FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
DQE, INC. DQE CAPITAL CORPORATION
(Exact name of registrant (Exact name of registrant
as specified in its charter) as specified in its charter)
PENNSYLVANIA DELAWARE
(State of incorporation or (State of incorporation or
organization) organization
25-1598483 25-1837152
(I.R.S. Employer (I.R.S. Employer
Identification No.) Identification No.)
CHERRINGTON CORPORATE CENTER, 411 SEVENTH AVENUE
SUITE 100 PITTSBURGH, PENNSYLVANIA
500 CHERRINGTON PARKWAY 15219-1905
CORAOPOLIS, PENNSYLVANIA 15108-3189
(Address of principal (Address of principal
executive offices) executive offices)
If this form relates to the registration of a class of securities
pursuant to Section 12(b) of the Exchange Act and is effective pursuant to
General Instruction A.(c), check the following box. [X]
If this form relates to the registration of a class of securities
pursuant to Section 12(g) of the Exchange Act and is effective pursuant to
General Instruction A.(d), check the following box. [ ]
Securities Act registration statement file number to which this form
relates: 333-80377 and 333-80377-01 (if applicable)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class to be so Name of each exchange on which
registered each class is to be registered
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8 3/8% Public Income Notes Due 2039, The New York Stock Exchange, Inc.
of DQE Capital Corporation
(being a tranche of DQE Capital
Corporation's Medium-Term Notes,
Series A)
Guaranties of DQE, Inc. The New York Stock Exchange, Inc.
Securities to be registered pursuant to Section 12(g) of the Act: None
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
-------------------------------------------------------
The securities being registered hereby are:
(i) the 83/8%, Public Income Notes Due 2039 (the
"PINES", being a tranche of Medium Term Notes, Series A) of
DQE Capital Corporation, a Delaware corporation.
(ii) the guaranties of the PINES by DQE, Inc., which
is the parent corporation of DQE Capital Corporation.
A specific description of the PINES and the related guaranty is
contained in Pricing Supplement No. 1 to the Prospectus which was included in
the Registration Statement on Form S-3 of DQE, Inc. and DQE Capital Corporation
which was declared effective by the Securities and Exchange Commission on July
30, 1999. Such Prospectus, as supplemented by a Prospectus Supplement dated
August 2, 1999, was filed pursuant to Rule 424(b) under the Securities Act of
1933 on August 17, 1999. Such Prospectus, as so supplemented and as further
supplemented by the aforesaid Pricing Supplement No.1, was filed pursuant to
Rule 424(b) of such Act on September 14, 1999. The specific description of the
PINES contained in such Pricing Supplement together with the related description
of the debt securities contained in such Prospectus and Prospectus Supplement
are incorporated herein by reference.
ITEM 2. EXHIBITS.
--------
The PINES described herein are to be listed on the New York Stock
Exchange. Accordingly, the following exhibits required in accordance with Part
II to the instructions as to exhibits to Form 8-A have been duly filed with the
New York Stock Exchange.
Exhibit
Number Description and Method of Filing
------- --------------------------------
1.1* Registration Statement on Form Previously filed as
S-3 filed by DQE, Inc. Registration
and DQE Capital Corporation Statement File Nos.
333-80377 and
333-80377-01
3.1* Articles of Incorporation of DQE, Exhibit 3.1 to DQE,
effective January 5, 1989. Inc.'s Annual
1989. Report on Form 10-K
for the year ended
December 31, 1989.
2
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Exhibit
Number Description and Method of Filing
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3.2* DQE Articles of Amendment, Exhibit 3.2 to DQE,
effective April 27, 1989, Inc.'s Annual Report
containing Restated Articles on Form 10-K for the
of Incorporation. year ended December
31, 1989.
3.3* DQE Articles of Amendment, Exhibit 3.2 to DQE,
effective February 8, 1993. Inc.'s Annual Report
on Form 10-K for the
year ended December
31, 1992.
3.4* DQE Articles of Amendment, Exhibit 3.4 to DQE,
effective May 24, 1994. Inc.'s Annual Report on
Form 10-K for the ended
December 31, 1994.
3.5* DQE Articles of Amendment, Exhibit 3.5 to DQE,
effective April 20, 1995. Inc.'s Annual
Report on Form 10-K
for the year ended
December 31, 1995.
3.6* By-Laws of DQE, as amended Exhibit 3.1 to DQE,
through June 29, 1999 Inc.'s Quarterly Report
and as currently in effect. on Form 10-Q for the
quarter ended June 30,
1999.
3.7* Certificate of Incorporation of Exhibit 3.7 to
DQE Capital Corporation. Registration Statement
(Form S-3) File Nos.
333-80377 and 333-80377
-01.
3.8* By-Laws of DQE Capital Exhibit 3.8 to
Corporation. Registration Statement
(Form S-3) File Nos.
333-80377 and 333-80377
-01.
4.1 Indenture, dated as of Filed herewith.
August 1, 1999, from DQE
Capital Corporation and DQE,
Inc. to The First National
Bank of Chicago, as Trustee
3
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Exhibit
Number Description and Method of Filing
------- --------------------------------
4.2 Form of Note Filed herewith.
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* Previously filed as indicated and incorporated herein by reference.
4
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrants have duly caused this registration statement to be
signed on their behalf by the undersigned, thereto duly authorized.
September 16, 1999 DQE, INC.
(Registrant)
By: /s/ Frosina Cordisco
___________________________________
Name: Frosina Cordisco
Title: Treasurer
DQE CAPITAL CORPORATION
(Registrant)
By: /s/ Frosina Cordisco
___________________________________
Name: Frosina Cordisco
Title: Treasurer
5
EXHIBIT 1.1
===================
DQE CAPITAL CORPORATION,
Issuer
and
DQE, Inc.,
Guarantor
to
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
---------
Indenture
Dated as of August 1, 1999
===================
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DQE CAPITAL CORPORATION
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF AUGUST 1, 1999
Trust Indenture Act Section Indenture Section
Section 310 (a)(1)............................ 809
(a)(2)............................ 809
(a)(3)............................ 815
(a)(4)............................ Not Applicable
(b)............................... 808, 810
Section 311 (a)............................... 813
(b)............................... 813
(c)............................... 813
Section 312 (a)............................... 901
(b)............................... 901
(c)............................... 901
Section 313 (a)............................... 902
(b)(1)............................ Not Applicable
(b)(2)............................ 902
(c)............................... 902
(d)............................... 902
Section 314 (a)............................... 902, 505
(a)(4)............................ 605
(b)............................... Not Applicable
(c)(1)............................ 102
(c)(2)............................ 102
(c)(3)............................ Not Applicable
(d)............................... Not Applicable
(e)............................... 102
Section 315 (a)............................... 801(a), 803
(b)............................... 802
(c)............................... 801(b)
(d)............................... 801(c)
(d)(1)............................ 801(a)(1), 801(c)(1)
(d)(2)............................ 801(c)(2)
(d)(3)............................ 801(c)(3)
(e)............................... 714
Section 316 (a)............................... 712, 713
(a)(1)(A)......................... 702, 712
(a)(1)(B)......................... 713
(a)(2)............................ Not Applicable
(b)............................... 708
(c)............................... 104
Section 317 (a)(1)............................ 703
(a)(2)............................ 705
(b)............................... 503
Section 318 (a)............................... 107
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TABLE OF CONTENTS
PAGE
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RECITALS................................................................. 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. General Definitions..................................... 1
Act ...................................................... 2
Affiliate.................................................... 2
Authenticating Agent......................................... 2
Authorized Officer........................................... 2
Board of Directors........................................... 2
Board Resolution............................................. 2
Business Day................................................. 2
Commission................................................... 2
Company...................................................... 3
Company Order" or "Company Request........................... 3
Corporate Trust Office....................................... 3
corporation.................................................. 3
Discount Security............................................ 3
Dollar" or "$................................................ 3
Eligible Obligations......................................... 3
Event of Default............................................. 3
Governmental Authority....................................... 3
Government Obligations....................................... 4
Guarantor.................................................... 4
Guarantor Order" or "Guarantor Request....................... 4
Guaranty..................................................... 4
Holder ...................................................... 4
Indenture.................................................... 4
Interest..................................................... 4
Interest Payment Date........................................ 4
Maturity..................................................... 4
Notice of Default............................................ 4
Officer's Certificate........................................ 5
Opinion of Counsel........................................... 5
Outstanding.................................................. 5
Paying Agent................................................. 6
Periodic Offering............................................ 6
Person ...................................................... 6
Place of Payment............................................. 6
Predecessor Security......................................... 6
Redemption Date.............................................. 6
Redemption Price............................................. 6
Regular Record Date.......................................... 6
Required Currency............................................ 6
Responsible Officer.......................................... 6
Securities................................................... 6
Security Register" and "Security Registrar................... 7
Special Record Date.......................................... 7
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TABLE OF CONTENTS
(continued)
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Stated Interest Rate......................................... 7
Stated Maturity.............................................. 7
Successor.................................................... 7
Tranche...................................................... 7
Trust Indenture Act.......................................... 7
Trustee...................................................... 7
United States................................................ 7
Unpaid Interest.............................................. 7
SECTION 102. Compliance Certificates and Opinions.................... 7
SECTION 103. Content and Form of Documents Delivered to Trustee...... 8
SECTION 104. Acts of Holders......................................... 9
SECTION 105. Notices, Etc. to Trustee, Company or Guarantor.......... 11
SECTION 106. Notice to Holders of Securities; Waiver................. 12
SECTION 107. Conflict with Trust Indenture Act....................... 12
SECTION 108. Effect of Headings and Table of Contents................ 12
SECTION 109. Successors and Assigns.................................. 12
SECTION 110. Separability Clause..................................... 12
SECTION 111. Benefits of Indenture................................... 13
SECTION 112. Governing Law........................................... 13
SECTION 113. Legal Holidays.......................................... 13
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally......................................... 13
SECTION 202. Form of Trustee's Certificate of Authentication......... 14
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.................... 14
SECTION 302. Denominations........................................... 18
SECTION 303. Execution, Dating, Authentication....................... 18
SECTION 304. Temporary Securities.................................... 20
SECTION 305. Registration, Registration of Transfer and Exchange..... 21
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities........ 22
SECTION 307. Payment of Interest; Interest Rights Preserved.......... 23
SECTION 308. Persons Deemed Owners................................... 24
SECTION 309. Cancellation by Security Registrar...................... 24
SECTION 310. Computation of Interest................................. 24
SECTION 311. Payment to Be in Proper Currency........................ 25
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TABLE OF CONTENTS
(continued)
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ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 401. Applicability of Article................................ 25
SECTION 402. Election to Redeem; Notice to Trustee................... 25
SECTION 403. Selection of Securities to Be Redeemed.................. 25
SECTION 404. Notice of Redemption.................................... 26
SECTION 405. Securities Payable on Redemption Date................... 27
SECTION 406. Securities Redeemed in Part............................. 27
ARTICLE FIVE
COVENANTS
SECTION 501. Payment of Securities................................... 28
SECTION 502. Maintenance of Office or Agency......................... 28
SECTION 503. Money for Securities Payments to Be Held in Trust....... 28
SECTION 504. Corporate Existence..................................... 30
SECTION 505. Annual Officer's Certificate............................ 30
SECTION 506. Waiver of Certain Covenants............................. 30
ARTICLE SIX
SATISFACTION AND DISCHARGE
SECTION 601. Satisfaction and Discharge of Securities................ 31
SECTION 602. Satisfaction and Discharge of Indenture................. 33
SECTION 603. Application of Trust Money.............................. 33
ARTICLE SEVEN
EVENTS OF DEFAULT; REMEDIES
SECTION 701. Events of Default....................................... 34
SECTION 702. Acceleration of Maturity; Rescission and Annulment...... 35
SECTION 703. Collection of Indebtedness and Suits for Enforcement
by Trustee.............................................. 36
SECTION 704. Application of Money Collected.......................... 37
SECTION 705. Trustee May File Proofs of Claim........................ 37
SECTION 706. Trustee May Enforce Claims without Possession of
Securities.............................................. 38
SECTION 707. Limitation on Suits..................................... 38
SECTION 708. Unconditional Right of Holders to Receive Principal,
Premium and Interest.................................... 39
SECTION 709. Restoration of Rights and Remedies...................... 39
SECTION 710. Rights and Remedies Cumulative.......................... 39
SECTION 711. Delay or Omission Not Waiver............................ 39
SECTION 712. Control by Holders of Securities........................ 40
SECTION 713. Waiver of Past Defaults................................. 40
SECTION 714. Undertaking for Costs................................... 40
SECTION 715. Waiver of Stay or Extension Laws........................ 41
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TABLE OF CONTENTS
(continued)
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ARTICLE EIGHT
THE TRUSTEE
SECTION 801. Certain Duties and Responsibilities..................... 41
SECTION 802. Notice of Defaults...................................... 42
SECTION 803. Certain Rights of Trustee............................... 42
SECTION 804. Not Responsible for Recitals or Issuance of Securities.. 43
SECTION 805. May Hold Securities..................................... 44
SECTION 806. Money Held in Trust..................................... 44
SECTION 807. Compensation and Reimbursement.......................... 44
SECTION 808. Disqualification; Conflicting Interests................. 45
SECTION 809. Corporate Trustee Required; Eligibility................. 45
SECTION 810. Resignation and Removal; Appointment of Successor....... 45
SECTION 811. Acceptance of Appointment by Successor.................. 47
SECTION 812. Merger, Conversion, Consolidation or Succession
to Business............................................. 48
SECTION 813. Preferential Collection of Claims against Company....... 48
SECTION 814. Appointment of Authenticating Agent..................... 49
ARTICLE NINE
LISTS OF HOLDERS; REPORTS BY TRUSTEE, COMPANY AND GUARANTOR
SECTION 901. Lists of Holders........................................ 50
SECTION 902. Reports by Trustee, Company and Guarantor............... 50
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE
OR OTHER TRANSFER
SECTION 1001. Company or Guarantor may Consolidate, etc.,
Only on Certain Terms.......................... 51
SECTION 1002. Successor Substituted................................... 51
SECTION 1003. Release of Company or Guarantor upon Conveyance or
Other Transfer................................. 52
SECTION 1004. Limitation.............................................. 52
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
SECTION 1101. Supplemental Indentures without Consent of Holders...... 53
SECTION 1102. Supplemental Indentures with Consent of Holders......... 54
SECTION 1103. Execution of Supplemental Indentures.................... 56
SECTION 1104. Effect of Supplemental Indentures....................... 56
SECTION 1105. Conformity with Trust Indenture Act..................... 56
SECTION 1106. Reference in Securities to Supplemental Indentures...... 56
SECTION 1107. Modification without Supplemental Indenture............. 56
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TABLE OF CONTENTS
(continued)
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ARTICLE TWELVE
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1201. Purposes for Which Meetings May Be Called............... 57
SECTION 1202. Call, Notice and Place of Meetings...................... 57
SECTION 1203. Persons Entitled to Vote at Meetings.................... 58
SECTION 1204. Quorum; Action.......................................... 58
SECTION 1205. Attendance at Meetings; Determination of Voting Rights;
Conduct and Adjournment of Meetings..................... 59
SECTION 1206. Counting Votes and Recording Action of Meetings......... 59
SECTION 1207. Action without Meeting.................................. 60
ARTICLE THIRTEEN
GUARANTY
SECTION 1301. Guaranty................................................ 60
SECTION 1302. Execution and Delivery of Guaranty...................... 61
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 1401. Liability Solely Corporate.............................. 62
Testimonium........................................................... 63
Signatures............................................................ 63
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<PAGE>
INDENTURE, dated as of August 1, 1999 among DQE CAPITAL CORPORATION, a
corporation duly organized and existing under the laws of the State of Delaware
(herein sometimes called the "Company"), DQE, INC., a corporation duly organized
and existing under the laws of the Commonwealth of Pennsylvania (herein
sometimes called the "Guarantor"), and THE FIRST NATIONAL BANK OF CHICAGO, a
national banking association duly organized and existing under the laws of the
United States of America, as trustee (herein sometimes 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 contemplated herein, each
with the Guaranty endorsed thereon; and all acts necessary to make this
Indenture a valid agreement of the Company have been performed.
RECITALS OF THE GUARANTOR
The Guarantor has duly authorized the execution and delivery of this
Indenture to provide for the guaranty of the Securities provided for herein; and
all acts necessary to make this Indenture a valid agreement of the Guarantor
have been performed.
NOW, THEREFORE, THIS INDENTURE WITNESSETH that in consideration of the
premises and of the purchase of the Securities by the Holders thereof, it is
hereby covenanted and agreed, for the equal and ratable benefit of all Holders
of the Securities or of series thereof (except as otherwise contemplated
herein), as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. GENERAL DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(b) all terms used herein without definition which are
defined in the Trust Indenture Act, either directly or by reference
therein, have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted
accounting principles in the United States, and, except as otherwise
herein expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted in the United States at the date of such computation or, at
the election of the Company or the Guarantor, as the case requires, at
the date of the execution and delivery of this Indenture;
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(d) any reference to an "Article" or a "Section" refers to
an Article or a Section, as the case may be, of this Indenture; and
(e) 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 of a Security, has the
meaning specified in Section 104.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"CONTROL" when used with respect to any specified Person means the power to
direct generally 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 (other than the Company, the
Guarantor or any Affiliate of either thereof) authorized by the Trustee to act
on behalf of the Trustee to authenticate the Securities of one or more series.
"AUTHORIZED OFFICER" means the Chairman of the Board, the President,
any Vice President, the Treasurer, any Assistant Treasurer or the Corporate
Secretary or any other duly authorized officer, agent or attorney-in-fact of the
Company or the Guarantor named in an Officer's Certificate of the Company or the
Guarantor, as the case requires, signed by any of the aforesaid corporate
officers.
"BOARD OF DIRECTORS" means either the board of directors of the
Company or the Guarantor, as the case requires, or any committee thereof duly
authorized to act in respect of matters relating to this Indenture.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Corporate Secretary or an Assistant Corporate Secretary of the Company or the
Guarantor to have been duly adopted by the Board of Directors of the Company or
the Guarantor, as the case requires, and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"BUSINESS DAY", when used with respect to a Place of Payment
or any other particular location specified in the Securities or this Indenture,
means any day, other than a Saturday or Sunday, which is not a day on which
banking institutions or trust companies in such Place of Payment or other
location are generally authorized or required by law, regulation or executive
order to remain closed, except as may be otherwise specified as contemplated by
Section 301.
"COMMISSION" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the date of the execution and
delivery of this Indenture such Commission is not existing and performing the
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duties now assigned to it under the Trust Indenture Act, then the body, if any,
performing such duties at such time.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"COMPANY ORDER" or "COMPANY REQUEST" means a written order or request,
as the case may be, signed in the name of the Company by an Authorized Officer
and delivered to the Trustee.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date of the execution and delivery of this
Indenture is located at One First National Plaza, Suite 0126, Chicago, Illinois
60670-0126.
