Central and South West Corporation
1616 Woodall Rodgers Freeway
P. O. Box 660164
Dallas, Texas 75202
February 4, 2000
Securities and Exchange Commission 450 5th Street N.W.
Washington, D.C. 20549
Re: Southwestern Electric Power Company
Form S-3 Registration Statement
Ladies and Gentlemen:
In accordance with the requirements of the Securities Act of
1933, as amended (the "Act"), electronically transmitted herewith is a filing
consisting of the above referenced Form S-3 Registration Statement pursuant to
the Act.
A wire transfer in the amount of $66,000 has been sent to
Mellon Bank for credit to the Securities and Exchange Commission Account No.
910-8739 in payment of the registration fee.
If you have any questions regarding this filing, please
contact Robert B. Williams, (212) 530-5516, at Milbank, Tweed, Hadley & McCloy
LLP or the undersigned at (214) 777-1205.
Best regards,
/s/STEPHEN D. WISE
Stephen D. Wise
cc: Robert B. Williams, Esq.
As filed with the Securities and Exchange Commission on February 4, 2000
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
SOUTHWESTERN ELECTRIC POWER COMPANY
(Exact name of registrant as specified in its charter)
Delaware 72-0323455
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
428 Travis Street
Shreveport, Louisiana 71156-0001
(318) 673-3000
(Address, including zip code, and telephone
number, including area code, of registrant's
principal executive offices)
Wendy G. Hargus
Treasurer
Southwestern Electric Power Company
c/o Central and South West Corporation
1616 Woodall Rogers Freeway
Dallas, Texas 75202
(214) 777-1000
(Names, address, including zip codes, and telephone numbers, including area
codes, of agents for service)
Copies to:
Robert B. Williams, Esq.
Joris M. Hogan, Esq.
Milbank, Tweed, Hadley & McCloy LLP
1 Chase Manhattan Plaza
New York, New York 10005
(212) 530-5000
Approximate date of commencement of proposed sale to the public: From time
to time after the registration statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, as amended, other than securities offered only in connection with
dividend or interest reinvestment plans, please check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. |_|
CALCULATION OF REGISTRATION FEE
Proposed Proposed Maximum
Title of Each Maximum Aggregate Offering Amount of
Class of Amount to Offering Price Registration
Securities to be be Registered Price Per Fee
Registered Unit
Senior Notes $250,000,000 100% $250,000,000 $66,000
Estimate solely for the purpose of calculating the registration fee.
The Registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
Subject to Completion, Dated February ,2000
PROSPECTUS
SOUTHWESTERN ELECTRIC POWER COMPANY
$250,000,000
SENIOR NOTES
Southwestern Electric Power Company produces, purchases, transmits,
distributes and sells electricity to approximately 422,000 customers in
northeastern Texas, northwestern Louisiana and western Arkansas. We are a
wholly-owned subsidiary of Central and South West Corporation, a Dallas-based
diversified utility holding company.
We intend to offer from time to time in one or more series up to
$250,000,000 of debentures, notes or other types of senior unsecured debt
securities known as Senior Notes.
When we offer a particular series of Senior Notes, we will prepare and
issue a supplement to this prospectus setting forth the particular terms of the
offered Senior Notes, including the amounts, prices and other terms of the
series. Each supplement is called a prospectus supplement. You should read this
prospectus and any prospectus supplement carefully before you make any decision
to invest in the Senior Notes.
These securities have not been approved or disapproved by the Securities and
Exchange Commission or any state securities commission nor have any of these
organizations determined that this prospectus is accurate or complete.
Any representation to the contrary is a criminal offense.
We may offer the Senior Notes directly or through underwriters, agents
or dealers. Each prospectus supplement will provide the terms of the plan of
distribution relating to the respective series of Senior Notes.
"Plan of Distribution" below also provides more information on this topic.
The date of this prospectus is ,2000.
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission, or SEC, utilizing a "shelf" registration
process. Under this shelf process, we may sell the Senior Notes described in
this prospectus in one or more offerings up to a total dollar amount of
$250,000,000. This prospectus provides a general description of the Senior Notes
being offered. Each time we sell a series of Senior Notes we will provide a
prospectus supplement containing specific information about the terms of that
series of Senior Notes and the related offering. It is important for you to
consider the information contained in this prospectus and the related prospectus
supplement together with additional information described under the heading
"Documents Incorporated by Reference" in making your investment decision.
We are subject to the informational requirements of the Securities Act
of l934, and therefore we file annual, quarterly and current reports, proxy
statements and other information with the SEC. You may read and copy the
registration statement, with exhibits, as well as the reports and other
information we file with the SEC, at the SEC's public reference facilities at
its principal offices at Judiciary Plaza, 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549 and its regional offices at Northwest Atrium Center, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661-2511 and 7 World Trade
Center, Suite 1300, New York, New York 10048. You may obtain information on the
operation of the SEC's public reference facilities and how to request documents
by calling 1-800-SEC-0330. Information we file is also available at the SEC's
Internet site at http://www.sec.gov. You can also obtain these materials at set
rates from the Public Reference Section of the SEC at its principal office at
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549.
