domestic Subsidiaries, a member of the
Federal Reserve System, at the close of business on December 31, 1995, published
in accordance with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act.
ASSETS
Thousands
of Dollars
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin. . . . . . . . . . . . . . . . . . . . . . . . 506,991
Interest-bearing balances. . . . . . . . . . . . . . . . . . . . 99
Held-to-maturity securities. . . . . . . . . . . . . . . . . . . . 79,493
Available-for-sale securities. . . . . . . . . . . . . . . . . . . 782,293
Federal funds sold and securities purchased . . . . . . . . . . . //////////
under agreements to resell in domestic offices . . . . . . . . . //////////
of the bank and of its . . . . . . . . . . . . . . . . . . . . . //////////
Edge and Agreement subsidiaries, and in IBFs:
Federal Funds sold . . . . . . . . . . . . . . . . . . . . . . . 721,158
Securities purchased under agreements to resell. . . . . . . . . 0
Loans and leases financing receivables:
Loans and leases, net of unearned income . . . . . . . . . . . . 6,678,430
LESS: Allowance for loan and leases losses . . . . . . . . . . . 78,268
LESS: Allocated transfer risk reserve. . . . . . . . . . . . . . 0
Loans and leases, net of unearned income, allowance,
and reserve. . . . . . . . . . . . . . . . . . . . . . . . . . . 6,600,162
Trading Assets . . . . . . . . . . . . . . . . . . . . . . . . . . 322
Premises and fixed assets (including capitalized leases) . . . . . 103,273
Other real estate owned. . . . . . . . . . . . . . . . . . . . . . 1,451
Investments in unconsolidated subsidiaries and
associated companies . . . . . . . . . . . . . . . . . . . . . . 0
Customers' liability to this bank on
acceptances outstanding. . . . . . . . . . . . . . . . . . . . . 31,046
Intangible assets. . . . . . . . . . . . . . . . . . . . . . . . . 56,034
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . 150,035
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . 9,032,357
<PAGE>
LIABILITIES
Deposits:
In domestic offices. . . . . . . . . . . . . . . . . . . . . . . 4,971,593
Noninterest-bearing. . . . . . . . . . . . . . . . . . . . . . . 1,147,812
Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . . 3,823,781
In foreign offices, Edge and Agreement subsidiaries,
and IBFs:. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,056,398
Noninterest-bearing. . . . . . . . . . . . . . . . . . . . . . . 0
Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . . 1,056,398
Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of its
Edge and Agreement subsidiaries, and in IBFs:
Federal funds purchased. . . . . . . . . . . . . . . . . . . . . 785,783
Securities sold under agreements to repurchase . . . . . . . . . 226,020
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . 54,613
Trading liabilities. . . . . . . . . . . . . . . . . . . . . . . . 0
Other borrowed money:. . . . . . . . . . . . . . . . . . . . . . . //////////
With original maturity of one year or less . . . . . . . . . . . 477,838
With original maturity of more than one year . . . . . . . . . . 185,000
Mortgage indebtedness and obligations under
capitalized leases . . . . . . . . . . . . . . . . . . . . . . . 0
Bank's liability on acceptances executed and outstanding . . . . . 31,046
Subordinated notes and debentures. . . . . . . . . . . . . . . . . 381,715
Other liabilities. . . . . . . . . . . . . . . . . . . . . . . . . 184,974
Total liabilities. . . . . . . . . . . . . . . . . . . . . . . . . 8,354,980
Limited-life preferred stock and related surplus . . . . . . . . . 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus. . . . . . . . . . . . . . . . 0
Common stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .70,400
Surplus. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110,854
Undivided profits and capital reserves . . . . . . . . . . . . . . . . 493,203
Net unrealized holding gains (losses) on
available-for-sale securities. . . . . . . . . . . . . . . . . . . . . 3,072
Cumulative foreign currency translation adjustments. . . . . . . . . . . . . 0
Total equity capital . . . . . . . . . . . . . . . . . . . . . . . . . 677,377
Total liabilities, limited-life preferred stock,
and equity capital . . . . . . . . . . . . . . . . . . . . . . . . 9,032,357
<PAGE>
EXHIBIT 8
A COPY OF ANY ORDER PURSUANT TO WHICH THE FOREIGN TRUSTEE IS AUTHORIZED TO ACT
AS SOLE TRUSTEE UNDER INDENTURES QUALIFIED OR TO BE QUALIFIED UNDER THE ACT
(NOT APPLICABLE)
<PAGE>
EXHIBIT 9
FOREIGN TRUSTEES ARE REQUIRED TO FILE A CONSENT TO SERVICE OF
PROCESS OF FORM F-X
(NOT APPLICABLE)