"CORPORATION" means a corporation, association, company, joint stock
company or business trust.
"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 702. "INTEREST" with
respect to a Discount Security means interest, if any, borne by such Security at
a Stated Interest Rate.
"DOLLAR" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
"ELIGIBLE OBLIGATIONS" means:
(a) with respect to Securities denominated in Dollars,
Government Obligations; or
(b) with respect to Securities denominated in a currency
other than Dollars or in a composite currency, such other obligations
or instruments as shall be specified with respect to such Securities,
as contemplated by Section 301.
"EVENT OF DEFAULT" has the meaning specified in Section 701.
"FAIR VALUE" has the meaning specified in Section 1005.
"GOVERNMENTAL AUTHORITY" means the government of the United States or
of any State or Territory thereof or of the District of Columbia or of any
county, municipality or other political subdivision of any thereof, or any
department, agency, authority or other instrumentality of any of the foregoing.
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"GOVERNMENT OBLIGATIONS" means:
(a) direct obligations of, or obligations the principal of
and interest on which are unconditionally guaranteed by, the United
States entitled to the benefit of the full faith and credit thereof;
and
(b) certificates, depositary receipts or other instruments
which evidence a direct ownership interest in obligations described in
clause (a) above or in any specific interest or principal payments due
in respect thereof; provided, however, that the custodian of such
obligations or specific interest or principal payments shall be a bank
or trust company (which may include the Trustee or any Paying Agent)
subject to Federal or State supervision or examination with a combined
capital and surplus of at least Fifty Million Dollars ($50,000,000);
and provided, further, that except as may be otherwise required by
law, such custodian shall be obligated to pay to the holders of such
certificates, depositary receipts or other instruments the full amount
received by such custodian in respect of such obligations or specific
payments and shall not be permitted to make any deduction therefrom.
"GUARANTOR" means the Person named as "Guarantor" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall include such successor Person.
"GUARANTOR ORDER" or "GUARANTOR REQUEST" means a written order or
request, as the case may be, signed in the name of the Guarantor by an
Authorized Officer of the Guarantor and delivered to the Trustee.
"GUARANTY" means the guaranty of the Guarantor endorsed on each
Security authenticated and delivered under this Indenture and shall include the
guaranty set forth in Section 1301.
"HOLDER" means a Person in whose name a Security is registered in the
Security Register.
"INDENTURE" means this instrument as originally executed and delivered
and as it may from time to time be amended and/or supplemented by one or more
indentures or other instruments supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of particular series of
Securities established as contemplated by Section 301.
"INDEPENDENT EXPERT'S CERTIFICATE" has the meaning specified in
Section 1005.
"INTEREST PAYMENT DATE", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"MATURITY", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as provided in such Security or in this Indenture, whether at the
Stated Maturity, by declaration of acceleration, upon call for redemption or
otherwise.
"NOTICE OF DEFAULT" has the meaning specified in Section 701(c).
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"OFFICER'S CERTIFICATE" means a certificate signed by an Authorized
Officer of the Company or the Guarantor, as the case requires, and delivered to
the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be
counsel for the Company or the Guarantor or other counsel acceptable to the
Trustee and who may be an employee or Affiliate of the Company.
"OUTSTANDING", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(a) Securities theretofore canceled or delivered to the
Trustee for cancellation;
(b) Securities deemed to have been paid for all purposes of
this Indenture in accordance with Section 601 (whether or not the
Company's indebtedness in respect thereof shall be satisfied and
discharged for any other purpose); and
(c) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it and the Company that such
Securities are held by a bona fide purchaser or purchasers in whose
hands such Securities are valid obligations of the Company;
provided, however, that in determining whether or not the Holders of the
requisite principal amount of the Securities Outstanding under this Indenture,
or the Outstanding Securities of any series or Tranche, have given or made any
request, demand, authorization, direction, notice, consent or waiver hereunder
or whether or not a quorum is present at a meeting of Holders of Securities,
(x) Securities owned by the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other
obligor (unless the Company, such obligor or such Affiliate owns all
Securities Outstanding under this Indenture, or all Outstanding
Securities of each such series and each such Tranche, as the case may
be, determined without regard to this clause (x)) shall be disregarded
and deemed not to be Outstanding, except that, in determining whether
the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver or upon
any such determination as to the presence of a quorum, only Securities
which the Trustee knows to be so owned shall be so disregarded;
provided, however, that Securities so owned which have been pledged in
good faith may be regarded as Outstanding if it is established to the
reasonable satisfaction of the Trustee that the pledgee, and not the
Company, or any such other obligor or Affiliate of either thereof, has
the 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; and
(y) the principal amount of a Discount Security that shall
be deemed to be Outstanding for such purposes shall be the amount of
the principal thereof that would be due and payable as of the date of
such determination upon a declaration of acceleration of the Maturity
thereof pursuant to Section 702;
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provided, further, that in the case of any Security the principal of which is
payable from time to time without presentment or surrender, the principal amount
of such Security that shall be deemed to be Outstanding at any time for all
purposes of this Indenture shall be the original principal amount thereof less
the aggregate amount of principal thereof theretofore paid.
"PAYING AGENT" means any Person, including the Company or the
Guarantor, authorized to pay the principal of, and premium, if any, or interest,
if any, on any Securities on behalf of the Company or the Guarantor.
"PERIODIC OFFERING" means an offering of Securities of a series from
time to time any or all of the specific terms of which Securities, including
without limitation the rate or rates of interest, if any, thereon, the Stated
Maturity or Maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Company or its agents from time to
time subsequent to the initial request for the authentication and delivery of
such Securities by the Trustee, as contemplated in Section 301 and clause (b) of
Section 303.
"PERSON" means any individual, corporation, partnership, limited
liability partnership, limited liability company, joint venture, trust or
unincorporated organization or any Governmental Authority.
"PLACE OF PAYMENT", when used with respect to the Securities of any
series, or Tranche thereof, means the place or places, specified as contemplated
by Section 301, at which, subject to Section 502, principal of and premium, if
any, and interest, if any, on the Securities of such series or Tranche are
payable.
"PREDECESSOR SECURITY" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed (to the extent
lawful) to evidence the same debt as the mutilated, destroyed, lost or stolen
Security.
"REDEMPTION DATE", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"REDEMPTION PRICE", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"REGULAR RECORD DATE" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"REQUIRED CURRENCY" has the meaning specified in Section 311.
"RESPONSIBLE OFFICER", when used with respect to the Trustee, means
any officer of the Trustee assigned by the Trustee to administer its corporate
trust matters.
"SECURITIES" means any bonds, notes and other evidences of
indebtedness authenticated and delivered under this Indenture.
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"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective
meanings specified in Section 305.
"SPECIAL RECORD DATE" for the payment of any Unpaid Interest on the
Securities of any series means a date fixed by the Trustee pursuant to
Section 307.
"STATED INTEREST RATE" means a rate (whether fixed or variable) at
which an obligation by its terms is stated to bear simple interest. Any
calculation or other determination to be made under this Indenture by reference
to the Stated Interest Rate on an obligation shall be made (a) if the Company's
obligations in respect of any other indebtedness shall be evidenced or secured
in whole or in part by such obligation, by reference to the lower of the Stated
Interest Rate on such obligation and the Stated Interest Rate on such other
indebtedness and (b) without regard to the effective interest cost to the
Company of such obligation or of any such other indebtedness.
"STATED MATURITY", when used with respect to any obligation or any
installment of principal thereof or interest thereon, means the date on which
the principal of such obligation or such installment of principal or interest is
stated to be due and payable (without regard to any provisions for redemption,
prepayment, acceleration, purchase or extension).
"SUCCESSOR" has the meaning set forth in Section 1001.
"TRANCHE" means a group of Securities which (a) are of the same series
and (b) have identical terms except as to principal amount and/or date of
issuance.
"TRUST INDENTURE ACT" means, as of any time, the Trust Indenture Act
of 1939, or any successor statute, as in effect at such time.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor trustee shall have become such
with respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean or include
each Person who is then a Trustee hereunder, and if at any time there is more
than one such Person, acting as trustee hereunder, "Trustee" shall mean each
such Person so acting.
"UNITED STATES" means the United States of America, its Territories,
its possessions and other areas subject to its political jurisdiction.
"UNPAID INTEREST" has the meaning specified in Section 307.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided in this Indenture, upon any
application or request by the Company or the Guarantor to the Trustee to take
any action under any provision of this Indenture, the Company and the Guarantor
each shall furnish to the Trustee an Officer's Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have been
complied with, it being understood that in the case of any such application or
request as to which the furnishing of such documents is specifically required by
any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
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Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such
individual, such individual has made such examination or investigation
as is necessary to enable such individual to express an informed
opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. CONTENT AND FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
(a) Any Officer's Certificate may be based (without further
examination or investigation), insofar as it relates to or is dependent upon
legal matters, upon an opinion of, or representations by, counsel, unless, in
any case, such officer has actual knowledge that the certificate or opinion or
representations with respect to the matters upon which such Officer's
Certificate may be based as aforesaid are erroneous.
Any Opinion of Counsel may be based (without further examination or
investigation), insofar as it relates to or is dependent upon factual matters,
information with respect to which is in the possession of the Company or the
Guarantor, upon a certificate of, or representations by, an officer or officers
of the Company or the Guarantor, as the case requires, unless such counsel has
actual knowledge that the certificate or opinion or representations with respect
to the matters upon which his opinion may be based as aforesaid are erroneous.
In addition, any Opinion of Counsel may be based (without further examination or
investigation), insofar as it relates to or is dependent upon matters covered in
an Opinion of Counsel rendered by other counsel, upon such other Opinion of
Counsel, unless such counsel has actual knowledge that the Opinion of Counsel
rendered by such other counsel with respect to the matters upon which his
Opinion of Counsel may be based as aforesaid are erroneous. If, in order to
render any Opinion of Counsel provided for herein, the signer thereof shall deem
it necessary that additional facts or matters be stated in any Officer's
Certificate provided for herein, then such certificate may state all such
additional facts or matters as the signer of such Opinion of Counsel may
request.
(b) 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
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or give an opinion as to such matters in one or several documents. Where (i) any
Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this
Indenture, or (ii) two or more Persons are each required to make, give or
execute any such application, request, consent, certificate, statement, opinion
or other instrument, any such applications, requests, consents, certificates,
statements, opinions or other instruments may, but need not, be consolidated and
form one instrument.
(c) Whenever, subsequent to the receipt by the Trustee of any Board
Resolution, Officer's Certificate, Opinion of Counsel or other document or
instrument, a clerical, typographical or other inadvertent or unintentional
error or omission shall be discovered therein, a new document or instrument may
be substituted therefor in corrected form with the same force and effect as if
originally filed in the corrected form and, irrespective of the date or dates of
the actual execution and/or delivery thereof, such substitute document or
instrument shall be deemed to have been executed and/or delivered as of the date
or dates required with respect to the document or instrument for which it is
substituted. Anything in this Indenture to the contrary notwithstanding, if any
such corrective document or instrument indicates that action has been taken by
or at the request of the Company which could not have been taken had the
original document or instrument not contained such error or omission, the action
so taken shall not be invalidated or otherwise rendered ineffective but shall be
and remain in full force and effect, except to the extent that such action was a
result of willful misconduct or bad faith. Without limiting the generality of
the foregoing, any Securities issued under the authority of such defective
document or instrument shall nevertheless be the valid obligations of the
Company entitled to the benefits provided by this Indenture equally and ratably
with all other Outstanding Securities, except as aforesaid.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
election, waiver or other action provided by this Indenture to be made, given or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing or, alternatively, may be embodied in and evidenced by the
record of Holders voting in favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders duly called and held in
accordance with the provisions of Article Twelve, or a combination of such
instruments and any such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record
or both are delivered to the Trustee and, where it is hereby expressly required,
to the Company and the Guarantor. Such instrument or instruments and any such
record (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "ACT" of the Holders signing such instrument or
instruments and so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the holding by any
Person of a Security, shall be sufficient for any purpose of this Indenture and
(subject to Section 801) conclusive in favor of the Trustee, the Company and the
Guarantor, if made in the manner provided in this Section. The record of any
meeting of Holders shall be proved in the manner provided in Section 1206.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof or may be
proved in any other manner which the Trustee and the Company deem sufficient.
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Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.
(c) The ownership of Securities and principal amount (except as
otherwise contemplated in clause (y) of the first proviso to the definition of
Outstanding) and serial numbers of Securities held by any Person, and the date
of holding the same, shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent,
election, waiver or other Act of a Holder shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee, the Company or the
Guarantor in reliance thereon, whether or not notation of such action is made
upon such Security.
(e) Until such time as written instruments shall have been delivered
to the Trustee with respect to the requisite percentage of principal amount of
Securities for the action contemplated by such instruments, any such instrument
executed and delivered by or on behalf of a Holder may be revoked with respect
to any or all of such Securities by written notice by such Holder or any
subsequent Holder, proven in the manner in which such instrument was proven.
(f) Securities of any series, or any Tranche thereof, authenticated
and delivered after any Act of Holders may, and shall if required by the
Trustee, bear a notation in form approved by the Trustee as to any action taken
by such Act of Holders. If the Company shall so determine, new Securities of any
series, or any Tranche thereof, so modified as to conform, in the opinion of the
Trustee and the Company, to such action may be prepared and executed by the
Company and the Guarantor and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series or Tranche.
(g) Each of the Company and the Guarantor may, at its option, by
Company Order or Guarantor Order, as the case requires, fix in advance a record
date for the determination of Holders entitled to give any request, demand,
authorization, direction, notice, consent, waiver or other Act solicited by the
Company, but neither the Company nor the Guarantor shall have any obligation to
do so; provided, however, that neither the Company nor the Guarantor may fix a
record date for the giving or making of any notice, declaration, request or
direction referred to in the next sentence. In addition, the Trustee may, at its
option, fix in advance a record date for the determination of Holders of
Securities of any series entitled to join in the giving or making of any Notice
of Default, any declaration of acceleration referred to in Section 702, any
request to institute proceedings referred to in Section 707 or any direction
referred to in Section 712, in each case with respect to Securities of such
series. If any such record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act, or such notice, declaration,
request or direction, may be given before or after such record date, but only
the Holders of record at the close of business on the record date shall be
deemed to be Holders for the purposes of determining (i) whether Holders of the
requisite proportion of the Outstanding Securities have authorized or agreed or
consented to such Act (and for that purpose the Outstanding Securities shall be
computed as of the record date) and/or (ii) which Holders may revoke any such
Act (notwithstanding subsection (e) of this Section ); and any such Act, given
as aforesaid, shall be effective whether or not the Holders which authorized or
agreed or consented to such Act remain Holders after such record date and
whether or not the Securities held by such Holders remain Outstanding after such
record date.
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SECTION 105. NOTICES, ETC. TO TRUSTEE, COMPANY OR GUARANTOR.
Any request, demand, authorization, direction, notice, consent,
election, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with, the
Trustee by any Holder or by the Company or the Guarantor, or the Company or the
Guarantor by the Trustee or by any Holder, shall be sufficient for every purpose
hereunder (unless otherwise expressly provided herein) if the same shall be in
writing and delivered personally to an officer or other responsible employee of
such party, or transmitted by facsimile transmission, telex or other direct
written electronic means to the telephone number or other electronic
communications address set forth for such party below or otherwise as such party
shall from time to time designate, or transmitted by registered mail, charges
prepaid, to the applicable address set forth for such party below or to such
other address as such party may from time to time designate:
If to the Trustee, to:
The First National Bank of Chicago
One N. State Street, 9th Floor
Chicago, Illinois 60670-0126
Attention: Corporate Trust Administration
Telephone: (312) 407-3124
Facsimile: (312) 407-1708
If to the Company, to:
DQE Capital Corporation
411 Seventh Avenue
Pittsburgh, Pennsylvania 15219-1905
Attention: Treasurer
Telephone: (412) 393-6700
Facsimile: (412) 393-6004
If to the Guarantor, to:
DQE, Inc.
Cherrington Corporate Center, Suite 100
500 Cherrington Parkway
Coraopolis, Pennsylvania 15108-3189
Attention: Treasurer
Telephone: (412) 262-4700
Facsimile: (412)
Any communication contemplated herein shall be deemed to have been
made, given, furnished and filed if personally delivered, on the date of
delivery, if transmitted by facsimile transmission, telex or other direct
written electronic means, on the date of transmission, and if transmitted
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by registered mail, on the date of receipt. The Trustee shall promptly deliver
to the Guarantor a copy of any such communication delivered by the Trustee to
the Company.
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given, and shall be deemed given, to Holders if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at the
address of such Holder as it appears in the Security Register, not later than
the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice to
Holders by mail, then such notification as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every purpose
hereunder. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders.
Any notice required by this Indenture may be waived in writing by the
Person entitled to receive such notice, either before or after the event
otherwise to be specified therein, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision of this Indenture limits, qualifies or conflicts with
another provision hereof which is required or deemed to be included in this
Indenture by, or is otherwise governed by, any provision of the Trust Indenture
Act, such other provision shall control; and if any provision hereof otherwise
conflicts with the Trust Indenture Act, the Trust Indenture Act shall control.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings in this Indenture and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company or the
Guarantor shall bind its successors and assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture, the Securities or the
Guaranties shall be held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
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SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture, the Securities or the Guaranties, express
or implied, shall give to any Person, other than the parties hereto, their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture, the Securities and the Guaranties shall be governed by
and construed in accordance with the law of the State of New York (including
without limitation Section 5-1401 of the New York General Obligations Law or any
successor to such statute), except to the extent that the Trust Indenture Act
shall be applicable.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
other than a contrary provision in the Securities of any series, or any Tranche
thereof, or in the indenture supplemental hereto, Board Resolution or Officer's
Certificate which establishes the terms of the Securities of such series or
Tranche) payment of interest or principal and premium, if any, need not be made
at such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if made
on the Interest Payment Date or Redemption Date, or at the Stated Maturity, and,
if such payment is made or duly provided for on such Business Day, no interest
shall accrue on the amount so payable for the period from and after such
Interest Payment Date, Redemption Date or Stated Maturity, as the case may be,
to such Business Day.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The definitive Securities of each series and the Guaranties to be
endorsed thereon as contemplated by Article Thirteen shall be in substantially
the form or forms established in the Officer's Certificate, the indenture
supplemental hereto or the Board Resolution establishing such series, in any
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities or Guaranties, as the case requires, as
evidenced by their execution thereof. If the form or forms of Securities of any
series or the Guaranties to be endorsed thereon are established in an Officer's
Certificate or a Board Resolution, such Officer's Certificate or Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 303 for the authentication and delivery of
such Securities.
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The Securities of each series shall be issuable in registered form
without coupons. The definitive Securities and Guaranties endorsed thereon shall
be produced in such manner as shall be determined by the officers executing such
Securities or Guaranties, as evidenced by their execution thereof.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in substantially
the form set forth below:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
--------------------------------------------
as Trustee
By:
-----------------------------------------
Authorized Officer
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more series.