You should rely only on the information incorporated by reference or
provided in this prospectus or any supplement. We have not authorized anyone to
provide you with different information. You should not assume that the
information in this prospectus or any prospectus supplement is accurate as of
any date other than the date on the front of those documents. This prospectus
does not constitute an offer to sell or a solicitation of an offer to buy the
Senior Notes in any jurisdiction to any person to whom it is unlawful to make
such offer or solicitation in such jurisdiction.
DOCUMENTS INCORPORATED BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. Information incorporated by reference is
considered to be part of this prospectus. Later information that we file with
the SEC will automatically update and supersede this information. We incorporate
by reference the documents listed below and any future filings made with the SEC
under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934
until we sell all the Senior Notes.
- - Annual Report on Form 10-K for the year ended December 31, 1998;
- - Quarterly Reports on Form 10-Q for the quarters ended March 31,
June 30 and September 30, 1999, and
- - Current Reports on Form 8-K dated December 7, 1999, December 17, 1999,
January 25, 2000 and February 4, 2000.
We will provide to each person, including any beneficial owner of
Senior Notes, to whom a copy of this prospectus is delivered, a copy of any or
all of the information that has been incorporated by reference in this
prospectus but not delivered with this prospectus. We will deliver this
information upon written or oral request and provide this information at no cost
to the requester. You should direct your requests to:
Ms. Ellen Whalen
Manager of Investment Services
Central and South West Corporation
1616 Woodall Rodgers Freeway
Dallas, Texas 75202
(214) 777-1000
REPORTS TO HOLDERS OF SENIOR NOTES
We are not required to furnish annual and quarterly reports to holders
of Senior Notes. Our annual report on Form 10-K contains audited financial
statements which we will provide to holders of Senior Notes upon request.
FORWARD-LOOKING STATEMENTS
We make statements in this prospectus, any prospectus supplement and
the documents we incorporate by reference that are considered forward-looking
statements within the meaning of the Securities Act of 1933 and the Securities
Exchange Act of 1934. Sometimes these statements will contain words such as
"believes," "expects," "intends," "plans" and other similar words. These
statements are not guarantees of our future performance and are subject to
risks, uncertainties and other important factors that could cause our actual
performance or achievements to be materially different from those we project.
These risks, uncertainties and factors include:
- general economic, business and regulatory conditions;
- the impact of Central and South West Corporation's proposed
merger with American Electric Power, including any regulatory
conditions imposed on the merger;
- energy cost, supply and demand;
- federal and state regulatory initiatives that increase
competition;
- federal and state regulatory developments and changes in law;
- availability, terms and use of capital;
- environmental issues;
- weather; and
- industry restructuring and cost recovery.
Given these uncertainties, you should not place undue reliance on these
forward-looking statements. Please see the documents we incorporate by reference
for more information on these factors. These forward-looking statements
represent our estimates and assumptions only as of the date of this prospectus.
We undertake no obligation to publicly update or revise any forward-looking
statements, whether as a result of new information, future events or otherwise.
PROSPECTUS SUMMARY
This summary does not contain all the information that may be important to
you. You should read the entire prospectus, the prospectus supplement, and the
documents, financial statements and other information incorporated by reference
in the prospectus carefully before making an investment decision.
The Offering
Issuer......................................Southwestern Electric Power Company
Securities Offered..........................Senior Notes
Aggregate Principal Amount..................Up to $250,000,000
Interest Payment Dates......................On dates to be determined
Maturity Date...............................To be determined
Redemption..................................To be determined
Ranking.....................................The Senior Notes are our senior
unsecured notes ranking equally
with any of our other unsecured
indebtedness that is not
specifically subordinated
to the Senior Notes. The Senior
Notes are subordinate to $362
million of our outstanding first
mortgage bonds which are secured
by a mortgage on substantially all
of our properties. The Senior
Notes rank junior to the
first mortgage bonds with respect
to rights in and to such mortgaged
property. We may in the future
issue additional series of first
mortgage bonds.
Use of Proceeds We will use the net
proceeds from the sale of the Senior
Notes to repay a portion of our
long-term debt, all or a portion of
our short-term borrowings, and for
other general corporate purposes.
The Company
Business....................................We are a public utility engaged in
the production, purchase,
transmission, distribution and sale
of electricity.
Service Area Our service area includes
approximately 25,000 square miles in
portions of northeastern Texas,
northwestern Louisiana and western
Arkansas.
Population of Service Area..................Approximately 942,000
Customers Approximately 422,000
<PAGE>
SELECTED FINANCIAL INFORMATION
We have derived the summary selected financial data set forth below for the
years ended December 31, 1996, 1997, 1998 and 1999 from our financial
statements. Arthur Andersen LLP, independent public accountants, have audited
the financial statements for the three-year period ended December 31, 1998 and
the reports of Arthur Andersen LLP thereon are incorporated by reference in this
prospectus. The summary selected financial data as of and for the year ended
December 31, 1999, is unaudited.
You should read the information presented below in conjunction with the
historical financial statements and notes thereto contained in our 1998 Annual
Report on Form 10-K and our Quarterly Report on Form 10-Q for the period ended
September 30, 1999, which are incorporated by reference in this prospectus.