Subject to the last paragraph of this Section, prior to the authentication and
delivery of Securities of any series there shall be established by specification
in an Officer's Certificate, a supplemental indenture or a Board Resolution of
the Company:
(a) the title of the Securities of such series (which shall
distinguish the Securities of such series from Securities of all other
series);
(b) any limit upon the aggregate principal amount of the
Securities of such series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of such series pursuant to Section 304, 305,
306, 406 or 1106 and except for any Securities which, pursuant to
Section 303, are deemed never to have been authenticated and delivered
hereunder);
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(c) the Persons (without specific identification) to whom
interest, if any, on Securities of such series, or any Tranche
thereof, shall be payable, if other than the Persons in whose names
such Securities (or one or more Predecessor Securities) are registered
at the close of business on the Regular Record Date for such interest;
(d) the date or dates on which the principal of the
Securities of such series or any Tranche thereof, is payable or any
formulary or other method or other means by which such date or dates
shall be determined, by reference to an index or other fact or event
ascertainable outside of this Indenture or otherwise (without regard
to any provisions for redemption, prepayment, acceleration, purchase
or extension); and the right, if any, to extend the Maturity of the
Securities of such series, or any Tranche thereof, and the duration of
any such extension;
(e) the rate or rates at which the Securities of such
series, or any Tranche thereof, shall bear interest, if any (including
the rate or rates at which overdue principal shall bear interest, and
the right, if any, to extend the interest payment periods and the
duration of any such extension; if different from the rate or rates at
which such Securities shall bear interest prior to Maturity, and, if
applicable, the rate or rates at which overdue premium or interest
shall bear interest, if any), or any formulary or other method or
other means by which such rate or rates shall be determined by
reference to an index or other fact or event ascertainable outside of
this Indenture or otherwise; the date or dates from which such
interest shall accrue; the Interest Payment Dates on which such
interest shall be payable and the Regular Record Date, if any, for the
interest payable on such Securities on any Interest Payment Date; the
basis of computation of interest, if other than as provided in Section
310; and the right, if any, to extend the interest payment periods and
the duration of any such extension;
(f) the place or places at which and/or the methods (if
other than as provided elsewhere in this Indenture) by which (i) the
principal of and premium, if any, and interest, if any, on Securities
of such series, or any Tranche thereof, shall be payable, (ii)
registration of transfer of Securities of such series, or any Tranche
thereof, may be effected, (iii) exchanges of Securities of such
series, or any Tranche thereof, may be effected and (iv) notices and
demands to or upon the Company or the Guarantor in respect of the
Securities of such series, or any Tranche thereof, and this Indenture
may be served; the Security Registrar and any Paying Agent or Agents
for such series or Tranche; and, if such is the case, that the
principal of such Securities shall be payable without the presentment
or surrender thereof;
(g) the period or periods within which, or the date or dates
on which, the price or prices at which and the terms and conditions
upon which the Securities of such series, or any Tranche thereof, may
be redeemed, in whole or in part, at the option of the Company;
(h) the obligation or obligations, if any, of the Company to
redeem or purchase the Securities of such series, or any Tranche
thereof, pursuant to any sinking fund or other mandatory redemption
provisions or at the option of a Holder thereof and the period or
periods within which or the date or dates on which, the price or
prices at which and the terms and conditions upon which such
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Securities shall be redeemed or purchased, in whole or in part,
pursuant to such obligation, and applicable exceptions to the
requirements of Section 404 in the case of mandatory redemption or
redemption at the option of the Holder;
(i) the denominations in which Securities of such series, or
any Tranche thereof, shall be issuable if other than denominations of
One Thousand Dollars ($1,000) and any integral multiple thereof;
(j) the currency or currencies, including composite
currencies, in which payment of the principal of or premium, if any,
or interest, if any, on the Securities of such series, or any Tranche
thereof, shall be payable (if other than in Dollars) and the formulary
or other method or other means by which the equivalent of any such
amount in Dollars is to be determined for any purpose, including for
the purpose of determining the principal amount of such Securities
deemed to be Outstanding at any time;
(k) if the principal of or premium, if any, or interest, if
any, on the Securities of such series, or any Tranche thereof, are to
be payable, at the election of the Company or a Holder thereof, in a
coin or currency other than that in which the Securities are stated to
be payable, the period or periods within which, and the terms and
conditions upon which, such election may be made;
(l) if the principal of or premium, if any, or interest, if
any, on the Securities of such series, or any Tranche thereof, are to
be payable, or are to be payable at the election of the Company or a
Holder thereof, in securities or other property, the type and amount
of such securities or other property, or the formulary or other method
or other means by which such amount shall be determined, and the
period or periods within which, and the terms and conditions upon
which, any such election may be made;
(m) if the amount payable in respect of the principal of or
premium, if any, or interest, if any, on the Securities of such
series, or any Tranche thereof, may be determined with reference to an
index or other fact or event ascertainable outside of this Indenture,
the manner in which such amounts shall be determined (to the extent
not established pursuant to clause (e) of this paragraph);
(n) if other than the entire principal amount thereof, the
portion of the principal amount of Securities of such series, or any
Tranche thereof, which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 702;
(o) the terms, if any, pursuant to which the Securities of
such series, or any Tranche thereof, may be converted into or
exchanged for shares of capital stock or other securities of the
Company or any other Person;
(p) the obligations or instruments, if any, which shall be
considered to be Eligible Obligations in respect of the Securities of
such series, or any Tranche thereof, denominated in a currency other
than Dollars or in a composite currency, and any additional or
alternative provisions for the reinstatement of the Company's
indebtedness in respect of such Securities after the satisfaction and
discharge thereof as provided in Section 601;
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(q) if the Securities of such series, or any Tranche
thereof, are to be issued in global form, (i) any limitations on the
rights of the Holder or Holders of such Securities to transfer or
exchange the same or to obtain the registration of transfer thereof,
(ii) any limitations on the rights of the Holder or Holders thereof to
obtain certificates therefor in definitive form in lieu of temporary
form and (iii) any and all other matters incidental to such
Securities;
(r) if the Securities of such series, or any Tranche
thereof, are to be issuable as bearer securities, any and all matters
incidental thereto which are not specifically addressed in a
supplemental indenture as contemplated by clause (f) of Section 1101;
(s) to the extent not established pursuant to clause (q) of
this paragraph, any limitations on the rights of the Holders of the
Securities of such Series, or any Tranche thereof, to transfer or
exchange such Securities or to obtain the registration of transfer
thereof; and if a service charge will be made for the registration of
transfer or exchange of Securities of such series, or any Tranche
thereof, the amount or terms thereof;
(t) any exceptions to Section 113, or variation in the
definition of Business Day, with respect to the Securities of such
series, or any Tranche thereof;
(u) any terms of the Guaranties with respect to the
Securities of such series, or any Tranche thereof, in addition to
those set forth in Section 1301, or any exceptions to those set forth
in Section 1301; and
(v) any other terms of the Securities of such series, or any
Tranche thereof.
With respect to Securities of a series subject to a Periodic Offering,
the Officer's Certificate, the indenture supplemental hereto or the Board
Resolution which establishes such series, as the case may be, may provide
general terms or parameters for Securities of such series and provide either
that the specific terms of Securities of such series, or any Tranche thereof,
shall be specified in a Company Order or that such terms shall be determined by
the Company or its agents in accordance with procedures specified in a Company
Order as contemplated by clause (b) of Section 303.
Unless otherwise specified with respect to a series of Securities as
contemplated by Section 301(b), any limit upon the aggregate principal amount of
a series of Securities may be increased without the consent of any Holders and
additional Securities of such series may be authenticated and delivered up to
the limit upon the aggregate principal amount authorized with respect to such
series as so increased.
Anything herein to the contrary notwithstanding, the Trustee shall be
under no obligation to authenticate and deliver Securities of any series the
terms of which, established as contemplated by this Section, would affect the
rights, duties, obligations, liabilities or immunities of the Trustee under this
Indenture or otherwise.
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SECTION 302. DENOMINATIONS.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, or any Tranche thereof, the Securities of each
series shall be issuable in denominations of One Thousand Dollars ($1,000) and
any integral multiple thereof.
SECTION 303. EXECUTION, DATING, AUTHENTICATION.
Unless otherwise specified as contemplated by Section 301 with respect
to any series of Securities, or any Tranche thereof, the Securities shall be
executed on behalf of the Company by an Authorized Officer, and may have the
corporate seal of the Company affixed thereto or reproduced thereon and attested
by any other Authorized Officer. The signature of any or all of these officers
on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at the time of execution Authorized Officers shall bind the Company,
notwithstanding that such individuals, or any of them, have ceased to be such
Authorized Officers prior to the authentication and delivery of such Securities
or were not such Authorized Officers at the date of such Securities.
Unless otherwise specified as contemplated by Section 301 with respect
to any series of Securities, or any Tranche thereof, the Guaranties to be
endorsed on the Securities shall be executed and delivered in accordance with
the provisions of Section 1302.
The Trustee shall authenticate and deliver Securities of a series,
with the Guaranties endorsed thereon, for original issue, at one time or from
time to time in accordance with the Company Order referred to below, upon
receipt by the Trustee of:
(a) the instrument or instruments establishing the form or
forms and terms of the Securities of such series and the Guaranties to
be endorsed thereon, as provided in Sections 201 and 301;
(b) a Company Order requesting the authentication and
delivery of such Securities and, to the extent that the terms of such
Securities and the Guaranties to be endorsed thereon shall not have
been established in an Officer's Certificate, an indenture
supplemental hereto or a Board Resolution, all as contemplated by
Sections 201 and 301, either (i) establishing such terms or (ii) in
the case of Securities of a series subject to a Periodic Offering,
specifying procedures, acceptable to the Trustee, by which such terms
are to be established (which procedures may provide, to the extent
acceptable to the Trustee, for authentication and delivery pursuant to
oral or electronic instructions from the Company or any agent or
agents thereof, which oral instructions are to be promptly confirmed
electronically or in writing), in either case in accordance with the
instrument or instruments delivered pursuant to clause (a) above;
(c) A Guarantor Order approving the terms and delivery of
the Guaranties to be endorsed on such Securities as contemplated by
the Company Order delivered pursuant to clause (b) above;
(d) Securities of such series, each executed on behalf of
the Company by an Authorized Officer and having a Guaranty endorsed
thereon executed on behalf of the Guarantor by an Authorized Officer;
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(e) an Opinion of Counsel to the effect that:
(i) (A) the form or forms of such Securities have been duly
authorized by the Company, (B) the form or forms of the Guaranties
endorsed thereon have been duly authorized by the Guarantor and (C)
the forms of such Securities and such Guaranties have been established
in conformity with the provisions of this Indenture;
(ii) (A) the terms of such Securities have been duly
authorized by the Company, (B) the terms of such Guaranties have been
duly authorized by the Guarantor and (C) the terms of such Securities
and such Guaranties have been established in conformity with the
provisions of this Indenture; and
(iii) when such Securities shall have been authenticated and
delivered by the Trustee and issued and delivered by the Company in
the manner and subject to any conditions specified in such Opinion of
Counsel, such Securities and the Guaranties endorsed thereon will
constitute valid obligations of the Company and the Guarantor,
respectively, entitled to the benefits provided by this Indenture;
provided, however, that, with respect to the Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication and
delivery of the Securities of such series (provided that such Opinion of Counsel
addresses the authentication and delivery of all Securities of such series), and
that, in lieu of the opinions described in clauses (ii) and (iii) above, such
Counsel may opine that:
(x) when the terms of such Securities and the Guaranties to
be endorsed thereon shall have been established pursuant to a Company
Order or Orders and, if applicable, a Guarantor Order or Orders, or
pursuant to such procedures as may be specified from time to time by a
Company Order or Orders, and, if applicable, a Guarantor Order or
Orders, all as contemplated by and in accordance with the instrument
or instruments delivered pursuant to clause (a) above, such terms will
have been duly authorized by the Company and the Guarantor,
respectively, and will have been established in conformity with the
provisions of this Indenture; and
(y) when such Securities shall have been (1) authenticated
and delivered by the Trustee in accordance with this Indenture and the
Company Order or Orders and Guarantor Order or Orders, if any, or the
specified procedures referred to in clause (x) above and (2) issued
and delivered by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, such Securities and
the Guaranties endorsed thereon will constitute valid obligations of
the Company and the Guarantor, respectively, entitled to the benefits
provided by this Indenture.
With respect to Securities of a series subject to a Periodic Offering,
the Trustee may conclusively rely, as to the authorization by the Company and
the Guarantor of any of such Securities and the Guaranties endorsed thereon,
respectively, the forms and terms thereof, the validity thereof and the
compliance of the authentication and delivery thereof with the terms and
conditions of this Indenture, upon the Opinion or Opinions of Counsel and the
certificates and other documents delivered pursuant to this Article at or prior
to the time of the first authentication and delivery of Securities of such
series until any of such opinions, certificates or other documents have been
superseded or revoked or expire by their terms. In connection with the
authentication and delivery of Securities of a series subject to a Periodic
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Offering, the Trustee shall be entitled to assume that the Company's
instructions to authenticate and deliver such Securities, and the Guarantor's
approval of the delivery of the Guaranties thereon, do not violate any
applicable law or any applicable rule, regulation or order of any Governmental
Authority having jurisdiction over the Company or the Guarantor.
If the form or terms of the Securities of any series have been
established by or pursuant to an Officer's Certificate or Board Resolution as
permitted by Sections 201 or 301, the Trustee shall not be required to
authenticate such Securities if the issuance of such Securities pursuant to this
Indenture will affect the Trustee's own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee.
Unless otherwise specified as contemplated by Section 301 with respect
to any series of Securities, or any Tranche thereof, each Security, and the
Guaranty endorsed thereon, shall be dated the date of the authentication of such
Security.
Unless otherwise specified as contemplated by Section 301 with respect
to any series of Securities, or any Tranche thereof, no Security or Guaranty
endorsed thereon shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee or an Authenticating Agent by manual signature of an
authorized officer thereof, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the benefits of this
Indenture. Notwithstanding the foregoing, if (a) any Security shall have been
authenticated and delivered hereunder to the Company, or any Person acting on
its behalf, but shall never have been issued and sold by the Company, (b) the
Company shall deliver such Security to the Security Registrar for cancellation
or shall cancel such Security and deliver evidence of such cancellation to the
Trustee, in each case as provided in Section 309 and (c) the Company, at its
election, shall deliver to the Trustee a written statement (which need not
comply with Section 102 and need not be accompanied by an Officer's Certificate
or an Opinion of Counsel) stating that such Security has never been issued and
sold by the Company, then for all purposes of this Indenture such Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits hereof.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, or any
Tranche thereof, the Company may execute, and upon Company Order and Guarantor
Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed, photocopied or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued, having Guaranties
endorsed thereon, with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities or Guaranties may
determine, as evidenced by their execution of such Securities or Guaranties;
provided, however, that temporary Securities need not recite specific
redemption, sinking fund, conversion or exchange provisions.
Except as otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, after the
preparation of definitive Securities of such series or Tranche, the temporary
Securities of such series or Tranche shall be exchangeable, without charge to
the Holders thereof, for definitive Securities of such series or Tranche, with
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the definitive Guaranties of the Guarantor endorsed thereon, upon surrender of
such temporary Securities at the office or agency of the Company maintained
pursuant to Section 502 in a Place of Payment for such Securities. Upon such
surrender of temporary Securities, the Company, except as aforesaid, shall
execute and the Trustee shall authenticate and deliver in exchange therefor
definitive Securities of the same series and Tranche, of authorized
denominations and of like tenor and aggregate principal amount, with definitive
Guaranties endorsed thereon.
Until exchanged in full as hereinabove provided, temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities of the same series and Tranche and of like tenor
authenticated and delivered hereunder.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept in one of the offices designated
pursuant to Section 502, with respect to the Securities of each series, or any
Tranche thereof, a register (the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities of such series or Tranche and the registration of
transfer thereof. The Company shall designate one Person to maintain the
Security Register for the Securities of each series, and such Person is referred
to herein, with respect to such series, as the "Security Registrar". Anything
herein to the contrary notwithstanding, the Company may designate one or more of
its offices or an office of any Affiliate (including the Guarantor) as an office
in which a register with respect to the Securities of one or more series, or any
Tranche or Tranches thereof, shall be maintained, and the Company may designate
itself or any Affiliate (including the Guarantor) as the Security Registrar with
respect to one or more of such series. The Security Register shall be open for
inspection by the Trustee and the Company at all reasonable times.
Except as otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, upon
presentment for registration of transfer of any Security of such series or
Tranche at the office or agency of the Company maintained pursuant to
Section 502 in a Place of Payment for such series or Tranche, and further upon
satisfaction of any conditions prescribed by applicable law, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of the same
series and Tranche, of authorized denominations and of like tenor and aggregate
principal amount, with a Guaranties endorsed thereon.
Except as otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, any Security of
such series or Tranche may be exchanged, at the option of the Holder, for one or
more new Securities of the same series and Tranche, of authorized denominations
and of like tenor and aggregate principal amount, upon presentment of the
Securities to be exchanged at any such office or agency. Whenever any Securities
are so presented for exchange and upon satisfaction of any conditions prescribed
by applicable law, the Company shall execute, and the Trustee shall authenticate
and deliver, the Securities, with Guaranties endorsed thereon, which the Holder
making the exchange is entitled to receive.
All Securities delivered upon any registration of transfer or exchange
of Securities shall be valid obligations of the Company, and the Guaranties
endorsed thereon shall be valid obligations of the Guarantor, evidencing the
same respective obligations, and being entitled to the same benefits under
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this Indenture, as the Securities (and Guaranties endorsed thereon) presented
upon such registration of transfer or exchange.
Every Security presented for registration of transfer or for exchange
shall (if so required by the Company, the Guarantor, Trustee or the Security
Registrar) be duly endorsed or shall be accompanied by a written instrument of
transfer in form satisfactory to the Company, the Guarantor and the Trustee or
the Security Registrar, as the case may be, duly executed by the Holder thereof
or his attorney duly authorized in writing.
Unless otherwise specified as contemplated by Section 301 with respect
to Securities of any series, or any Tranche thereof, no service charge shall be
made for any registration of transfer or exchange of Securities, but the Company
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to Section 304, 406 or
1106 not involving any transfer.