(Dollar amounts in thousands)
Year Ended December 31,
1999 1998 1997 1996
(Unaudited)
Operating Revenues $ 965,027 $952,952 $939,869 $920,786
Operating Income $ 147,524 $150,787 $139,409 $138,083
Net Income for Common
Stock $ 83,426 $96,542 $92,254 $63,503
Net Utility Plant $1,847,189 $1,840,854 $1,855,578 $1,851,958
Capitalization at
December 31, 1999
(Unaudited)
Actual %
Long-Term Debt $ 495,973 39
Company Obligated Mandatorily
Redeemable Preferred Securities
of Subsidiary Trust Holding Solely
Parent Junior Subordinated
Debentures.................. 110,000 9
Preferred Stock.............. 4,706 0
Common Equity............................. 668,678 52
Total.............................. $1,279,357 100
Short-........................ $140,898 -
Long-Term Debt and Preferred Stock
Currently Maturing... $ 45,595 -
<PAGE>
SOUTHWESTERN ELECTRIC POWER COMPANY
We are a public utility company engaged in the production, purchase,
transmission, distribution and sale of electricity in portions of northeastern
Texas, northwestern Louisiana and western Arkansas. We serve approximately
422,000 customers in the northeastern Texas, northwestern Louisiana and western
Arkansas area. Central and South West Corporation, a registered public utility
holding company under the Public Utility Holding Company Act of 1935, owns all
of our issued and outstanding Common Stock. Our executive offices are located at
428 Travis Street, Shreveport, Louisiana 71156-0001, telephone number (318)
673-3000.
RATIOS OF EARNINGS TO FIXED CHARGES
Our ratios of earnings to fixed charges for each of the years ended
December 31, 1995 through 1999 are as follows:
Year Ended December 31,
1999 1998 1997 1996 1995
Ratio of Earnings to Fixed Charges(1) 2.97 3.53 3.46 2.81 3.80
(1) For purposes of computing the ratios: (i) earnings consist of operating
income plus federal income taxes, deferred income taxes and investment tax
credits, other income and deductions, allowance for funds (both borrowed and
equity) used during construction and interest portion of financing leases, and
(ii) fixed charges consist of interest on long-term debt and short-term debt,
and other interest charges and interest portion of financing leases.
USE OF PROCEEDS
We plan to use the net proceeds from the sale of the Senior Notes to
repay a portion of our long-term debt, all or a portion of our short-term
borrowings and for other general corporate purposes, subject to applicable
regulatory requirements. If we do not use the net proceeds immediately, we may
temporarily invest them in short-term, interest-bearing obligations.
DESCRIPTION OF THE SENIOR NOTES
General. We will issue Senior Notes under a Senior Note Indenture between us and
the Senior Note Trustee, The Bank of New York, a New York banking corporation.
We have summarized selected provisions of the Senior Note Indenture below. This
is a summary and is not complete. It does not describe all exceptions and
qualifications contained in the Senior Note Indenture. You should read the
Senior Note Indenture we filed as an exhibit to the registration statement. In
the summary below, we have included references to section numbers of the Senior
Note Indenture so that you can locate the summarized provisions. Capitalized
terms not defined in this prospectus have the meanings given to them in the
Senior Note Indenture.
<PAGE>
There is no requirement under the Senior Note Indenture that future
issues of our debt securities be issued under the Senior Note Indenture. We will
be free to use other indentures or documentation, containing provisions
different from those included in the Senior Note Indenture or applicable to one
or more issues of Senior Notes, in connection with future issues of other debt
securities.
The Senior Note Indenture does not limit the aggregate principal amount
of the Senior Notes that we may issue under the Senior Note Indenture. The
Senior Note Indenture provides that the Senior Notes will be issued in one or
more series. The Senior Notes may be issued at various times and may have
differing maturity dates and may bear interest at differing rates. The
prospectus supplement applicable to each issue of Senior Notes will specify:
(1) the title of the Senior Notes;
(2) any limit on the aggregate principal amount of the Senior Notes;
(3) the person to whom any interest on the Senior Notes shall be
payable, if other than the person in whose name the Senior Notes are registered
at the close of business on the regular Record Date;
(4) the dates or dates on which the principal of the Senior Notes will
be payable or how the date or dates will be determined;
(5) the rate or rates at which the Senior Notes will bear interest, or
how the rate or rates will be determined and the date or dates from which
interest will accrue;
(6) the dates on which interest will be payable;
(7) the record dates for payments of interest;
(8) the place or places, if any, in addition to the office of the
Trustee, where the principal of, and premium, if any, and interest, if any, on
the Senior Notes will be payable;
(9) the period or periods within which the price or prices at which
and the terms and conditions upon which the Senior Notes may be repaid, in whole
or in part, at the option of the Holder thereof;
(10) any sinking fund or other provisions or options held by Holders of
the Senior Notes that would obligate us to repurchase or redeem the Senior
Notes;
(11) the percentage, if less than 100% of the principal amount of the
Senior Notes that will be payable if the maturity of the Senior Notes is
accelerated;
(12) any changes or additions to the events of default under the Senior
Note Indenture or changes or additions to our covenants under the Senior Note
Indenture;
(13) any collateral, security, assurance or guarantee for the Senior
Notes; and
(14) any other specific terms applicable to the Senior Notes.