The Company shall not be required to execute or to provide for the
registration of transfer of or the exchange of (a) Securities of any series, or
any Tranche thereof, during a period of fifteen (15) days immediately preceding
the date notice is to be given identifying the serial numbers of the Securities
of such series or Tranche called for redemption or (b) any Security so selected
for redemption in whole or in part, except the unredeemed portion of any
Security being redeemed in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is presented to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and Tranche, and of like tenor and
principal amount, having a Guaranty endorsed thereon and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company, the Guarantor and the
Trustee (a) evidence to their satisfaction of the ownership of and the
destruction, loss or theft of any Security and (b) such security or indemnity as
may be reasonably required by them to save each of them and any agent of any of
them harmless, then, in the absence of notice to the Company, the Guarantor or
the Trustee that such Security is held by a Person deemed to be a protected
purchaser under applicable law, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and Tranche, and of like tenor and
principal amount, having a Guaranty endorsed thereon and bearing a number not
contemporaneously outstanding.
Notwithstanding the foregoing, in case any such mutilated, destroyed,
lost or stolen Security has become or is about to become due and payable, the
Company or the Guarantor in its discretion may, but subject to compliance with
the conditions set forth in the next preceding paragraph, instead of issuing a
new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including the fees and expenses of the Trustee) in
connection therewith.
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Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security and the Guaranty endorsed thereon
shall constitute an original additional contractual obligation of the Company or
the Guarantor, as the case requires, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone other than the Holder
of such new Security, and any such new Security and Guaranty shall be entitled
to all the benefits of this Indenture equally and ratably with any and all other
Securities of such series duly issued hereunder and the Guaranties endorsed
thereon.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise specified as contemplated by Section 301 with respect
to the Securities of any series, or any Tranche thereof, interest on any
Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest.
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,
including without limitation interest the payment period for which has been
extended as specified with respect to such series as contemplated by Section 301
(herein called "Unpaid Interest"), shall forthwith cease to be payable to the
Holder on the related Regular Record Date by virtue of having been such Holder,
and such Unpaid Interest may be paid by the Company or the Guarantor, at its
election in each case, as provided in clause (a) or (b) below:
(a) The Company or the Guarantor may elect to make payment
of any Unpaid Interest to the Persons in whose names the Securities of
such series (or their respective Predecessor Securities) are
registered at the close of business on a date (herein called a
"Special Record Date") for the payment of such Unpaid Interest, which
shall be fixed in the following manner. The Company or the Guarantor
shall notify the Trustee in writing of the amount of Unpaid 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 or the
Guarantor, as the case requires, shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid in
respect of such Unpaid 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 Unpaid Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Unpaid Interest which shall be not more than
thirty (30) days and not less than ten (10) days prior to the date of
the proposed payment and not less than twenty-five (25) days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company and the Guarantor of such
Special Record Date and, in the name and at the expense of the
Company, shall, not less than fifteen (15) days prior to such Special
Record Date, cause notice of the proposed payment of such Unpaid
Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Securities of such
series at the address of such Holder as it appears in the Security
Register. Notice of the proposed payment of such Unpaid Interest and
the Special Record Date therefor having been so mailed, such Unpaid
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Interest shall be paid to the Persons in whose names the Securities of
such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date.
(b) The Company or the Guarantor may make payment of any
Unpaid 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 or the Guarantor to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to the due presentment of any Security for registration of
transfer, the Company, the Guarantor, the Trustee and any agent of the Company,
the Guarantor or the Trustee may treat the Person in whose name such Security is
registered as the absolute owner of such Security for the purpose of receiving
payment of principal of and premium, if any, and (subject to Section 307)
interest, if any, on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and none of the Company, the Guarantor
or the Trustee or any agent of the Company, the Guarantor or the Trustee shall
be affected by notice to the contrary.
SECTION 309. CANCELLATION BY SECURITY REGISTRAR.
All Securities presented for payment, redemption, registration of
transfer or exchange shall, if presented to any Person other than the Security
Registrar, be delivered to the Security Registrar and, if not theretofore
canceled, shall be promptly canceled by the Security Registrar. The Company or
the Guarantor may at any time deliver to the Security Registrar for cancellation
any Securities previously authenticated and delivered hereunder which the
Company or the Guarantor may have acquired in any manner whatsoever or which the
Company shall not have issued and sold, and all Securities so delivered shall be
promptly canceled by the Security Registrar. Unless by a Company Order the
Company shall direct that canceled Securities be returned to it, all canceled
Securities held by the Security Registrar shall be disposed of in accordance
with the Security Registrar's customary procedures. The Security Registrar shall
promptly deliver to the Company and the Trustee evidence of any cancellation by
it of a Security, and of any disposition by it of a canceled Security, in
accordance with this Section 309.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, or any Tranche thereof, interest on the Securities of
each series shall be computed on the basis of a three hundred sixty (360) day
year consisting of twelve (12) thirty (30) day months, and, with respect to any
period less than a full calendar month, on the basis of the actual number of
days elapsed during such period.
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SECTION 311. PAYMENT TO BE IN PROPER CURRENCY.
In the case of the Securities of any series, or any Tranche thereof,
denominated in any currency other than Dollars or in a composite currency (the
"Required Currency"), except as otherwise specified with respect to such
Securities as contemplated by Section 301, the obligation of the Company or the
Guarantor to make any payment of the principal thereof, or the premium, if any,
or interest, if any, thereon, shall not be discharged or satisfied by any tender
by the Company or the Guarantor, or recovery by the Trustee, in any currency
other than the Required Currency, except to the extent that such tender or
recovery shall result in the Trustee timely holding the full amount of the
Required Currency then due and payable. If any such tender or recovery is in a
currency other than the Required Currency, the Trustee may take such actions as
it considers appropriate to exchange such currency for the Required Currency.
The costs and risks of any such exchange, including without limitation the risks
of delay and exchange rate fluctuation, shall be borne by the Company and the
Guarantor, the Company and the Guarantor shall remain fully liable for any
shortfall or delinquency in the full amount of Required Currency then due and
payable, and in no circumstances shall the Trustee be liable therefor except in
the case of its negligence or willful misconduct.
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 401. APPLICABILITY OF ARTICLE.
Securities of any series, or any Tranche thereof, which are redeemable
before their Stated Maturity shall be redeemable in accordance with their terms
and (except as otherwise specified as contemplated by Section 301 for Securities
of such series or Tranche) in accordance with this Article.
SECTION 402. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution or an Officer's Certificate. The Company shall,
at least forty-five (45) days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee in writing of such Redemption Date and of the principal amount of such
Securities to be redeemed. In the case of any redemption of Securities (a) prior
to the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture or (b) pursuant to an election of
the Company which is subject to a condition specified in the terms of such
Securities, the Company and the Guarantor shall each furnish the Trustee with an
Officer's Certificate evidencing compliance with such restriction or condition.
SECTION 403. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series, or any Tranche thereof,
are to be redeemed, the particular Securities to be redeemed shall be selected
by the Security Registrar from the Outstanding Securities of such series or
Tranche not previously called for redemption, by such method as shall be
provided for such series or Tranche, or, in the absence of any such provision,
by such method of random selection as the Security Registrar shall deem fair and
appropriate and which may, in any case, provide for the selection for redemption
of portions (in any authorized denomination for Securities of such series
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or Tranche) of the principal amount of Securities of such series or Tranche
having a denomination larger than the minimum authorized denomination for
Securities of such series or Tranche; provided, however, that if, as indicated
in an Officer's Certificate, the Company shall have offered to purchase all or
any principal amount of the Securities then Outstanding of any series, or any
Tranche thereof, and less than all of such Securities as to which such offer was
made shall have been tendered to the Company for such purchase, the Security
Registrar, if so directed by Company Order, shall select for redemption all or
any principal amount of such Securities which have not been so tendered.
The Security Registrar shall promptly notify the Company and the
Trustee in writing of the Securities selected for redemption and, in the case of
any Securities selected to be redeemed in part, the principal amount thereof to
be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 404. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in
Section 106 to the Holders of the Securities to be redeemed not less than
thirty (30) nor more than sixty (60) days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any series or Tranche
are to be redeemed, the identification of the particular Securities to
be redeemed and the portion of the principal amount of any Security to
be redeemed in part,
(d) that on the Redemption Date the Redemption Price,
together with accrued interest, if any, to the Redemption Date, will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date,
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and accrued interest,
if any, unless it shall have been specified as contemplated by
Section 301 with respect to such Securities that such surrender shall
not be required,
(f) that the redemption is for a sinking or other fund, if
such is the case, and
(g) such other matters as the Company shall deem desirable
or appropriate.
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With respect to any notice of redemption of Securities at the election
of the Company, unless, upon the giving of such notice, such Securities shall be
deemed to have been paid in accordance with Section 601, such notice may state
that such redemption shall be conditional upon the receipt by the Paying Agent
or Agents for such Securities, on or prior to the date fixed for such
redemption, of money sufficient to pay the principal of and premium, if any, and
interest, if any, on such Securities and that if such money shall not have been
so received such notice shall be of no force or effect and the Company shall not
be required to redeem such Securities. In the event that such notice of
redemption contains such a condition and such money is not so received, the
redemption shall not be made and within a reasonable time thereafter notice
shall be given, in the manner in which the notice of redemption was given, that
such money was not so received and such redemption was not required to be made
and the Paying Agent or Agents for the Securities otherwise to have been
redeemed shall promptly return to the Holders thereof any of such Securities
which had been surrendered for payment upon such redemption.
Notice of redemption of Securities to be redeemed at the election of
the Company, and any notice of non-satisfaction of a condition for redemption as
aforesaid, shall be given by the Company or, upon Company Request, by the
Security Registrar in the name and at the expense of the Company. Notice of
mandatory redemption of Securities shall be given by the Security Registrar in
the name and at the expense of the Company.
SECTION 405. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, and the
conditions, if any, set forth in such notice having been satisfied, the
Securities or portions thereof so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified, and from and
after such date (unless, in the case of an unconditional notice of redemption,
the Company shall default in the payment of the Redemption Price and accrued
interest, if any) such Securities or portions thereof, if interest-bearing,
shall cease to bear interest. Upon surrender of any such Security for redemption
in accordance with such notice, such Security or portion thereof shall be paid
by the Company at the Redemption Price, together with accrued interest, if any,
to the Redemption Date; provided, however, that no such surrender shall be a
condition to such payment if so specified as contemplated by Section 301 with
respect to such Security; and provided, further, that except as otherwise
specified as contemplated by Section 301 with respect to such Security, any
installment of interest on any Security the Stated Maturity of which installment
is on or prior to the Redemption Date shall be payable to the Holder of such
Security, or one or more Predecessor Securities, registered as such at the close
of business on the related Regular Record Date according to the terms of such
Security and subject to the provisions of Section 307.
SECTION 406. SECURITIES REDEEMED IN PART.
Upon the surrender of any Security which is to be redeemed only in
part at a Place of Payment therefor (with, if the Company, the Guarantor or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company, the Guarantor or the Trustee, as the case may
be, duly executed by, the Holder thereof or his attorney duly authorized in
writing), the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge, a new Security
or Securities of the same series and Tranche, of any authorized denomination
requested by such Holder and of like tenor and in aggregate principal amount
equal to and in exchange for the unredeemed portion of the principal of the
Security so surrendered, with a Guaranty endorsed thereon.
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ARTICLE FIVE
COVENANTS
SECTION 501. PAYMENT OF SECURITIES.
The Company shall pay the principal of and premium, if any, and
interest, if any, on the Securities of each series in accordance with the terms
of such Securities and this Indenture.
SECTION 502. MAINTENANCE OF OFFICE OR AGENCY.
The Company and the Guarantor shall maintain in each Place of Payment
for the Securities of each series, or any Tranche thereof, an office or agency
where payment of such Securities shall be made, where the registration of
transfer or exchange of such Securities may be effected and where notices and
demands to or upon the Company or the Guarantor in respect of such Securities
and this Indenture may be served. The Company and the Guarantor shall give
prompt written notice to the Trustee of the location, and any change in the
location, of each such office or agency and prompt notice to the Holders of any
such change in the manner specified in Section 106. If at any time the Company
or the Guarantor shall fail to maintain any such required office or agency in
respect of Securities of any series, or any Tranche thereof, or shall fail to
furnish the Trustee with the address thereof, payment of such Securities shall
be made, registration of transfer or exchange thereof may be effected and
notices and demands in respect thereof may be served at the Corporate Trust
Office of the Trustee, and each of the Company and the Guarantor hereby appoint
the Trustee as its agent for all such purposes in any such event.
The Company or the Guarantor may also from time to time designate one
or more other offices or agencies with respect to the Securities of one or more
series, or any Tranche thereof, for any or all of the foregoing purposes and may
from time to time rescind such designations; provided, however, that, unless
otherwise specified as contemplated by Section 301 with respect to the
Securities of such series or Tranche, no such designation or rescission shall in
any manner relieve the Company or the Guarantor of its obligation to maintain an
office or agency for such purposes in each Place of Payment for such Securities
in accordance with the requirements set forth above. The Company and the
Guarantor shall give prompt written notice to the Trustee, and prompt notice to
the Holders in the manner specified in Section 106, of any such designation or
rescission and of any change in the location of any such other office or agency.
Anything herein to the contrary notwithstanding, any office or agency
required by this Section may be maintained at an office of the Company or the
Guarantor or any Affiliate of either of them, in which event the Company, the
Guarantor or such Affiliate, as the case may be, shall perform all functions to
be performed at such office or agency.
SECTION 503. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to the Securities of any series, or any Tranche thereof, it shall, on or
before each due date of the principal of and premium, if any, and interest, if
any, on any of such Securities, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the principal and premium
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or interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided. The Company and the Guarantor shall
promptly notify the Trustee of any failure by the Company and the Guarantor (or
any other obligor on such Securities) to make any payment of principal or
premium, if any, or interest, if any, on such Securities.
Whenever the Company shall have one or more Paying Agents for the
Securities of any series, or any Tranche thereof, it shall, on or before each
due date of the principal of and premium, if any, and interest, if any, on such
Securities, deposit with such Paying Agents sums sufficient (without
duplication) to pay the principal and premium or interest so becoming due, such
sums to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying Agent is the Trustee)
the Company shall promptly notify the Trustee of any failure by it so to act.
The Company shall cause each Paying Agent for the Securities of any
series, or any Tranche thereof, other than the Company or the Trustee, to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent shall:
(a) hold all sums held by it for the payment of the
principal of and premium, if any, or interest, if any, on such
Securities in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of
as herein provided;
(b) give the Trustee notice of any failure by the Company
and the Guarantor (or any other obligor upon such Securities) to make
any payment of principal of and premium, if any, or interest, if any,
on such Securities; and
(c) at any time during the continuance of any such failure,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent and furnish to the
Trustee such information as it possesses regarding the names and
addresses of the Persons entitled to such sums.
The Company may at any time pay, or by Company Order direct any Paying
Agent to pay, to the Trustee all sums held in trust by the Company or such
Paying Agent, such sums to be held by the Trustee upon the same trusts as those
upon which such sums were held by the Company or such Paying Agent and, if so
stated in a Company Order delivered to the Trustee, in accordance with the
provisions of Article Six; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of and premium, if
any, or interest, if any, on any Security and remaining unclaimed for two years
after such principal and premium, if any, or interest, if any, has become due
and payable shall be paid to the Company on Company Request, or, if then held by
the Company, shall be discharged from such trust; and, upon such payment or
discharge, the Holder of such Security shall, as an unsecured general creditor
and not as the Holder of an Outstanding Security, look only to the Company and
the Guarantor for payment of the amount so due and payable and remaining unpaid,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such payment to the Company, may at the expense of the
Company, cause to be mailed, on one occasion only, notice to such Holder that
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such money remains unclaimed and that, after a date specified therein, which
shall not be less than thirty (30) days from the date of such mailing, any
unclaimed balance of such money then remaining will be paid to the Company.
SECTION 504. CORPORATE EXISTENCE.
Subject to the rights of each of the Company and the Guarantor under
Article Ten, each of the Company and the Guarantor shall do or cause to be done
all things necessary to preserve and keep its corporate existence in full force
and effect.
SECTION 505. ANNUAL OFFICER'S CERTIFICATE
Not later than December 1 in each year, commencing December 1, 1999,
each of the Company and the Guarantor shall deliver to the Trustee an Officer's
Certificate which need not comply with Section 102, executed by its principal
executive officer, principal financial officer or principal accounting officer,
as to such officer's knowledge of such obligor's compliance with all conditions
and covenants under this Indenture, such compliance to be determined without
regard to any period of grace or requirement of notice under this Indenture.
SECTION 506. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in
(a) any covenant or restriction specified with respect to
the Securities of any one or more series, or any Tranche or Tranches
thereof, as contemplated by Section 301 or by Section 1201(b) if
before the time for such compliance the Holders of a majority in
aggregate principal amount of the Outstanding Securities of all series
and Tranches with respect to which compliance with such covenant or
restriction is to be omitted, considered as one class, shall, by Act
of such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition;
provided, however, that no such waiver shall be effective as to any
matters contemplated in clause (a), (b) or (c) in Section 1102 without
consent of the Holders specified in such Section; and
(b) Section 504 or Article Ten if before the time for such
compliance the Holders of a majority in principal amount of Securities
Outstanding under this Indenture shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance
with such term, provision or condition;
but, in either case, 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.
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ARTICLE SIX
SATISFACTION AND DISCHARGE
SECTION 601. SATISFACTION AND DISCHARGE OF SECURITIES.
Any Security or Securities, or any portion of the principal amount
thereof, shall be deemed to have been paid for all purposes of this Indenture,
and the entire indebtedness of the Company and the Guarantor in respect thereof
shall be satisfied and discharged, if there shall have been irrevocably
deposited with the Trustee or any Paying Agent (other than the Company or the
Guarantor), in trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the Maturity of such
Securities or portions thereof, Eligible Obligations, which shall not
contain provisions permitting the redemption or other prepayment thereof at
the option of the issuer thereof, the principal of and the interest on
which when due, without any regard to reinvestment thereof, will provide
moneys which, together with the money, if any, deposited with or held by
the Trustee or such Paying Agent, shall be sufficient, or
(c) a combination of (a) or (b) which shall be sufficient,
to pay when due the principal of and premium, if any, and interest, if any, due
and to become due on such Securities or portions thereof; provided, however,
that in the case of the provision for payment or redemption of less than all the
Securities of any series or Tranche, such Securities or portions thereof shall
have been selected by the Security Registrar as provided herein and, in the case
of a redemption, the notice requisite to the validity of such redemption shall
have been given or irrevocable authority shall have been given by the Company to
the Trustee to give such notice, under arrangements satisfactory to the Trustee;
and provided, further, that the Company shall have delivered to the Trustee and
such Paying Agent:
(x) if such deposit shall have been made prior to the Maturity of such
Securities, a Company Order stating that the money and Eligible Obligations
deposited in accordance with this Section shall be held in trust, as
provided in Section 603;
(y) if Eligible Obligations shall have been deposited, an Opinion of
Counsel to the effect that such obligations constitute Eligible Obligations
and do not contain provisions permitting the redemption or other prepayment
thereof at the option of the issuer thereof, and an opinion of an
independent public accountant of nationally recognized standing, selected
by the Company, to the effect that the other requirements set forth in
clause (b) and, if applicable, (c) above have been satisfied; and
(z) if such deposit shall have been made prior to the Maturity of such
Securities, an Officer's Certificate stating the Company's intention that,
upon delivery of such Officer's Certificate, its indebtedness in respect of
such Securities or portions thereof will have been satisfied and discharged
as contemplated in this Section.
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Upon the deposit of money or Eligible Obligations, or both, in
accordance with this Section, together with the documents required by clauses
(x), (y) and (z) above, the Trustee shall, upon Company Request, acknowledge in
writing that such Securities or portions thereof are deemed to have been paid
for all purposes of this Indenture and that the entire indebtedness of the
Company and the Guarantor in respect thereof has been satisfied and discharged
as contemplated in this Section. In the event that all of the conditions set
forth in the preceding paragraph shall have been satisfied in respect of any
Securities or portions thereof except that, for any reason, the Officer's
Certificate specified in clause (z) (if otherwise required) shall not have been
delivered, such Securities or portions thereof shall nevertheless be deemed to
have been paid for all purposes of this Indenture, and the Holders of such
Securities or portions thereof shall nevertheless be no longer entitled to the
benefits provided by this Indenture or of any of the covenants of the Company
under Article Five (except the covenants contained in Sections 502 and 503) or
any other covenants made in respect of such Securities or portions thereof as
contemplated by Section 301 or Section 1201(b), but the indebtedness of the
Company and the Guarantor in respect of such Securities or portions thereof
shall not be deemed to have been satisfied and discharged prior to Maturity for
any other purpose; and, upon Company Request or Guarantor Request, the Trustee
shall acknowledge in writing that such Securities or portions thereof are deemed
to have been paid for all purposes of this Indenture.
If payment at Stated Maturity of less than all of the Securities of
any series, or any Tranche thereof, is to be provided for in the manner and with
the effect provided in this Section, the Security Registrar shall select such
Securities, or portions of principal amount thereof, in the manner specified by
Section 403 for selection for redemption of less than all the Securities of a
series or Tranche.
In the event that Securities which shall be deemed to have been paid
for purposes of this Indenture, and, if such is the case, in respect of which
the indebtedness of the Company and the Guarantor shall have been satisfied and
discharged, all as provided in this Section, do not mature and are not to be
redeemed within the sixty (60) day period commencing with the date of the
deposit of moneys or Eligible Obligations, as aforesaid, the Company shall, as
promptly as practicable, give a notice, in the same manner as a notice of
redemption with respect to such Securities, to the Holders of such Securities to
the effect that such deposit has been made and the effect thereof.
Notwithstanding that any Securities shall be deemed to have been paid
for purposes of this Indenture, as aforesaid, the obligations of the Company,
the Guarantor and the Trustee in respect of such Securities under Sections 304,
305, 306, 404, 502, 503, 807 and 814 and this Article shall survive.
The Company shall pay, and shall indemnify the Trustee or any Paying
Agent with which Eligible Obligations shall have been deposited as provided in
this Section against, any tax, fee or other charge imposed on or assessed
against such Eligible Obligations or the principal or interest received in
respect of such Eligible Obligations, including, but not limited to, any such
tax payable by any entity deemed, for tax purposes, to have been created as a
result of such deposit.
Anything herein to the contrary notwithstanding, (a) if, at any time
after a Security would be deemed to have been paid for purposes of this
Indenture, and, if such is the case, the Company's indebtedness in respect
thereof would be deemed to have been satisfied and discharged pursuant to this
Section (without regard to the provisions of this paragraph), the Trustee or any
Paying Agent, as the case may be, (i) shall be required to return the money or
Eligible Obligations, or combination thereof, deposited with it as aforesaid to
the Company or the Guarantor, or any representative of either thereof, under any
applicable Federal or State bankruptcy, insolvency or other similar law or
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(ii) are unable to apply any money with respect to such Security by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, such Security shall
thereupon be deemed retroactively not to have been paid and any satisfaction and
discharge of the indebtedness of the Company and the Guarantor in respect
thereof shall retroactively be deemed not to have been effected, and such
Security shall be deemed to remain Outstanding and (b) any satisfaction and
discharge of the indebtedness of the Company and the Guarantor in respect of any
Security shall be subject to the provisions of the last paragraph of
Section 503.
SECTION 602. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further
effect (except as hereinafter expressly provided), and the Trustee, at the
expense of the Company, shall execute such instruments as the Company shall
reasonably request to evidence and acknowledge the satisfaction and discharge of
this Indenture, when:
(a) no Securities remain Outstanding hereunder; and
(b) the Company or the Guarantor has paid or caused to be paid all
other sums payable hereunder by the Company or the Guarantor;
provided, however, that if, in accordance with the last paragraph of
Section 601, any Security, previously deemed to have been paid for purposes of
this Indenture, shall be deemed retroactively not to have been so paid, this
Indenture shall thereupon be deemed retroactively not to have been satisfied and
discharged, as aforesaid, and to remain in full force and effect, and the
Company shall execute and deliver such instruments as the Trustee shall
reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge of this Indenture as
aforesaid, the obligations of the Company, the Guarantor and the Trustee under
Sections 304, 305, 306, 404, 502, 503, 807 and 814 and this Article shall
survive.
Upon satisfaction and discharge of this Indenture as provided in this
Section, the Trustee shall turn over to the Company any and all money,
securities and other property then held by the Trustee for the benefit of the
Holders of the Securities (other than money and Eligible Obligations held by the
Trustee pursuant to Section 603) and shall execute and deliver to the Company
and the Guarantor such instruments as, in the judgment of the Company and the
Guarantor, shall be necessary, desirable or appropriate to effect or evidence
the satisfaction and discharge of this Indenture.
SECTION 603. APPLICATION OF TRUST MONEY.
Neither the Eligible Obligations nor the money deposited pursuant to
Section 601, nor the principal or interest payments on any such Eligible
Obligations, shall be withdrawn or used for any purpose other than, and shall be
held in trust for, the payment of the principal of and premium, if any, and
interest, if any, on the Securities or portions of principal amount thereof in
respect of which such deposit was made, all subject, however, to the provisions
of Section 503; provided, however, that any cash received from such principal or
interest payments on such Eligible Obligations, if not then needed for such
purpose, shall, to the extent practicable and upon Company Request and delivery
to the Trustee of the documents referred to in clause (y) in the first paragraph
of Section 601, be invested in Eligible Obligations of the type described in
clause (b) in the first paragraph of Section 601 maturing at such times and in
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such amounts as shall be sufficient, together with any other moneys and the
proceeds of any other Eligible Obligations then held by the Trustee, to pay when
due the principal of and premium, if any, and interest, if any, due and to
become due on such Securities or portions thereof on and prior to the Maturity
thereof, and interest earned from such reinvestment shall be paid over to the
Company as received, free and clear of any trust, lien or pledge under this
Indenture; and provided, further, that any moneys held in accordance with this
Section on the Maturity of all such Securities in excess of the amount required
to pay the principal of and premium, if any, and interest, if any, then due on
such Securities shall be paid over to the Company free and clear of any trust,
lien or pledge under this Indenture; and provided, further, that if an Event of
Default shall have occurred and be continuing, moneys to be paid over to the
Company pursuant to this Section shall be held until such Event of Default shall
have been waived or cured.
ARTICLE SEVEN
EVENTS OF DEFAULT; REMEDIES
SECTION 701. EVENTS OF DEFAULT.
"EVENT OF DEFAULT", wherever used herein with respect to the
Securities of any series, means any of the following events which shall have
occurred and be continuing:
(a) failure to pay interest, if any, on any Security of such series
within thirty (30) days after the same becomes due and payable; provided,
however, that no such failure shall constitute an "Event of Default" if the
Company shall have made a valid extension of the interest payment period
with respect to the Securities of such series if so provided with respect
to such series as contemplated by Section 301; or
(b) failure to pay the principal of or premium, if any, on any
Security of such series when due; provided, however, that no such failure
shall constitute an "Event of Default" if the Company shall have made a
valid extension of the Maturity of the Securities of such series if so
provided with respect to such series as contemplated by Section 301; or
(c) failure to perform or breach of any covenant or warranty of the
Company or the Guarantor in this Indenture (other than a covenant or
warranty a default in the performance of which or breach of which is
elsewhere in this Section specifically dealt with or which has expressly
been included in this Indenture solely for the benefit of one or more
series of Securities other than such series) for a period of sixty (60)
days after there has been given, by registered or certified mail, to the
Company and the Guarantor by the Trustee, or to the Company, the Guarantor
and the Trustee by the Holders of at least thirty-three percentum (33%) in
principal amount of the Outstanding Securities of such series, a written
notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "NOTICE OF DEFAULT" hereunder, unless the
Trustee, or the Trustee and the Holders of a principal amount of Securities
of such series not less than the principal amount of Securities the Holders
of which gave such notice, as the case may be, shall agree in writing to an
extension of such period prior to its expiration; provided, however, that
the Trustee, or the Trustee and the Holders of such principal amount of
Securities of such series, as the case may be, shall be deemed to have
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agreed to an extension of such period if corrective action is initiated by
the Company or the Guarantor within such period and is being diligently
pursued; or
(d) the entry by a court having jurisdiction in the premises of (i) a
decree or order for relief in respect of the Company or the Guarantor in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (ii) a
decree or order adjudging the Company or the Guarantor a bankrupt or
insolvent, or approving as properly filed a petition by one or more Persons
other than the Company or the Guarantor seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company or
the Guarantor under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official for the Company or the Guarantor or for any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and any such decree or order for relief or any such other decree
or order shall have remained unstayed and in effect for a period of ninety
(90) consecutive days; or
(e) the commencement by the Company or the Guarantor 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 the
Company or the Guarantor to the entry of a decree or order for relief in
respect of the Company or the Guarantor in a case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against the Company or the Guarantor, or the filing by the
Company or the Guarantor of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law, or the
consent by the Company or the Guarantor to the filing of such petition or
to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the
Company or the Guarantor or of any substantial part of its property, or the
making by the Company or the Guarantor of an assignment for the benefit of
creditors, or the admission by the Company or the Guarantor in writing of
its inability to pay its debts generally as they become due, or the
authorization of such action by the Board of Directors of the Company or
the Guarantor.
SECTION 702. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default shall have occurred and be continuing with
respect to Securities of any series at the time Outstanding, then in every such
case the Trustee or the Holders of not less than thirty-three percentum (33%) in
principal amount of the Securities of such series then Outstanding may declare
the principal amount (or, if any of the Securities of such series are Discount
Securities, such portion of the principal amount of such Securities as may be
specified in the terms thereof as contemplated by Section 301) of all of the
Securities of such series then Outstanding to be due and payable immediately, by
a notice in writing to the Company (and to the Trustee if given by Holders), and
upon such declaration such principal amount (or specified amount), together with
premium, if any, and accrued interest, if any, thereon, shall become immediately
due and payable; provided, however, that if an Event of Default shall have
occurred and be continuing with respect to more than one series of Securities,
the Trustee or the Holders of not less than thirty-three percentum (33%) in
aggregate principal amount of the Outstanding Securities of all such series,
considered as one class, may make such declaration of acceleration, and not the
Holders of the Securities of any one of such series.
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At any time after such a declaration of acceleration of the maturity
of the Securities of any series then Outstanding shall have been made, but
before a judgment or decree for payment of the money due shall have been
obtained by the Trustee as provided in this Article, such declaration and its
consequences shall, without further act, be deemed to have been rescinded and
annulled, if
(a) the Company or the Guarantor shall have paid or deposited
with the Trustee a sum sufficient to pay
(i) all overdue interest, if any, on all Securities of such
series then Outstanding;
(ii) the principal of and premium, if any, on any Securities
of such series then Outstanding which have become due otherwise
than by such declaration of acceleration and interest, if any,
thereon at the rate or rates prescribed therefor in such
Securities;
(iii) interest, if any, upon overdue interest, if any, at
the rate or rates prescribed therefor in such Securities, to the
extent that payment of such interest is lawful;
(iv) all amounts due to the Trustee under Section 807;
and
(b) all Events of Default with respect to Securities of such
series, other than the non-payment of the principal of Securities of
such series which shall have become due solely by such declaration of
acceleration, shall have been cured or waived as provided in
Section 713.
No such rescission shall affect any subsequent Event of Default or impair any
right consequent thereon.
SECTION 703. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
If an Event of Default described in clause (a) or (b) of Section 701
shall have occurred and be continuing, the Company or the Guarantor shall, upon
demand of the Trustee, pay to it, for the benefit of the Holders of the
Securities of the series with respect to which such Event of Default shall have
occurred, the whole amount then due and payable on such Securities for principal
and premium, if any, and interest, if any, and, in addition thereto, such
further amount as shall be sufficient to cover any amounts due to the Trustee
under Section 807.
If the Company shall fail to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company and the Guarantor or any other obligor upon
such Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company and the Guarantor or
any other obligor upon such Securities, wherever situated.
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If an Event of Default with respect to Securities of any series shall
have occurred and be continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of the Securities
of such series then Outstanding 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 704. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, to the extent permitted by law, at the date or
dates fixed by the Trustee and, in case of the distribution of such money on
account of principal or premium, if any, or interest, if any, upon presentation
of the Securities in respect of which or for the benefit of which such money
shall have been collected and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 807;
SECOND: To the payment of the whole amount then due and unpaid upon
the Outstanding Securities for principal and premium, if any, and interest,
if any, in respect of which or for the benefit of which such money has been
collected; and in case such proceeds shall be insufficient to pay in full
the whole amount so due and unpaid upon such Securities, then to the
payment of such principal and interest, if any, thereon without any
preference or priority, ratably according to the aggregate amount so due
and unpaid, with any balance then remaining to the payment of premium, if
any, and, if so specified as contemplated by Section 301 with respect to
the Securities of any series, or any Tranche thereof, interest, if any, on
overdue premium, if any, and overdue interest, if any, ratably as
aforesaid, all to the extent permitted by applicable law;
THIRD: To the payment of the remainder, if any, to the Company or to
whomsoever may be lawfully entitled to receive the same or as a court of
competent jurisdiction may direct.
SECTION 705. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or the Guarantor or any other
obligor upon the Securities or the property of the Company or the Guarantor or
of such other obligor or their creditors, the Trustee (irrespective of whether
the principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Company or the Guarantor for the payment of
overdue principal or interest) shall be entitled and empowered, by intervention
in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal,
premium, if any, and interest, if any, owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including
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any claim for amounts due to the Trustee under Section 807) and of the
Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amounts due it under Section 807.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 706. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture, or on the
Securities or the Guaranties endorsed thereon, may be prosecuted and enforced by
the Trustee without the possession of any of the Securities or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders in respect of
which such judgment has been recovered.
SECTION 707. LIMITATION ON SUITS.
No Holder shall have any right to institute any proceeding, judicial
or otherwise, with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder shall have previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of
such series;
(b) the Holders of a majority in aggregate principal amount of the
Securities then Outstanding of all series in respect of which an Event of
Default shall have occurred and be continuing, considered as one class,
shall have made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders shall have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for sixty (60) days after its receipt of such notice,
request and offer of indemnity shall have failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request shall have
been given to the Trustee during such sixty (60) day period by the Holders
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of a majority in aggregate principal amount of the Securities then
Outstanding of all series in respect of which an Event of Default shall
have occurred and be continuing, considered as one class;
it being understood and intended that no one or more of the Holders of
Securities of any series shall have any right in any manner whatever by virtue
of, or by availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other Holders of Securities of any series or to
obtain or to seek to obtain priority or preference over any other Holders of
Securities of such series or to enforce any right under this Indenture, except
in the manner herein provided and for the equal and ratable benefit of all
Holders of Securities of such series.
SECTION 708. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and premium, if any, and (subject to
Section 307) interest, if any, on such Security on the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
SECTION 709. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee or to such Holder, then and in every such case, subject
to any determination in such proceeding, the Company, the Guarantor, the Trustee
and such Holder shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
such Holder shall continue as though no such proceeding had been instituted.
SECTION 710. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided in the last paragraph of Section 306, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 711. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
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SECTION 712. CONTROL BY HOLDERS OF SECURITIES.
If an Event of Default shall have occurred and be continuing in
respect of a series of Securities, the Holders of a majority in principal amount
of the Securities of such series then Outstanding shall have the right to direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series; provided, however, that if an Event of
Default shall have occurred and be continuing with respect to more than one
series of Securities, the Holders of a majority in aggregate principal amount of
the Outstanding Securities of all such series, considered as one class, shall
have the right to make such direction, and not the Holders of the Securities of
any one of such series; and provided, further, that
(a) such direction shall not be in conflict with any rule of law or
with this Indenture, and could not involve the Trustee in personal
liability in circumstances where indemnity would not, in the Trustee's sole
discretion, be adequate,
(b) the Trustee shall not determine that the action so directed would
be unjustly prejudicial to the Holders of Securities of such series not
taking part in such direction, and
(c) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 713. WAIVER OF PAST DEFAULTS.
The Holders of a majority in principal amount of the Securities of any
series then Outstanding may on behalf of the Holders of all the Securities of
such series then Outstanding waive any past default with respect to such series
hereunder and its consequences, except a default
(a) in the payment of the principal of or premium, if any, or
interest, if any, on any Security of such series then Outstanding, or
(b) in respect of a covenant or provision hereof which under
Section 1102 cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series or the affected Tranche
thereof.
Upon any such waiver, such default shall cease to exist, and any and
all Events of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 714. UNDERTAKING FOR COSTS.
The Company and the Trustee agree, and each Holder by its acceptance
of a Security shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant, all in the
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manner, to the extent and except as provided in the Trust Indenture Act; but the
provisions of this Section shall not apply to any suit instituted by the Company
or the Guarantor, to any suit instituted by the Trustee, to any suit instituted
by any Holder, or group of Holders, holding in the aggregate more than ten
percentum (10%) in aggregate principal amount of the Outstanding Securities of
all series in respect of which such suit may be brought, considered as one
class, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of or premium, if any, or interest, if any, on any
Security on or after the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on or after the Redemption Date).
SECTION 715. WAIVER OF STAY OR EXTENSION LAWS.
To the full extent that it may lawfully so agree, neither the Company
nor the Guarantor shall at any time set up, claim or otherwise seek to take the
benefit or advantage of any stay or extension law, now or hereafter in effect,
in order to prevent or hinder the enforcement of this Indenture; and each of the
Company and the Guarantor, for itself and all who may claim under it, so far as
it or they now or hereafter may lawfully do so, hereby waives the benefit of all
such laws.
ARTICLE EIGHT
THE TRUSTEE
SECTION 801. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default with respect
to Securities of any series,
(i) the Trustee undertakes to perform, with respect to Securities of
such series, such duties and only such duties as are specifically set forth
in this Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may, with
respect to Securities of such series, conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or
opinions which by any provisions hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of this
Indenture.