Unless we otherwise indicate in the applicable prospectus supplement,
the Senior Notes will be denominated in United States currency in minimum
denominations of $1,000 and multiples of $1,000.
Unless we otherwise indicate in the applicable prospectus supplement,
there are no provisions in the Senior Note Indenture or the Senior Notes that
require us to redeem, or permit the Holders to cause a redemption of, the Senior
Notes or that otherwise protect the Holders in the event that we incur
substantial additional indebtedness, whether or not in connection with a change
in control of our company. However, any change in control transaction that
involves the incurrence of additional long-term indebtedness, as notes or
otherwise, by us in such a transaction may require approval of state utility
regulatory authorities and, possibly, of federal utility regulatory authorities.
Our management believes that such approvals would be uncertain in any
transaction that would result in us, or our successor, having a highly leveraged
capital structure.
Registration, Transfer, Exchange and Form. Senior Notes of any series will
be exchangeable for other Senior Notes of the same series of any authorized
denominations and of a like aggregate principal amount and tenor. (Section 305)
Unless we otherwise indicate in the applicable prospectus supplement,
Senior Notes may be presented for registration of transfer, duly endorsed or
accompanied by a duly executed written instrument of transfer, at the office or
agency maintained for such purpose, without service charge except for
reimbursement of taxes and other governmental charges as described in the Senior
Note Indenture. (Section 305)
In the event of any redemption of Senior Notes of any series, the
Senior Note Trustee will not be required to exchange or register a transfer of
any Senior Notes of the series selected, called or being called for redemption
except the unredeemed portion of any Senior Note being redeemed in part.
(Section 305)
Book-Entry Only System. The following discussion pertains to Senior Notes
that are issued in book-entry only form.
One or more global notes would be issued to DTC, The Depository Trust
Company, or its nominee. DTC would keep a computerized record of its
participants (for example, your broker) whose clients have purchased the Senior
Notes. The participant would then keep a record of its clients who purchased the
Senior Notes. A global note may not be transferred, except that DTC, its
nominees and their successors may transfer an entire global note to one another.
Under book-entry only, we will not issue certificates to individual
holders of the Senior Notes. Beneficial interests in global notes will be shown
on, and transfers of global notes will be made only through, records maintained
by DTC and its participants.
DTC has advised us that it is:
(1) a limited-purpose trust company organized under the New York
Banking Law;
(2) a "banking organization" within the meaning of the New York Banking Law;
(3) a member of the Federal Reserve System;
(4) a "clearing corporation" within the meaning of the New York Uniform
Commercial Code; and
(5) a "clearing agency" registered pursuant to the provisions of Section 17A of
the Securities Exchange Act of 1934.
DTC holds securities that its participants deposit with DTC. DTC also
facilitates the settlement among direct participants of securities transactions,
such as transfers and pledges, in deposited securities through computerized
records for direct participants' accounts. This eliminates the need to exchange
certificates. Direct participants include securities brokers and dealers, banks,
trust companies, clearing corporations and certain other organizations.
DTC's book-entry system is also used by other organizations such as
securities brokers and dealers, banks and trust companies that work through a
direct participant. The rules that apply to DTC and its participants are on file
with the SEC.
DTC is owned by a number of its direct participants and by the New York
Stock Exchange, Inc., The American Stock Exchange, Inc. and the National
Association of Securities Dealers, Inc.
We will wire principal and interest payments to DTC's nominee. We and
the Senior Note Trustee will treat DTC's nominee as the owner of the global
notes for all purposes. Accordingly, we and the Senior Note Trustee will have no
direct responsibility or liability to pay amounts due on the Senior Notes to
owners of beneficial interests in the global notes.
It is DTC's current practice, upon receipt of any payment of principal
or interest, to credit direct participants' accounts on the payment date
according to their respective holdings of beneficial interests in the global
notes as shown on DTC's records as of the record date for such payment. In
addition, it is DTC's current practice to assign any consenting or voting rights
to direct participants whose accounts are credited with securities on a record
date, by using an omnibus proxy. Payments by participants to owners of
beneficial interests in the global notes, and voting by participants, will be
governed by the customary practices between the participants and owners of
beneficial interests, as is the case with securities held for the account of
customers registered in "street name." However, these payments will be the
responsibility of the participants and not of DTC, the Senior Note Trustee, or
us.
Senior Notes represented by a global note would be exchangeable for
Senior Note certificates with the same terms in authorized denominations only
if:
(1) DTC notifies us that it is unwilling or unable to continue as
depository or if DTC ceases to be a clearing agency registered under applicable
law; or
(2) we instruct the Senior Note Trustee that the global note is now
exchangeable; or
(3) an event of default has occurred and is continuing.
According to the DTC, the foregoing information with respect to DTC has
been provided to the financial community for informational purposes only and is
not intended to serve as a representation, warranty, or contract modification of
any kind.