(b) In case an Event of Default with respect to Securities of any
series shall have occurred and be continuing, the Trustee shall exercise, with
respect to Securities of such series, such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
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(i) this subsection shall not be construed to limit the effect of
subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Securities of any
one or more series then Outstanding, as provided herein, relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Indenture with respect to the Securities of such
series; and
(iv) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 802. NOTICE OF DEFAULTS.
The Trustee shall give notice of any default hereunder with respect to
the Securities of any series to the Holders of Securities of such series in the
manner and to the extent required to do so by the Trust Indenture Act, unless
such default shall have been cured or waived; provided, however, that in the
case of any default of the character specified in Section 701(c), no such notice
to Holders shall be given until at least seventy-five (75) days after the
occurrence thereof; and provided, further, that, subject to the provisions of
Section 801, the Trustee shall not be deemed to have knowledge of such default
unless either (i) a Responsible Officer of the Trustee shall have actual
knowledge of such default or (ii) the Trustee shall have received written notice
thereof from the Company or any Holder or, in the case of a default described in
Section 701(d), from the holder of any indebtedness or from the trustee under
any mortgage, indenture or other instrument referred to in such Section. 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 the Securities of such series.
SECTION 803. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 801 and to the applicable
provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
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document believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties;
(b) any request, direction or act of the Company or the Guarantor
mentioned herein shall be sufficiently evidenced by a Company Request or
Company Order, or a Guarantor Request or Guarantor Order, as the case
requires, or as otherwise expressly provided herein, and any resolution of
the Board of Directors of the Company or the Guarantor may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence is specifically prescribed herein) may, in the absence of bad
faith on its part, rely upon an Officer's Certificate of the Company or the
Guarantor, as appropriate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any Holder pursuant to this Indenture, unless such Holder shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it complying with such
request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall (subject to applicable legal requirements) be entitled to examine,
during normal business hours, the books, records and premises of the
Company or the Guarantor, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(h) the Trustee shall not be charged with knowledge of any Event of
Default with respect to the Securities of any series for which it is acting
as Trustee unless either (i) a Responsible Officer of the Trustee shall
have actual knowledge of the Event of Default or (ii) written notice of
such Event of Default shall have been given to the Trustee by the Company
or the Guarantor or any other obligor on such Securities, or by any Holder
of such Securities.
SECTION 804. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities and the Guarantees
endorsed thereon (except the Trustee's certificates of authentication) shall be
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taken as the statements of the Company and the Guarantor, as the case requires,
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 or the Guarantees endorsed
thereon. 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 805. MAY HOLD SECURITIES.
Each of the Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
and, subject to Sections 808 and 813, may otherwise deal with the Company with
the same rights it would have if it were not such Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
SECTION 806. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds, except to the extent required by law. The Trustee shall be
under no liability for interest on or investment of any money received by it
hereunder except as expressly provided herein or otherwise agreed with, and for
the sole benefit of, the Company or the Guarantor.
SECTION 807. COMPENSATION AND REIMBURSEMENT.
The Company and the Guarantor jointly and severally agree
(a) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances reasonably incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except to the extent
that any such expense, disbursement or advance as may be attributable to
its negligence, wilful misconduct or bad faith; and
(c) to indemnify the Trustee and hold it harmless from and against any
loss, liability or expense reasonably incurred by it arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder or the performance of its duties hereunder, including the
reasonable costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder, except to the extent that any such loss,
liability or expense may be attributable to its negligence, wilful
misconduct or bad faith.
As security for the performance of the obligations of the Company and
the Guarantor under this Section, the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee as such,
other than property and funds held in trust under Section 603 (except moneys
payable to the Company as provided in Section 603). "TRUSTEE" for purposes of
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this Section shall include any predecessor Trustee; provided, however, that the
negligence, wilful misconduct or bad faith of any Trustee hereunder shall not
affect the rights of any other Trustee hereunder.
SECTION 808. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee shall have or acquire any conflicting interest within
the meaning of the Trust Indenture Act, it shall either eliminate such
conflicting interest or resign to the extent, in the manner and with the effect,
and subject to the conditions, provided in the Trust Indenture Act and this
Indenture. For purposes of Section 310(b)(1) of the Trust Indenture Act and to
the extent permitted thereby, the Trustee, in its capacity as trustee in respect
of the Securities of any series, shall not be deemed to have a conflicting
interest arising from its capacity as trustee in respect of the Securities of
any other series.
SECTION 809. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be
(a) a corporation organized and doing business under the laws of the
United States any State or Territory thereof or the District of Columbia,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least Ten Million Dollars ($10,000,000)
and subject to supervision or examination by Federal, State, Territorial or
District of Columbia authority, or
(b) if and to the extent permitted by the Commission by rule,
regulation or order upon application, a corporation or other Person
organized and doing business under the laws of a foreign government,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least Fifty Million Dollars
($50,000,000) or the Dollar equivalent of the applicable foreign currency
and subject to supervision or examination by authority of such foreign
government or a political subdivision thereof substantially equivalent to
supervision or examination applicable to United States institutional
trustees,
and, in either case, qualified and eligible under this Article and the Trust
Indenture Act. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of such supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section or the Trust Indenture Act, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 810. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 811.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company and the
Guarantor. If the instrument of acceptance by a successor Trustee required by
Section 811 shall not have been delivered to the Trustee within thirty (30) days
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after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Securities of such series then Outstanding delivered to the Trustee, and
to the Company and the Guarantor.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 808 after written
request therefor by the Company, the Guarantor or by any Holder who has
been a bona fide Holder for at least six months, or
(ii) the Trustee shall cease to be eligible under Section 809 or
Section 310(a) of the Trust Indenture Act and shall fail to resign after
written request therefor by the Company, the Guarantor or by any such
Holder, or
(iii) 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, (x) the Company and the Guarantor may remove the Trustee
with respect to all Securities or (y) subject to Section 714, any Holder who has
been a bona fide Holder for at least six (6) months may, on behalf of itself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee with respect to all Securities and the appointment of
a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause
(other than as contemplated by clause (y) in subsection (d) of this Section),
with respect to the Securities of one or more series, the Company and the
Guarantor shall take prompt steps to 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 811. If, within one (1) 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
Securities of such series then Outstanding 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 811, become the successor Trustee with respect to the Securities of such
series and to that extent supersede the successor Trustee appointed by the
Company and the Guarantor. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company and the
Guarantor or the Holders and accepted appointment in the manner required by
Section 811, any Holder who has been a bona fide Holder of a Security of such
series for at least six (6) months may, on behalf of itself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
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(f) So long as no event which is, or after notice or lapse of time, or
both, would become, an Event of Default shall have occurred and be continuing,
if the Company and the Guarantor shall have delivered to the Trustee or Trustees
with respect to the Securities of one or more series, (i) an instrument executed
by an Authorized Officer of each of the Company and the Guarantor appointing a
successor Trustee or Trustees with respect to such series, effective as of a
date specified therein, and (ii) an instrument of acceptance of such
appointment, effective as of such date, by such successor Trustee or Trustees in
accordance with Section 811, the Trustee or Trustees with respect to such
series, shall be deemed to have resigned as contemplated in subsection (b) of
this Section, the successor Trustee or Trustees shall be deemed to have been
appointed by the Company and the Guarantor pursuant to subsection (e) of this
Section and such appointment shall be deemed to have been accepted as
contemplated in Section 811, all as of such date, and all other provisions of
this Section and Section 811 shall be applicable to such resignation,
appointment and acceptance except to the extent inconsistent with this
subsection (f). This subsection (f) shall not apply with respect to a Trustee
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of any series pursuant to subsection (e) of this Section.
(g) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series to all
Holders of Securities of such series. 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 811. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of all series, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company, the Guarantor
and to the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company, the Guarantor or the successor Trustee, such
retiring Trustee shall, upon payment of all sums owed to it, execute and deliver
an instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
Guarantor, the retiring Trustee and each successor Trustee with respect to the
Securities of such series shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept such appointment and which
(i) 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, (ii)
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
(iii) 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
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in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates; but, on
request of the Company, the Guarantor or any successor Trustee, such retiring
Trustee, upon payment of all sums owed to it, shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates.
(c) Upon reasonable request of any such successor Trustee, the Company
and the Guarantor shall execute instruments to more fully and certainly vest in
and confirm to such successor Trustee all rights, powers and trusts referred to
in subsection (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 812. 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 813. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If the Trustee shall be or become a creditor of the Company, the
Guarantor or any other obligor upon the Securities (other than by reason of a
relationship described in Section 311(b) of the Trust Indenture Act), the
Trustee shall be subject to any and all applicable provisions of the Trust
Indenture Act regarding the collection of claims against the Company, the
Guarantor or such other obligor. For purposes of Section 311(b) of the Trust
Indenture Act
(a) the term "cash transaction" shall have the meaning specified in
Rule 11b-4 under the Trust Indenture Act and
(b) the term "self-liquidating paper" shall have the meaning specified
in Rule 11b-6 under the Trust Indenture Act,
in each case as such rule (or any successor rule) shall be in effect at the
applicable time.
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SECTION 814. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents with respect
to the Securities of one or more series, or any Tranche thereof, which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series or Tranche issued upon original issuance, exchange, registration of
transfer or partial redemption thereof or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and the Guarantor and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State or
Territory thereof or the District of Columbia or the Commonwealth of Puerto
Rico, authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than Ten Million Dollars ($10,000,000)
and subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
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, the Company and the Guarantor. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent, the Company and the Guarantor. Upon
receiving such a notice of resignation or upon such a termination, or in case at
any time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and the Guarantor.
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 shall pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
The provisions of Sections 308, 804 and 805 shall be applicable to
each Authenticating Agent.
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If an appointment with respect to the Securities of one or more
series, or any Tranche thereof, shall be made pursuant to this Section, the
Securities of such series or Tranche may have endorsed thereon, in addition to
the Trustee's certificate of authentication, an alternate certificate of
authentication substantially in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
--------------------------------------------
As Trustee
By
------------------------------------------
As Authenticating Agent
By
------------------------------------------
Authorized Officer
If all of the Securities of a series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested by the Company in writing (which writing
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel), shall appoint, in accordance with this Section and in accordance with
such procedures as shall be acceptable to the Trustee, an Authenticating Agent
having an office in a Place of Payment designated by the Company with respect to
such series of Securities.
ARTICLE NINE
LISTS OF HOLDERS; REPORTS BY TRUSTEE, COMPANY AND GUARANTOR
SECTION 901. LISTS OF HOLDERS.
Semiannually, not later than June 30 and December 31 in each year,
commencing December 31, 1999 and within thirty (30) days of such other times as
the Trustee may request in writing, the Company and the Guarantor shall furnish
or cause to be furnished to the Trustee information as to the names and
addresses of the Holders, and the Trustee shall preserve such information and
similar information received by it in any other capacity and afford to the
Holders access to information so preserved by it, all to such extent, if any,
and in such manner as shall be required by the Trust Indenture Act; provided,
however, that no such list need be furnished so long as the Trustee shall be the
Security Registrar.
SECTION 902. REPORTS BY TRUSTEE, COMPANY AND GUARANTOR.
Not later than July 15 in each year, commencing July 15, 2000, the
Trustee shall transmit to the Holders, the Commission and each securities
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exchange upon which any Securities are listed, a report, dated as of the next
preceding May 15, with respect to any events and other matters described in
Section 313(a) of the Trust Indenture Act, in such manner and to the extent
required by the Trust Indenture Act. The Trustee shall transmit to the Holders,
the Commission and each securities exchange upon which any Securities are
listed, and the Company and the Guarantor shall each file with the Trustee
(within thirty (30) days after filing with the Commission in the case of reports
which pursuant to the Trust Indenture Act must be filed with the Commission and
furnished to the Trustee) and transmit to the Holders, such other information,
reports and other documents, if any, at such times and in such manner, as shall
be required by the Trust Indenture Act. The Company and the Guarantor shall
notify the Trustee of the listing of any Securities on any securities exchange.
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE
OR OTHER TRANSFER
SECTION 1001. COMPANY OR GUARANTOR MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS.
Neither the Company nor the Guarantor shall consolidate with or merge
into any other Person, or convey or otherwise transfer, or lease, all of its
properties, as or substantially as an entirety, to any Person, unless:
(a) the Person formed by such consolidation or into which the Company
or the Guarantor, as the case requires, is merged or the Person which
acquires by conveyance or other transfer, or which leases (for a term
extending beyond the last Stated Maturity of the Securities then
Outstanding), all of the properties of the Company or the Guarantor, as the
case requires, as or substantially as an entirety, shall be a Person
organized and existing under the laws of the United States, any State or
Territory thereof or the District of Columbia or under the laws of Canada
or any Province thereof (such Person being hereinafter sometimes called the
"SUCCESSOR") and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form reasonably
satisfactory to the Trustee, the due and punctual payment of the principal
of and premium, if any, and interest, if any, on all the Securities then
Outstanding and the performance and observance of every other covenant and
condition of this Indenture to be performed or observed by the Company or
the Guarantor, as the case requires; and
(b) the Company or the Guarantor, as the case requires, shall have
delivered to the Trustee an Officer's Certificate and an Opinion of
Counsel, each of which shall state that such consolidation, merger,
conveyance or other transfer or lease, and such supplemental indenture,
comply with this Article and that all conditions precedent herein provided
for relating to such transaction have been complied with.
SECTION 1002. SUCCESSOR SUBSTITUTED.
Upon any consolidation or merger or any conveyance or other transfer
of all the properties of the Company or the Guarantor, as or substantially as an
entirety, in accordance with Section 1001, the Successor shall succeed to, and
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be substituted for, and may exercise every power and right of, the Company or
the Guarantor, as the case requires, under this Indenture with the same effect
as if such Successor had been named as the "Company" or the "Guarantor", as the
case requires, herein. Without limiting the generality of the foregoing, the
Successor may execute and deliver to the Trustee, and thereupon the Trustee
shall, subject to the provisions of Article Three, authenticate and deliver,
Securities. All Securities so executed by the Successor, and authenticated and
delivered by the Trustee, shall in all respects be entitled to the benefits
provided by this Indenture equally and ratably with all Securities executed,
authenticated and delivered prior to the time such consolidation, merger,
conveyance or other transfer became effective. The provisions of this Section
shall not apply in the case of a lease of properties of the Company or the
Guarantor.
SECTION 1003. RELEASE OF COMPANY OR GUARANTOR UPON CONVEYANCE OR OTHER
TRANSFER.
In the case of a conveyance or other transfer to any Person or Persons
as contemplated in Section 1001, upon the satisfaction of all the conditions
specified in Section 1001 the Company or the Guarantor, as the case requires,
(such terms being used in this Section without giving effect to such
transaction) shall be released and discharged from all obligations and covenants
under this Indenture and on and under all Securities then Outstanding (unless
the Company or the Guarantor, as the case requires, shall have delivered to the
Trustee an instrument in which it shall waive such release and discharge) and
the Trustee shall acknowledge in writing that the Company has been so released
and discharged. The provisions of this Section shall not apply in the case of a
lease of properties of the Company or the Guarantor.
SECTION 1004. LIMITATION.
Nothing in this Indenture shall be deemed to prevent or restrict:
(a) any consolidation or merger after the consummation of which the
Company or the Guarantor would be the surviving or resulting entity,
(b) any consolidation of the Company with the Guarantor or any other
Person all of the outstanding voting securities of which are owned,
directly or indirectly, by the Guarantor; or any merger of any of such
Persons into any other of such Persons; or any conveyance or other
transfer, or lease, of properties by any thereof to any other thereof,
(c) any conveyance or other transfer, or lease, of any part of the
properties of the Company or the Guarantor which does not constitute the
entirety, or substantially the entirety, thereof or
(d) the approval by the Company or the Guarantor of, or the consent by
the Company or the Guarantor to, any consolidation or merger to which any
direct or indirect subsidiary or affiliate of the Company or the Guarantor,
as the case requires, may be a party or any conveyance, transfer or lease
by any such subsidiary or affiliate of any of its assets.
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ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
SECTION 1101. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, the Guarantor and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form reasonably satisfactory to the Trustee,
for any of the following purposes:
(a) to evidence the succession of another Person to the Company or the
Guarantor and the assumption by any such successor of the covenants of the
Company or the Guarantor, as the case requires, herein and in the
Securities or the Guarantees endorsed thereon, all as provided in Article
Ten; or
(b) to add one or more covenants of the Company or the Guarantor or
other provisions for the benefit of all Holders or for the benefit of the
Holders of, or to remain in effect only so long as there shall be
Outstanding Securities of one or more specified series, or one or more
specified Tranches thereof or to surrender any right or power herein
conferred upon the Company or the Guarantor; or
(c) to change or eliminate any provision of this Indenture or to add
any new provision to this Indenture; provided, however, that if such
change, elimination or addition shall adversely affect the interests of the
Holders of Outstanding Securities of any series or Tranche in any material
respect, such change, elimination or addition shall become effective with
respect to such series or Tranche only in accordance with the provisions of
Section 1102 or when no Security of such series or Tranche remains
Outstanding; or
(d) to provide collateral security for the Securities or any series
thereof; or
(e) to establish the form or terms of Securities of any series or
Tranche or any Guaranties to be endorsed thereon as contemplated by
Sections 201 and 301; or
(f) to provide for the authentication and delivery of bearer
securities and coupons appertaining thereto representing interest, if any,
thereon and for the procedures for the registration, exchange and
replacement thereof and for the giving of notice to, and the solicitation
of the vote or consent of, the holders thereof, and for any and all other
matters incidental thereto; or
(g) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 811(b); or
(h) to provide for the procedures required to permit the Company to
utilize, at its option, a non certificated system of registration for all,
or any series or Tranche of, the Securities; or
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(i) to change any place or places where (1) the principal of and
premium, if any, and interest, if any, on all or any series of Securities,
or any Tranche thereof, shall be payable, (2) all or any series of
Securities, or any Tranche thereof, may be surrendered for registration of
transfer, (3) all or any series of Securities, or any Tranche thereof, may
be surrendered for exchange and (4) notices and demands to or upon the
Company or the Guarantor in respect of all or any series of Securities, or
any Tranche thereof, and this Indenture may be served; or
(j) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein; or to add other provisions with respect to matters or questions
arising under this Indenture or to make any other changes to the provisions
hereof, provided that such additions or other changes shall not adversely
affect the interests of the Holders of Securities of any series or Tranche
in any material respect.
Without limiting the generality of the foregoing, if the Trust
Indenture Act as in effect at the date of the execution and delivery of this
Indenture or at any time thereafter shall be amended and
(x) if any such amendment shall require one or more changes to any
provisions hereof or the inclusion herein of any additional provisions, or
shall by operation of law be deemed to effect such changes or incorporate
such provisions by reference or otherwise, this Indenture shall be deemed
to have been amended so as to conform to such amendment to the Trust
Indenture Act, and the Company, the Guarantor and the Trustee may, without
the consent of any Holders, enter into an indenture supplemental hereto to
evidence such amendment hereof; or
(y) if any such amendment shall permit one or more changes to, or the
elimination of, any provisions hereof which, at the date of the execution
and delivery hereof or at any time thereafter, are required by the Trust
Indenture Act to be contained herein or are contained herein to reflect any
provisions of the Trust Indenture Act as in effect at such date, this
Indenture shall be deemed to have been amended to effect such changes or
elimination, and the Company, the Guarantor and the Trustee may, without
the consent of any Holders, enter into an indenture supplemental hereto to
evidence such amendment.