Paying Agents. We will maintain an office or agency where Senior Notes
may be presented or surrendered for payment. We will give prompt written notice
to the Senior Note Trustee of the location, and any change in the location of
the office or agency. If at any time we fail to maintain any required office or
agency or fail to furnish the Senior Note Trustee with the address, any
presentations and surrenders may be made or served at the corporate trust office
of the Senior Note Trustee, and the Senior Note Trustee shall act as our agent
to receive all presentations and surrenders. (Section 1002)
All monies we pay to a paying agent for the payment of principal of,
interest or premium, if any, on any Senior Note which remain unclaimed at the
end of two years after the principal, interest or premium shall have become due
and payable will be repaid to us. The Holder of the Senior Note will thereafter
look only to us for payment.
(Section 1003)
Consolidation, Merger, Conveyance, Sale or Transfer. Unless otherwise
provided in a supplemental indenture and described in a prospectus supplement,
we may consolidate or merge with any Person or transfer our properties and
assets substantially as an entirety to any Person provided that:
(1) the successor is a Person organized and existing under the laws of the
United States or any State or the District of Columbia; and
(2) the successor expressly assumes by a supplemental indenture the due and
punctual payment of the principal of, and premium, if any, and interest, if any,
on all the Senior Notes and the performance of every covenant of the Senior Note
Indenture that we would otherwise have to perform. (Section 801)
Limitation on Liens. If this covenant is made applicable to the Senior
Notes of any particular series, we have agreed that we will not, nor will we
permit any of our subsidiaries to, issue, assume or guarantee any notes, bonds,
debentures or other similar evidences of indebtedness for borrowed money
(collectively referred to as "debt") secured by a mortgage, lien, pledge,
security interest or other encumbrance (a "lien") on or with respect to any of
our properties or assets or assets or properties of our subsidiaries unless we
make effective a provision under which the Senior Notes of that series are
secured equally and ratably with any and all borrowed money that we secure. This
restriction will not, however, apply to the following:
(1) liens in existence on the date of the original issue of the Senior
Notes to which this restriction is made applicable;
(2) liens created solely for the purpose of securing debt incurred to
finance, refinance or refund the purchase price or cost, including the cost of
construction, of property acquired after the date hereof, by purchase,
construction or otherwise, or liens in favor of guarantors of obligations or
debt representing, or incurred to finance, refinance or refund, such purchase
price or cost, provided that no such lien shall extend to or cover any property
other than the property so acquired and improvements thereon;
(3) liens which secure only indebtedness owing by any of our
subsidiaries, to one or more of our subsidiaries, or to us and one or more of
our subsidiaries;
(4) liens on any property or assets acquired from a Person which is
merged with or into us or any subsidiary, or any liens on the property or assets
of any corporation or other entity existing at the time such corporation or
other entity becomes a subsidiary and, in either case, is not created as a
result of or in connection with or in anticipation of any such transaction,
unless liens were created to secure or provide the payment of any part of the
purchase price of such corporation;
(5) any lien on any property or assets existing at the time of
acquisition thereof and which is not created as a result of or in connection
with or in anticipation of such acquisition, unless the lien was created to
secure or provide for the payment of any part of the purchase price of such
property or assets; or
(6) any extension, renewal or replacement of any lien referred to in
the foregoing clauses (1) through (5), provided that the principal amount of
debt so secured thereby shall not exceed the principal amount of debt so secured
at the time of such extension, renewal or replacement, and that such extension,
renewal or replacement lien shall be limited to all or part of substantially the
same property which secured the lien extended, renewed or replaced, plus
improvements on such property.
Notwithstanding the foregoing, we and one or more of our subsidiaries
may issue, assume or guarantee debt secured by liens which would otherwise be
subject to the foregoing restrictions in an aggregate principal amount which,
together with the aggregate outstanding principal amount of all of our other
debt which would otherwise be subject to the foregoing restrictions, not
including debt permitted to be secured under clauses (1) through (6) above, does
not at the time of issuance, assumption or guarantee thereof exceed twenty
percent of the Net Tangible Assets.
Net Tangible Assets is defined as the total of all assets, including
revaluations thereof as a result of commercial appraisals, price level
restatement or otherwise, appearing on our and our subsidiaries' balance sheet,
net of applicable reserves and deductions, but excluding goodwill, trade names,
trademarks, patents, unamortized debt discount and all other like intangible
assets, which term shall not be construed to include such revaluations, less the
aggregate of our and our subsidiaries' current liabilities appearing on such
balance sheet. The following types of transactions, among others, shall not be
deemed to create debt secured by liens: Liens required by any contract or
statute in order to permit us or our subsidiaries to perform any contract or
subcontract made by us with or at the request of a governmental entity or any
department, agency or instrumentality thereof, or to secure partial, progress,
advance or any other payments to us or any of our subsidiaries by such
governmental unit pursuant to the provisions of any contract or statute.
(Section 1007)
Modification of the Senior Note Indenture. Under the Senior Note
Indenture or any supplemental indenture, our rights and the rights of the
Holders of Senior Notes may be changed with the consent of the Holders of a
majority in principal amount of the outstanding Senior Notes, of all series
affected by the change, voting as one class, provided that the following changes
may not be made without the consent of the Holders of each outstanding Senior
Note affected thereby:
(1) change the fixed date upon which the principal of or the interest
on any Senior Note is due and payable, or reduce the principal amount thereof or
the rate of interest thereon or any premium payable upon the redemption thereof,
or reduce the amount of the principal of an Original Issue Discount Security
that would be payable upon a declaration of acceleration of the maturity
thereof, or change any place of payment where, or the currency in which, any
Senior Note or any premium or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any payment on or after the date
such payment is due or, in the case of redemption, on or after the date fixed
for such redemption (the "Redemption Date");
(2) reduce the stated percentage of Senior Notes, the consent of the
Holders of which is required for any modification of the applicable Senior Note
Indenture or for waiver by the Holders of certain of their rights; or
(3) modify certain provisions of the Senior Note Indenture. (Section
902)
An Original Issue Discount Security means any security authenticated
and delivered under the Senior Note Indenture which provides for an amount less
than the principal amount thereof to be due and payable upon the declaration of
acceleration of the maturity thereof.
The Senior Note Indenture also contains provisions permitting us and
the Senior Note Trustee to amend the Senior Note Indenture in certain
circumstances without the consent of the Holders of any Senior Notes to evidence
a merger, the replacement of the Senior Note Trustee and for certain other
purposes.
Events of Default. An Event of Default with respect to any series of
Senior Notes is defined in the Senior Note Indenture as being any one of the
following:
(1) failure to pay interest on the Senior Notes of that series for 30
days after payment is due;
(2) failure to pay principal or any premium on the Senior Notes of that
series when due;
(3) failure to perform other covenants in the Senior Note Indenture
after 90 days after we are given written notice
(4) failure to pay any sinking fund installment when due;
(5) certain events of bankruptcy, insolvency, reorganization,
receivership or liquidation relating to us. (Section 501)
An Event of Default regarding a particular series of Senior Notes does
not necessarily constitute an Event of Default for any other series of Senior
Notes.
We will be required to file with the Senior Note Trustee annually an
officers' certificate as to the absence of default in performance of certain
covenants in the Senior Note Indenture. (Section 1008) The Senior Note Indenture
provides that the Senior Note Trustee may withhold notice to the Holders of the
Senior Notes of any default, except in payment of principal of, or premium, if
any, or interest on, the Senior Notes or in the payment of any sinking fund
installment with respect to the Senior Notes, if the Senior Note Trustee in good
faith determines that it is in the interest of the Holders of the Senior Notes
to do so. (Section 602)
The Senior Note Indenture provides that, if an Event of Default with
respect to the Senior Notes specified therein shall have happened and be
continuing, either the Senior Note Trustee or the Holders of 33% or more in
aggregate principal amount of the Senior Notes may declare the principal amount
of all the Senior Notes to be due and payable immediately. However, if we shall
cure all defaults and certain other conditions are met, such declaration may be
annulled and past defaults may be waived by the Holders of a majority in
aggregate principal amount of the Senior Notes. (Section 502)
Subject to the provisions of the Senior Note Indenture relating to the
duties of the Senior Note Trustee, the Senior Note Trustee will be under no
obligation to exercise any of its rights or powers under the Senior Note
Indenture at the request or direction of any of the Holders of the Senior Notes,
unless the Holders shall have offered to the Senior Note Trustee reasonable
indemnity. (Section 603)
Subject to the provision for indemnification, the Holders of a majority
in principal amount of the Senior Notes will have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Senior Note Trustee, or exercising any trust or power conferred on the Senior
Note Trustee with respect to the Senior Notes. However, the Senior Note Trustee
shall have the right to decline to follow any direction if the Senior Note
Trustee shall determine that the action so directed conflicts with any law or
the provisions of the Senior Note Indenture or if the Senior Note Trustee shall
determine that the action would be prejudicial to Holders not taking part in the
direction. (Section 512)
Defeasance. We may elect either (a) to be discharged from all of our
obligations with respect to the Senior Notes, except for obligations to register
the transfer or exchange of Senior Notes, replace stolen, lost or mutilated
Senior Notes, to maintain paying agencies and to hold moneys for payment in
trust, or (b) to be discharged from our obligations under sections of the Senior
Note Indenture described under "--Consolidation, Merger, Conveyance, Sale or
Transfer" and "--Limitation of Liens" or to certain covenants relating to
corporate existence and maintenance of properties and insurance, in each case,
if:
(1) we deposit with the Senior Note Trustee, in trust, money, or in
certain cases, U.S. Government Obligations sufficient to pay and discharge (i)
the principal of, and premium, if any, and interest, if any, on the outstanding
Senior Notes on the dates such payments are due, in accordance with the terms of
the Senior Notes and (ii) any mandatory sinking fund payments applicable to the
Senior Notes on the day on which payments are due and payable in accordance with