SECTION 1102. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
Subject to the provisions of Section 1101, with the consent of the
Holders of a majority in aggregate principal amount of the Securities of all
series then Outstanding under this Indenture, considered as one class, by Act of
said Holders delivered to the Company, the Guarantor and the Trustee, the
Company, the Guarantor and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, or changing in
any manner or eliminating any of the provisions of, this Indenture; provided,
however, that if there shall be Securities of more than one series Outstanding
hereunder and if a proposed supplemental indenture shall directly affect the
rights of the Holders of Securities of one or more, but less than all, of such
series, then the consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all series so directly
affected, considered as one class, shall be required; and provided, further,
that if the Securities of any series shall have been issued in more than one
Tranche and if the proposed supplemental indenture shall directly affect the
rights of the Holders of Securities of one or more, but less than all, of such
Tranches, then the consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all Tranches so directly
affected, considered as one class, shall be required; and provided, further,
that no such supplemental indenture shall:
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(a) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security (other than pursuant to the
terms thereof), or reduce the principal amount thereof or the rate of
interest thereon (or the amount of any installment of interest thereon) or
change the method of calculating such rate or reduce any premium payable
thereon or reduce the amount of the principal of any Discount Security that
would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 702, or change the coin or currency (or other
property), in which any Security or the premium, if any, or the interest,
if any, thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Maturity of any Security,
without, in any such case, the consent of the Holder of such Security; or
(b) reduce the percentage in principal amount of the Outstanding
Securities of any series, or any Tranche thereof, the consent of the
Holders of which is required for any such supplemental indenture, or the
consent of the Holders of which is required for any waiver of compliance
with any provision of this Indenture or of any default hereunder and its
consequences, or reduce the requirements of Section 1204 for quorum or
voting, without, in any such case, the consent of the Holder of each
Outstanding Security of such series or Tranche; or
(c) modify any of the provisions of this Section, Section 506 or
Section 713 with respect to the Securities of any series or any Tranche
thereof (except to increase the percentages in principal amount referred to
in this Section or such other Sections or to provide that other provisions
of this Indenture cannot be modified or waived without, in any such case,
the consent of the Holder of each Outstanding Security of such series or
Tranche; provided, however, that this clause shall not be deemed to require
the consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section, or the deletion of this
proviso, in accordance with the requirements of Sections 811(b) and
1101(g).
A supplemental indenture which (x) changes or eliminates any covenant
or other provision of this Indenture which has expressly been included solely
for the benefit of the Holders of, or which is to remain in effect only so long
as there shall be Outstanding, Securities of one or more specified series, or
one or more Tranches thereof, or (y) modifies the rights of the Holders of
Securities of such series or Tranches with respect to such covenant or other
provision, shall be deemed not to affect the rights under this Indenture of the
Holders of Securities of any other series or Tranche.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Anything in this Indenture to the contrary notwithstanding, if the
Officer's Certificate, supplemental indenture or Board Resolution, as the case
may be, establishing the Securities of any series or Tranche shall so provide,
(a) the Holders of such Securities shall be deemed to have consented to a
supplemental indenture containing the additions, changes or eliminations to or
from the Indenture which shall be specified in such Officer's Certificate,
supplemental indenture or Board Resolution establishing such series or Tranche,
(b) no Act of such Holders shall be required to evidence such consent and (c)
such consent may be counted in the determination of whether or not the Holders
of the requisite principal amount of Securities shall have consented to such
supplemental indenture.
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SECTION 1103. 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 801) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties, immunities or liabilities under this Indenture or
otherwise.
SECTION 1104. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution and delivery of any supplemental indenture under
this Article this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby. Any supplemental indenture permitted by this
Article may restate this Indenture in its entirety, and, upon the execution and
delivery thereof, any such restatement shall supersede this Indenture as
theretofore in effect for all purposes.
SECTION 1105. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 1106. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series, or any Tranche thereof, authenticated and
delivered after the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company and the Guarantor shall so determine, new Securities
of any series, or any Tranche thereof, so modified as to conform, in the opinion
of the Trustee, the Company and Guarantor, to any such supplemental indenture
may be prepared and executed by the Company (with Guaranties of the Guarantor
endorsed thereon), and authenticated and delivered by the Trustee in exchange
for Outstanding Securities of such series or Tranche.
SECTION 1107. MODIFICATION WITHOUT SUPPLEMENTAL INDENTURE.
To the extent, if any, that the terms of any particular series of
Securities shall have been established in or pursuant to an Officer's
Certificate or a Board Resolution as contemplated by Section 301, and not in an
indenture supplemental hereto, additions to, changes in or the elimination of
any of such terms may be effected by means of a supplemental Officer's
Certificate or a supplemental Board Resolution, as the case may be, delivered
to, and accepted by, the Trustee; provided, however, that such supplemental
Officer's Certificate or supplemental Board Resolution shall not be accepted by
the Trustee or otherwise be effective unless all conditions set forth in this
Indenture which would be required to be satisfied if such additions, changes or
elimination were contained in a supplemental indenture shall have been
appropriately satisfied. Upon the acceptance thereof by the Trustee, any such
supplemental Officer's Certificate or supplemental Board Resolution shall be
deemed to be a "supplemental indenture" for purposes of Section 1104 and 1106.
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ARTICLE TWELVE
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1201. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of one or more, or all, series, or
any Tranche or Tranches thereof, may be called at any time and from time to time
pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series or Tranches.
SECTION 1202. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Securities of one or more, or all, series, or any Tranche or Tranches thereof,
for any purpose specified in Section 1201, to be held at such time and (except
as provided in subsection (b) of this Section) at such place in the Borough of
Manhattan, The City of New York, as the Trustee shall determine, or, with the
approval of the Company, at any other place. Notice of every such meeting,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 106, not less than twenty-one (21) nor more than one hundred
eighty (180) days prior to the date fixed for the meeting.
(b) The Trustee may be asked to call a meeting of the Holders of
Securities of one or more, or all, series, or any Tranche or Tranches thereof,
by the Company, the Guarantor or by the Holders of thirty-three percentum (33%)
in aggregate principal amount of all of such series and Tranches, considered as
one class, for any purpose specified in Section 1201, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting. If
the Trustee shall have been asked by the Company or the Guarantor to call such a
meeting, the Company or the Guarantor, as the case requires, shall determine the
time and place for such meeting and may call such meeting by giving notice
thereof in the manner provided in subsection (a) of this Section, or shall
direct the Trustee, in the name and at the expense of the Company or the
Guarantor, as the case requires, to give such notice. If the Trustee shall have
been asked to call such a meeting by Holders in accordance with this subsection
(b), and the Trustee shall not have given the notice of such meeting within
twenty-one (21) days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein, then the Company,
the Guarantor or the Holders of Securities of such series and Tranches, in the
principal amount above specified may determine the time and the place in the
Borough of Manhattan, The City of New York, or in such other place as shall be
determined or approved by the Company or the Guarantor, for such meeting and may
call such meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
(c) Any meeting of Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, shall be valid without notice if the
Holders of all Outstanding Securities of such series or Tranches are present in
person or by proxy and if representatives of the Company, the Guarantor and the
Trustee are present, or if notice is waived in writing before or after the
meeting by the Holders of all Outstanding Securities of such series, or any
Tranche or Tranches thereof, or by such of them as are not present at the
meeting in person or by proxy, and by the Company, the Guarantor and the
Trustee.
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<PAGE>
SECTION 1203. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities of one
or more, or all, series, or any Tranche or Tranches thereof, a Person shall be
(a) a Holder of one or more Outstanding Securities of such series or Tranches,
or (b) a Person appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series or Tranches by such
Holder or Holders. The only Persons who shall be entitled to attend any meeting
of Holders of Securities of any series or Tranche shall be the Persons entitled
to vote at such meeting and their counsel, any representatives of the Trustee
and its counsel and any representatives of the Company and the Guarantor and
their counsel.
SECTION 1204. QUORUM; ACTION.
The Persons entitled to vote a majority in aggregate principal amount
of the Outstanding Securities of the series and Tranches with respect to which a
meeting shall have been called as hereinbefore provided, considered as one
class, shall constitute a quorum for a meeting of Holders of Securities of such
series and Tranches; provided, however, that if any action is to be taken at
such meeting which this Indenture expressly provides may be taken by the Holders
of a specified percentage, which is less than a majority, in principal amount of
the Outstanding Securities of such series and Tranches, considered as one class,
the Persons entitled to vote such specified percentage in principal amount of
the Outstanding Securities of such series and Tranches, considered as one class,
shall constitute a quorum. In the absence of a quorum within one hour of the
time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series and Tranches, be dissolved. In
any other case the meeting may be adjourned for such period as may be determined
by the chairman of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may be
further adjourned for such period as may be determined by the chairman of the
meeting prior to the adjournment of such adjourned meeting. Except as provided
by Section 1205(e), notice of the reconvening of any meeting adjourned for more
than thirty (30) days shall be given as provided in Section 106 not less than
ten (10) days prior to the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series and Tranches which shall constitute a
quorum.
Except as limited by Section 1102, any resolution presented to a
meeting or adjourned meeting duly reconvened at which a quorum is present as
aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in aggregate principal amount of the Outstanding Securities of the
series and Tranches with respect to which such meeting shall have been called,
considered as one class; provided, however, that, except as so limited, any
resolution with respect to any action which this Indenture expressly provides
may be taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of such series and
Tranches, considered as one class, may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Securities of such series and Tranches, considered as one
class.
Any resolution passed or decision taken at any meeting of Holders of
Securities duly held in accordance with this Section shall be binding on all the
Holders of Securities of the series and Tranches with respect to which such
meeting shall have been held, whether or not present or represented at the
meeting.
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<PAGE>
SECTION 1205. ATTENDANCE AT MEETINGS; DETERMINATION OF VOTING RIGHTS;
CONDUCT AND ADJOURNMENT OF MEETINGS.
(a) Attendance at meetings of Holders of Securities may be in person
or by proxy; and, to the extent permitted by law, any such proxy shall remain in
effect and be binding upon any future Holder of the Securities with respect to
which it was given unless and until specifically revoked by the Holder or future
Holder (except as provided in Section 104(g)) of such Securities before being
voted.
(b) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities in regard to proof of the holding of such
Securities and of the appointment of proxies and in regard to the appointment
and duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem appropriate. Except as
otherwise permitted or required by any such regulations and approved by the
Company and the Guarantor, the holding of Securities shall be proved in the
manner specified in Section 104 and the appointment of any proxy shall be proved
in the manner specified in Section 104. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
(c) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or the Guarantor or by Holders as provided in Section 1202(b), in
which case the Company or the Guarantor or the Holders of Securities of the
series and Tranches calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons entitled to
vote a majority in aggregate principal amount of the Outstanding Securities of
all series and Tranches represented at the meeting, considered as one class.
(d) At any meeting each Holder or proxy shall be entitled to one vote
for each One Thousand Dollars ($1,000) principal amount of Outstanding
Securities held or represented by such Holder; provided, however, that no vote
shall be cast or counted at any meeting in respect of any Security challenged as
not Outstanding and ruled by the chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote, except as a Holder of a
Security or proxy.
(e) Any meeting duly called pursuant to Section 1202 at which a quorum
is present may be adjourned from time to time by Persons entitled to vote a
majority in aggregate principal amount of the Outstanding Securities of all
series and Tranches represented at the meeting, considered as one class; and the
meeting may be held as so adjourned without further notice.
SECTION 1206. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders shall
be by written ballots on which shall be subscribed the signatures of the Holders
or of their representatives by proxy and the principal amounts and serial
numbers of the Outstanding Securities, of the series and Tranches with respect
to which the meeting shall have been called, held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports of all votes cast at the meeting. A record in duplicate of the
proceedings of each meeting of Holders shall be prepared by the secretary of the
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<PAGE>
meeting and there shall be attached to such record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that such notice was given as provided in Section 1202
and, if applicable, Section 1204. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
SECTION 1207. ACTION WITHOUT MEETING.
In lieu of a vote of Holders at a meeting as hereinbefore contemplated
in this Article, any request, demand, authorization, direction, notice, consent,
waiver or other action may be made, given or taken by Holders by written
instruments as provided in Section 104.
ARTICLE THIRTEEN
GUARANTY
SECTION 1301. GUARANTY.
The Guarantor hereby unconditionally guarantees to the Holder of each
Security Outstanding from time to time, and to the Trustee on behalf of such
Holder, the due and punctual payment of the principal of and premium, if any,
and interest, if any, on such Security when and as the same shall become due and
payable, whether at the Stated Maturity, by declaration of acceleration, call
for redemption, or otherwise, in accordance with the terms of such Security and
of this Indenture. In case of the failure of the Company punctually to make any
such payment, the Guarantor shall cause such payment to be made punctually when
and as the same shall become due and payable, as aforesaid, as if such payment
were made by the Company.
The obligations of the Guarantor hereunder shall be absolute and
unconditional irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of such Security or this Indenture, any failure
to enforce the provisions of such Security or this Indenture, or any waiver,
modification or indulgence granted to the Company with respect thereto, by the
Holder of such Security or the Trustee or any other circumstance which may
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor; provided, however, that notwithstanding the foregoing, no such
waiver, modification or indulgence shall, without the consent of the Guarantor,
increase the principal amount of such Security, or increase the interest rate
thereon, or change any redemption provisions thereof (including any change to
increase any premium payable upon redemption thereof), or change the Stated
Maturity thereof, or increase the principal amount of any Discount Security that
would be due and payable upon a declaration of acceleration of the maturity
thereof pursuant to Article Seven of this Indenture.
The Guarantor hereby waives the benefits of diligence, presentment,
demand for payment, any requirement that the Trustee or any of the Holders
exhaust any right or take any action against the Company or any other Person,
filing of claims with a court in the event of insolvency or bankruptcy of the
Company, any right to require a proceeding first against the Company, protest or
notice with respect to any Security or the indebtedness evidenced thereby and
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<PAGE>
all demands whatsoever, and covenants that this Guaranty will not be discharged
in respect of any Security except by complete performance of the obligations
contained in such Security and in this Guaranty. This Guaranty shall constitute
a guaranty of payment and not of collection. The Guarantor hereby agrees that,
in the event of a default in payment of principal of, or premium, if any, or
interest, if any, on, any Security, whether at its Stated Maturity, by
declaration of acceleration, call for redemption, or otherwise, legal
proceedings may be instituted by the Trustee on behalf of, or by, the Holder of
such Security, subject to the terms and conditions set forth in this Indenture,
directly against the Guarantor to enforce this Guaranty without first proceeding
against the Company.
The obligations of the Guarantor hereunder with respect to any
Security shall be continuing and irrevocable until the date upon which the
entire principal of and premium, if any, and interest, if any, on such Security
have been, or have been deemed pursuant to the provisions of Article Six to have
been, paid in full or otherwise discharged.
The Guarantor shall be subrogated to all rights of the Holders of the
Securities upon which its Guaranty is endorsed against the Company in respect of
any amounts paid by the Guarantor on account of such Securities pursuant to the
provisions of its Guaranty or this Indenture; provided, however, that the
Guarantor shall not be entitled to enforce or to receive any payments arising
out of, or based upon, such right of subrogation until the principal of and
premium, if any, and interest, if any, on all Securities issued hereunder shall
have been paid in full.
This Guaranty shall remain in full force and effect and continue
notwithstanding any petition filed by or against the Company for liquidation or
reorganization, the Company becoming insolvent or making an assignment for the
benefit of creditors or a receiver or trustee being appointed for all or any
significant part of the Company's assets, and shall, to the fullest extent
permitted by law, continue to be effective or reinstated, as the case may be, if
at any time payment of any Security is, pursuant to applicable law, rescinded or
reduced in amount, or must otherwise be restored or returned by any Holder of
such Security, whether as a "voidable preference", "fraudulent transfer" or
otherwise, all as though such payment or performance had not been made. In the
event that any payment in respect of any Security, or any part thereof, is
rescinded, reduced, restored or returned, such Security shall, to the fullest
extent permitted by law, be reinstated and shall be deemed paid only to the
extent of the amount paid and not so rescinded, reduced, restored or returned.
SECTION 1302. EXECUTION AND DELIVERY OF GUARANTY.
The Guaranty to be endorsed on the Securities of each series shall
include the terms of the Guaranty set forth in Section 1301 and any other terms
that may be set forth as established pursuant to Section 301. The Guarantor
hereby agrees to execute its Guaranty, in a form established pursuant to
Section 201, to be endorsed on each Security authenticated and delivered by the
Trustee.
The Guaranty shall be executed on behalf of the Guarantor by an
Authorized Officer of the Guarantor. The signature of any such officer on the
Guarantee may be manual or facsimile.
A Guaranty bearing the manual or facsimile signature of an individual
who was at the time of execution an Authorized Officer of the Guarantor shall
bind the Guarantor, notwithstanding that such individual has ceased to be such
Authorized Officer prior to the authentication and delivery of the Security on
which such Guaranty is endorsed or was not such Authorized Officer at the date
of such Guaranty.
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<PAGE>
The delivery of any Security by the Company, after the authentication
and delivery thereof by the Trustee hereunder, shall constitute due delivery of
the Guaranty endorsed thereon on behalf of the Guarantor. The Guarantor hereby
agrees that its Guaranty set forth in Section 1301 shall remain in full force
and effect notwithstanding any failure to endorse a Guaranty on any Security.
The Guarantor by its execution of this Indenture hereby authorizes the Company,
in the name and on behalf of the Guarantor, to confirm the applicable Guaranty
to the Holder of each Security authenticated and delivered hereunder by its
execution and delivery of each such Security.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 1401. LIABILITY SOLELY CORPORATE.
No recourse shall be had for the payment of the principal of or
premium, if any, or interest, if any, on any Securities, any Guaranties or any
part thereof, or for any claim based thereon or otherwise in respect thereof, or
of the indebtedness represented thereby, or upon any obligation, covenant or
agreement under this Indenture, against any incorporator, stockholder, officer
or director, as such, past, present or future of the Company or the Guarantor or
of any predecessor or successor corporation of either of them (either directly
or through the Company or the Guarantor, as the case may be, or a predecessor or
successor corporation of either of them), whether by virtue of any
constitutional provision, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly agreed and understood
that this Indenture and all the Securities and Guaranties are solely corporate
obligations, and that no personal liability whatsoever shall attach to, or be
incurred by, any incorporator, stockholder, officer or director, past, present
or future, of the Company or of the Guarantor or of any predecessor or successor
corporation, either directly or indirectly through the Company or the Guarantor
or any predecessor or successor corporation of either of them, because of the
indebtedness hereby authorized or under or by reason of any of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or Guaranties or to be implied herefrom or therefrom; and such personal
liability, if any, is hereby expressly waived and released as a condition of,
and as part of the consideration for, the execution and delivery of this
Indenture and the issuance and delivery of the Securities and the Guaranties.
-------------------------
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
DQE CAPITAL CORPORATION
By:/s/ Frosina C. Cordisco
-----------------------------------------
Name: Frosina C. Cordisco
Title: Treasurer
DQE, Inc.
By:/s/ Gary L. Schwass
-----------------------------------------
Name: Gary L. Schwass
Title: Executive Vice President and
Chief Financial Officer
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
By:/s/ Cathy F. Gaines
-----------------------------------------
Name: Cathy F. Gaines
Title: Account Executive
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(See legend at the end of this Security for
restrictions on transfer and change of form)
DQE CAPITAL CORPORATION
Medium-Term Notes, Series A
Unconditionally Guaranteed as to Payment of Principal,
Premium, if any, and Interest, if any, by
DQE, Inc.
Stated Maturity: September 15, 2039 Redeemable: Yes X No
--- ---
Interest Rate: 8 3/8 % per annum Initial Redemption Date:
September 16, 2004
Original Interest Accrual Date: and at any time thereafter
September 16, 1999
Interest Payment Dates: March 15, Initial Redemption Price: 100%
June 15, September 15
and December 15, commencing Reduction Percentage: N/A
December 15, 1999
Regular Record Dates: February 28(29), Redemption Limitation Date: N/A
May 31, August 31 and November 30 Redemption Limitation Date: N/A
OID: Yes No X
-- ---
Total Amount of OID (%):
Yield to Maturity (%):
Initial Accrual
Period OID (%):
(Constant - Yield Method)
_________________________
This Security is not a Discount Security
within the meaning of the within-mentioned Indenture.
---------------------------
Principal Amount Registered No.
$ 100,000,000 CUSIP 23329F201
DQE CAPITAL CORPORATION, a corporation organized and existing
under the laws of the State of Delaware (herein called the "Company,"
which term includes any successor corporation under the Indenture
referred to below), for value received, hereby promises to pay to
or registered assigns, the principal sum of 100,000,000
DOLLARS
<PAGE>
on the Stated Maturity specified above, and to pay interest thereon
from the Original Interest Accrual Date specified above or from the
most recent Interest Payment Date to which interest has been paid or
duly provided for, in arrears on the Interest Payment Dates specified
above in each year, commencing with the Interest Payment Date next
succeeding the Original Interest Accrual Date specified above, and at
Maturity, at the Interest Rate per annum specified above, until the
principal hereof is paid or duly provided for. The interest so
payable, and paid or duly provided for, on any Interest Payment Date
shall, 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
specified above (whether or not a Business Day) next preceding such
Interest Payment Date. Notwithstanding the foregoing, (a) if the
Original Interest Accrual Date of this Security is after a Regular
Record Date and before the corresponding Interest Payment Date,
interest so payable for the period from and including the Original
Interest Accrual Date to but excluding such Interest Payment Date
shall be paid on the next succeeding Interest Payment Date to the
Holder hereof on the related Regular Record Date; and (b) interest
payable at Maturity shall be paid to the Person to whom principal
shall be paid. Except as otherwise provided in said Indenture, any
such interest not so paid or duly provided for shall 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 Unpaid Interest to
be fixed by the Trustee, notice of which shall be given to Holders of
Securities of this series not less than 15 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.
Payment of the principal of and premium, if any, on this
Security and interest hereon at Maturity shall be made upon
presentation of this Security at the Corporate Trust Office of Bank
One Trust Company, NA (formerly known as The First National Bank of
Chicago) in Chicago, Illinois, or at such other office or agency as
may be designated for such purpose by the Company from time to time.
Payment of interest on this Security (other than interest at
Maturity) shall be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security
Register, except that (a) if such Person shall be a securities
depositary, such payment may be made by such other means in lieu of
check, as shall be agreed upon by the Company, the Trustee and such
Person and (b) upon the written request of a Holder of not less than
$10 million in aggregate principal amount of Securities (as
hereinafter defined) of the same series and Tranche delivered to the
Company and the Paying Agent at least ten days prior to any Interest
Payment Date, payment of interest on such Securities to such Holder
on such Interest Payment Date shall be made by wire transfer of
immediately available funds to an account maintained within the
continental United States specified by such Holder or, if such Holder
maintains an account with the entity acting as Paying Agent, by
deposit into such account. Payment of the principal of and premium,
if any, and interest on this Security, as aforesaid, shall be made in
such coin or currency of the United States of America as at the time
of payment shall be legal tender for the payment of public and
private debts.
This Security is one of a duly authorized issue of securities of
the Company (herein called the "Securities"), issued and issuable in
one or more series under an Indenture, dated as of August 1, 1999
(such Indenture as originally executed and delivered and as
supplemented or amended from time to time thereafter, together with
any constituent instruments establishing the terms of particular
Securities, being herein called the "Indenture"), of the Company and
DQE, Inc. (the "Guarantor") to Bank One Trust Company, NA (formerly
known as The First National Bank of Chicago), trustee herein called
the "Trustee," which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a description of the respective
rights, limitations of rights, duties and immunities of the Company,
the Trustee and the Holders of the Securities thereunder and of the
terms and conditions upon which the Securities are, and are to be,
authenticated and delivered and guaranteed. The acceptance of this
Security shall be deemed to constitute the consent and agreement by
the Holder hereof to all of the terms and provisions of the
Indenture. This Security is one of the series designated above.
2
<PAGE>
If any Interest Payment Date, any Redemption Date or the Stated
Maturity shall not be a Business Day (as hereinafter defined),
payment of the amounts due on this Security on such date may be made
on the next succeeding Business Day; and, if such payment is made or
duly provided for on such Business Day, no interest shall accrue on
such amounts for the period from and after such Interest Payment
Date, Redemption Date or Stated Maturity, as the case may be, to such
Business Day.
If, as specified above, this Security is redeemable, this
Security is subject to redemption at any time on or after the Initial
Redemption Date specified above, as a whole or in part, at the
election of the Company, at the applicable redemption price (as
described below) plus accrued interest to the date fixed for
redemption. Such redemption price shall be the Initial Redemption
Price specified above for the twelve-month period commencing on the
Initial Redemption Date and shall decline for the twelve-month period
commencing on each anniversary of the Initial Redemption Date by a
percentage of principal amount equal to the Reduction Percentage
specified above until such redemption price is 100% of the principal
amount of this Security to be redeemed.
Notwithstanding the foregoing, the Company may not, prior to the
Redemption Limitation Date, if any, specified above, redeem this
Security as contemplated above as a part of, or in anticipation of,
any refunding operation by the application, directly or indirectly,
of moneys borrowed having an effective interest cost to the Company
(calculated in accordance with generally accepted financial practice)
less than the effective interest cost to the Company (similarly
calculated) of this Security.
Notice of redemption shall be given by mail to Holders of
Securities, not less than 30 days nor more than 60 days prior to the
date fixed for redemption, all as provided in the Indenture. As
provided in the Indenture, notice of redemption at the election of
the Company as aforesaid may state that such redemption shall be
conditional upon the receipt by the Trustee of money sufficient to
pay the principal of and premium, if any, and interest, if any, on
this Security on or prior to the date fixed for such redemption; a
notice of redemption so conditioned shall be of no force or effect if
such money is not so received and, in such event, the Company shall
not be required to redeem this Security.
In the event of redemption of this Security in part only, a new
Security or Securities of this series, of like tenor, for the
unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the
principal of this Security may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the Trustee to enter into one or more supplemental
indentures for the purpose of adding any provisions to, or changing
in any manner or eliminating any of the provisions of, the Indenture
with the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities of all series then
Outstanding under the Indenture, considered as one class; provided,
however, that if there shall be Securities of more than one series
Outstanding under the Indenture and if a proposed supplemental
indenture shall directly affect the rights of the Holders of
Securities of one or more, but less than all, of such series, then
the consent only of the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all series so directly
affected, considered as one class, shall be required; and provided,
further, that if the Securities of any series shall have been issued
in more than one Tranche and if the proposed supplemental indenture
shall directly affect the rights of the Holders of Securities of one
or more, but less than all, of such Tranches, then the consent only
of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all Tranches so directly affected,
considered as one class, shall be required; and provided, further,
3
<PAGE>
that the Indenture permits the Trustee to enter into one or more
supplemental indentures for limited purposes without the consent of
any Holders of Securities. The Indenture also contains provisions
permitting the Holders of a majority in principal amount of the
Securities then Outstanding, on behalf of the Holders of all
Securities, 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 therefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
As provided in the Indenture and subject to certain limitations
therein set forth, this Security or any portion of the principal
amount hereof will be deemed to have been paid for all purposes of
the Indenture and to be no longer Outstanding thereunder, and, at the
election of the Company, the Company's entire indebtedness in respect
thereof will be satisfied and discharged, if there has been
irrevocably deposited with the Trustee or any Paying Agent (other
than the Company), in trust, money in an amount which will be
sufficient and/or Eligible Obligations, the principal of and interest
on which when due, without regard to any reinvestment thereof, will
provide moneys which, together with moneys so deposited, will be
sufficient to pay when due the principal of and interest on this
Security when due.
The Indenture contains terms, provisions and conditions relating
to the consolidation or merger of the Company or the Guarantor with
or into, and the conveyance or other transfer, or lease, of assets
to, another Person, to the assumption by such other Person, in
certain circumstances, of all of the obligations of the Company or
the Guarantor under the Indenture and on the Securities and to the
release and discharge of the Company and the Guarantor, in certain
circumstances, from such obligation.
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 corporate trust office of Bank One
Trust Company, NA (formerly known as The First National Bank of
Chicago) in Chicago, Illinois or such other office or agency as may
be designated by the Company from time to time, 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 of authorized
denominations and of like tenor and aggregate principal amount, will
be issued to the designated transferee or transferees.
The Securities of this series are issuable only as registered
Securities, without coupons, and in denominations of $1,000 and any
integral multiple thereof (except that the Securities of the Tranche
of which this Security is a part shall be in minimum denominations of
$25 which may be increased in multiples 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 the same series and Tranche, of any
authorized denominations, as requested by the Holder surrendering the
same, and of like tenor upon surrender of the Security or Securities
to be exchanged at the corporate trust office of Bank One Trust
Company, NA (formerly known as The First National Bank of Chicago) in
Chicago, Illinois or such other office or agency as may be designated
by the Company from time to time.
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.
4
<PAGE>
Prior to due surrender 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 absolute owner hereof for all purposes (subject to
Section 307 of the Indenture), 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.
The Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York,
except to the extent that the Trust Indenture Act shall be applicable.
As used herein, "Business Day" means any day, other than a
Saturday or Sunday, which is not a day on which banking institutions
or trust companies in The City of New York, New York or other city in
which is located any office or agency maintained for the payment of
principal, premium, if any, or interest on this Security, are
authorized or required by law, regulation or executive order to
remain closed. All other terms used in this Security which are
defined in the Indenture shall have the meanings assigned to them in
the Indenture.
As provided in the Indenture, no recourse shall be had for the
payment of the principal of or premium, if any, or interest on any
Securities or any guaranties, or any part of either thereof, or for
any claim based thereon or otherwise in respect thereof, or of the
indebtedness represented thereby, or upon any obligation, covenant or
agreement under the Indenture, against, and no personal liability
whatsoever shall attach to, or be incurred by, any incorporator,
shareholder, officer or director, as such, past, present or future of
the Company or the Guarantor or of any predecessor or successor
corporation (either directly or through the Company or the Guarantor,
as the case requires, or a predecessor or successor corporation) of
either thereof, whether by virtue of any constitutional provision,
statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly agreed and understood that
the Indenture and all the Securities and the Guaranties endorsed
therein are solely corporate obligations and that any such personal
liability is hereby expressly waived and released as a condition of,
and as part of the consideration for, the execution of the Indenture
and the issuance of the Securities and the Guaranties.
Unless the certificate of authentication hereon has been
executed by the Trustee or an Authenticating Agent by manual
signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
5
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed.
DQE CAPITAL CORPORATION
By:
----------------------------
Name:
Title:
<PAGE>
GUARANTY
DQE, Inc., a corporation organized under the laws
of the Commonwealth of Pennsylvania (the "Guarantor", which
term includes any successor under the Indenture (the
"Indenture") referred to in the Security upon which this
Guarantee is endorsed), for value received, hereby
unconditionally guarantees to the Holder of the Security
upon which this Guaranty is endorsed, the due and punctual
payment of the principal of and premium, if any, and
interest, if any, on such Security when and as the same
shall become due and payable, whether at the Stated
Maturity, by declaration of acceleration, call for
redemption, or otherwise, in accordance with the terms of
such Security and of the Indenture. In case of the failure
of DQE Capital Corporation, a corporation organized under
the laws of the State of Delaware (the "Company", which
term includes any successor under the Indenture),
punctually to make any such payment, the Guarantor shall
cause such payment to be made punctually when and as the
same shall become due and payable, as aforesaid, as if such
payment were made by the Company.
The obligations of the Guarantor hereunder shall
be absolute and unconditional irrespective of, and shall be
unaffected by, any invalidity, irregularity or
unenforceability of such Security or the Indenture, any
failure to enforce the provisions of such Security or the
Indenture, or any waiver, modification or indulgence
granted to the Company with respect thereto, by the Holder
of such Security or the Trustee or any other circumstance
which may otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor; provided,
however, that notwithstanding the foregoing, no such
waiver, modification or indulgence shall, without the
consent of the Guarantor, increase the principal amount of
such Security, or increase the interest rate thereon, or
change any redemption provisions thereof (including any
change to increase any premium payable upon redemption
thereof) or change the Stated Maturity thereof, or increase
the principal amount of any Discount Security that would be
due and payable upon a declaration of acceleration of the
maturity thereof pursuant to Article Seven of the
Indenture.
The Guarantor hereby waives the benefits of
diligence, presentment, demand for payment, any requirement
that the Trustee or the Holder of such Security exhaust any
right or take any action against the Company or any other
Person, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to
require a proceeding first against the Company, protest or
notice with respect to such Security or the indebtedness
evidenced thereby and all demands whatsoever, and covenants
that this Guaranty will not be discharged in respect of
such Security except by complete performance of the
obligations contained in such Security and in this
Guaranty. This Guaranty shall constitute a guaranty of
payment and not of collection. The Guarantor hereby agrees
that, in the event of a default in payment of principal of,
or premium, if any, or interest, if any, on such Security,
whether at its Stated Maturity, by declaration of
acceleration, call for redemption, or otherwise, legal
proceedings may be instituted by the Trustee on behalf of,
or by, the Holder of such Security, subject to the terms
and conditions set forth in the Indenture, directly against
the Guarantor to enforce this Guaranty without first
proceeding against the Company.
The obligations of the Guarantor hereunder with
respect to such Security shall be continuing and
irrevocable until the date upon which the entire principal
7
<PAGE>
of and premium, if any, and interest, if any, on such
Security have been, or have been deemed pursuant to the
provisions of Article Seven of the Indenture to have been,
paid in full or otherwise discharged.
The Guarantor shall be subrogated to all rights
of the Holder of such Security against the Company in
respect of any amounts paid by the Guarantor on account of
such Security pursuant to the provisions of this Guaranty
or the Indenture; provided, however, that the Guarantor
shall not be entitled to enforce or to receive any payments
arising out of, or based upon, such right of subrogation
until the principal of and premium, if any, and interest,
if any, on all Securities issued under the Indenture shall
have been paid in full.
This Guaranty shall remain in full force and
effect and continue notwithstanding any petition filed by
or against the Company for liquidation or reorganization,
the Company becoming insolvent or making an assignment for
the benefit of creditors or a receiver or trustee being
appointed for all or any significant part of the Company's
assets, and shall, to the fullest extent permitted by law,
continue to be effective or reinstated, as the case may be,
if at any time payment of the Security upon which this
Guaranty is endorsed, is, pursuant to applicable law,
rescinded or reduced in amount, or must otherwise be
restored or returned by the Holder of such Security,
whether as a "voidable preference", "fraudulent transfer",
or otherwise, all as though such payment or performance had
not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, such
Security shall, to the fullest extent permitted by law, be
reinstated and shall be deemed paid only to the extent of
the amount paid and not so rescinded, reduced, restored or
returned.
This Guaranty shall not be valid or obligatory
for any purpose until the certificate of authentication of
the Security upon which this Guaranty is endorsed shall
have been manually executed by or on behalf of the Trustee
under the Indenture.
All terms used in this Guaranty which are defined
in such Indenture shall have the meanings assigned to them
in such Indenture.
This Guaranty shall be governed by and construed
in accordance with the laws of the State of New York,
except to the extent that the Trust Indenture Act shall be
applicable.
8
<PAGE>
IN WITNESS WHEREOF, the Guarantor has caused this
Guaranty to be executed as of the date first written above.
DQE, INC.
By:
----------------------------
Name:
Title:
9
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated:
--------------------------------
BANK ONE TRUST COMPANY, NA
as Trustee
By:
-----------------------------------
Authorized Officer
10
<PAGE>
This Security may not be transferred or exchanged, nor may
any purported transfer be registered, except (i) this Security may
be transferred in whole, and appropriate registration of transfer
effected, if such transfer is by Cede & Co., as nominee for The
Depository Trust Company (the "Depositary"), to the Depositary, or
by the Depositary to another nominee thereof, or by any nominee of
the Depositary to any other nominee thereof, or by the Depositary
or any nominee thereof to any successor securities depositary or
any nominee thereof; and (ii) this Security may be exchanged for
definitive Securities registered in the respective names of the
beneficial holders hereof, and thereafter shall be transferable
without restrictions if: (A) the Depositary, or any successor
securities depositary, shall have notified the Company and the
Trustee that it is unwilling or unable to continue to act as
securities depositary with respect to the Securities and the
Trustee shall not have been notified by the Company within ninety
(90) days of the identity of a successor securities depositary
with respect to the Securities or (B) the Company shall have
delivered to the Trustee a Company Order to the effect that the
Securities shall be so exchangeable on and after a date specified
therein.
-----------------
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
--------------------------------------------------------------------
[please insert social security or other identifying
number of assignee]
--------------------------------------------------------------------
[please print or typewrite name and address of assignee]
the within Security of DQE CAPITAL CORPORATION and does hereby
irrevocably constitute and appoint_______________________________,
Attorney, to transfer said Security on the books of the
within-mentioned Company, with full power of substitution in the
premises.
Dated:
----------------------- ------------------------------------
Notice: The signature to this assignment must correspond with the
name as written upon the face of the Security in every particular
without alteration or enlargement or any change whatsoever.
11