the terms of the Senior Note Indenture and of the Senior Notes;
(2) no Event of Default or event which with notice or lapse of time
would become an Event of Default, including by reason of such deposit, with
respect to the Senior Notes shall have occurred and be continuing on the date of
such deposit;
(3) we deliver to the Senior Note Trustee an opinion of counsel to the
effect (i) that the Holders will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit and defeasance of certain
obligations; (ii) that such provision would not cause any outstanding Senior
Notes then listed on any national securities exchange to be delisted as a result
thereof; and (iii) that the defeasance trust is not, or is registered as, an
investment company under the Investment Company Act of 1940; and
(4) we have delivered to the Senior Note Trustee an officers'
certificate and an opinion of counsel, each stating that all conditions
precedent provided for in the Senior Note Indenture relating to the satisfaction
and discharge of the Senior Notes have been complied with. (Sections 403, 1011)
Discharged means, with respect to the Senior Notes of any series, the
discharge of the entire indebtedness represented by, and our obligations under,
the Senior Notes of such series and in the satisfaction of all of our
obligations under, the Senior Note Indenture relating to the Senior Notes of
such series, except (a) the rights of Holders of the Senior Notes of such series
to receive, from the trust fund established pursuant to the Senior Note
Indenture, payment of the principal of and interest and premium, if any, on the
Senior Notes of such series when such payments are due, (b) our obligations with
respect to the Senior Notes of such series with respect to registration,
transfer, exchange and maintenance of a place of payment and (c) the rights,
powers, trusts, duties, protections and immunities of the Senior Note Trustee
under the Senior Note Indenture. (Section 101)
If we have deposited or caused to be deposited money or U.S. Government
Obligations to pay or discharge the principal of, and premium, if any, and
interest, if any, on the outstanding Senior Notes to and including a Redemption
Date on which all of the outstanding Senior Notes are to be redeemed, such
Redemption Date shall be irrevocably designated by a Board of Directors
resolution delivered to the Senior Note Trustee on or prior to the date of
deposit of such money or U.S. Government Obligations, and such Board of
Directors resolution shall be accompanied by an irrevocable Company Request that
the Senior Note Trustee give notice of such redemption in our name and at our
expense not less than 30 nor more than 60 days prior to such Redemption Date in
accordance with the Senior Note Indenture. (Sections 403)
U.S. Government Obligations means direct obligations of the United
States for the payment of which its full faith and credit is pledged, or
obligations of a person controlled or supervised by and acting as an agency or
instrumentality of the United States and the payment of which is unconditionally
guaranteed by the United States. U.S. Government Obligations shall also include
a depositary receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation or a specific payment of interest on or
principal of any such U.S. Government Obligation held by such custodian for the
account of a holder of a depositary receipt. However, except as required by law,
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depositary receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligation evidenced by such
depositary receipt. (Section 101)
Resignation or Removal of Senior Note Trustee. The Senior Note Trustee
may resign at any time by giving written notice to us specifying the day upon
which the resignation is to take effect. The resignation will take effect
immediately upon the later of the appointment of a successor Senior Note Trustee
and such specified day.
(Section 610)
The Senior Note Trustee may be removed at any time by an instrument or
concurrent instruments in writing delivered to the Senior Note Trustee and us
and signed by the Holders, or their attorneys-in-fact, of at least a majority in
principal amount of the then outstanding Senior Notes. In addition, under
certain circumstances, we may remove the Senior Note Trustee upon notice to the
Holder of each Senior Note outstanding and the Senior Note Trustee, and
appointment of a successor Senior Note Trustee. (Section 610)
No Recourse Against Others. The Senior Note Indenture provides that no
recourse will be had against any of our incorporators, stockholders, officers or
directors, as such, past, present or future or any successor Person, either
directly or through us or any successor Person, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise in the case of the following:
(1) the payment of the principal of or any premium or interest on any Senior
Note, or for any claim based thereon or otherwise in respect thereof;
(2) under or upon any obligation, covenant or agreement of ours, contained in
the Senior Note Indenture or in any supplemental indenture, or in any Senior
Note; or
(3) because of the creation of any indebtedness represented thereby.
It shall be expressly understood that all such liability is expressly
waived and released as a condition of, and in consideration for, the execution
of the Senior Note Indenture and the issuance of the Senior Notes. (Section 114)
Such waiver may not be effective to waive liabilities under the Federal
securities laws and it is the view of the SEC that such a waiver is against
public policy.
Concerning the Senior Note Trustee. The Trustee under the Senior Note
Indenture, and affiliates of the Trustee, are also trustees under other
indentures and trust agreements of ours.
LEGAL OPINIONS
Legal opinions relating to the validity of the Senior Notes will be
given by Milbank, Tweed, Hadley & McCloy LLP, 1 Chase Manhattan Plaza, New York,
New York 10005, our counsel, and Sidley & Austin, One First National Plaza,
Chicago, Illinois 60603, counsel for any underwriters, agents or dealers. Sidley
& Austin and Milbank, Tweed, Hadley & McCloy LLP have represented CSW and
affiliates of CSW, including us, from time to time in connection with certain
legal matters.
EXPERTS
The audited financial statements and schedules incorporated by
reference in this prospectus and elsewhere in the registration statement have
been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their report dated February 12, 1999, with respect thereto, and are
incorporated herein by reference in reliance upon the authority of said firm as
experts in accounting and auditing in giving said reports.
PLAN OF DISTRIBUTION
We may use the following methods to sell the Senior Notes:
(1) through negotiation with one or more underwriters;
(2) through one or more agents or dealers designated from time to time;
(3) directly to purchasers; or
(4) through any combination of the above.
The distribution of the Senior Notes may be effected from time to time in one or
more transactions at a fixed price or prices which may be changed, at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices. A prospectus supplement or a supplement
thereto will describe the method of distribution of the Senior Notes of any
series.
If we use any underwriters in the sale of Senior Notes, we will enter
into an underwriting agreement, distribution agreement or similar agreement with
such underwriters prior to the time of sale, and the names of the underwriters
used in the transaction will be set forth in the prospectus supplement or a
supplement thereto relating to such sale. If an underwriting agreement is
executed, the Senior Notes will be acquired by the underwriters for their own
account and may be resold from time to time in one or more transactions,
including negotiated transactions, at a fixed public offering price or at
varying prices determined at the time of the sale. Unless we otherwise indicate
in the prospectus supplement, the underwriting or purchase agreement will
provide that the underwriter or underwriters are obligated to purchase all of
the Senior Notes offered in the prospectus supplement if any are purchased.
If any of the Senior Notes are sold through agents designated by us
from time to time, the prospectus supplement or a supplement thereto will name
any such agent, set forth any commissions payable by us to any such agent and
the obligations of such agent with respect to the Senior Notes. Unless otherwise
indicated in the prospectus supplement or a supplement thereto, any such agent
will be acting on a best efforts basis for the period of its appointment.
Certain persons participating in an offering of the Senior Notes may
engage in transactions that stabilize, maintain or otherwise affect the price of
the Senior Notes. Specifically, the underwriters, if any, may overallot in
connection with the offering, and may bid for, and purchase, the Senior Notes in
the open market.
The Senior Notes of any series, when first issued, will have no
established trading market. Any underwriters or agents to or through whom Senior
Notes are sold by us for public offering and sale may make a market in such
Senior Notes, but underwriters and agents will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can be
given as to the liquidity of the trading market for any Senior Notes.
In connection with the sale of the Senior Notes, any purchasers,
underwriters or agents may receive compensation from us or from purchasers in
the form of concessions or commissions. The underwriters will be, and any agents
and any dealers participating in the distribution of the Senior Notes may be,
deemed to be underwriters within the meaning of the Securities Act of 1933. The
agreement between us and any purchasers, underwriters or agents will contain
reciprocal covenants of indemnity, and will provide for contribution by us in
respect of our indemnity obligations, between us and the purchasers,
underwriters, or agents against certain liabilities, including liabilities under
the Securities Act of 1933.
Underwriters, dealers and agents may engage in transactions with, or
perform services for, us and our affiliates in the ordinary course of business.
<PAGE>
II-4
II-1
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated expenses in connection with the issuance and distribution
of the securities being registered, other than underwriting compensation, are:
Filing fee for registration statement............ $66,000*
Printing costs.............................. 10,000
Fees and expenses of Senior Note Trustee........ 10,000
Fees of rating agencies......................... 45,000
Fees of accountants.............................. 15,000
Reimbursement of underwriters' expenses and counsel
fees in connection with qualification or registration
of the Senior Notes under state securities or "blue
sky" laws 5,000
Expenses of Central and South West Services, Inc.... 5,000
Counsel Fees......................................... 100,000
Miscellaneous and incidental expenses, including
travel, telephone, copying, postage 5,000
Total................................................... $261,000
*Actual Amount
Item 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law provides broadly
for indemnification of directors and officers against claims and liabilities
against them in their capacities as such. The Company's bylaws also provide for
the indemnification of officers and directors by the Company. In addition, the
Company has purchased Directors' and Officers' Liability and Company
Reimbursement Liability Insurance which, in certain circumstances, provide for
payments to the directors and officers of the Company, in the event of such
liabilities.
Item 16. Exhibits
INDEX TO EXHIBITS
Exhibit No. Exhibit
1 Form of Underwriting Agreement for the Senior Notes.
3(a) Restated Articles of Incorporation (incorporated Incorporated
herein by reference to Incorporated Exhibit 3.4 by reference
to the Company's Form 10-Q for the Quarter
ended March 31, by reference 1997).
3(b) By-Laws (incorporated herein by reference to Incorporated
Exhibit 3.3 to the Company's Form 10-Q for by reference
the Quarter ended September 30, 1996).
4 Form of Senior Note Indenture.
5 Opinion of Milbank, Tweed, Hadley & McCloy LLP,
counsel for the Company, as to the legality of
the Senior Notes.
12(a) Statement re: computation of Ratio of Earnings
to Fixed Charges for the five years ended
December 31, 1998 (incorporated herein by
reference to Exhibit 12 to the Company's
1998 Annual Report on Form 10-K).
12(b) Statement re: computation of Ratio of Earnings to Fixed
Charges for the Incorporated twelve months ended September
30, 1999 (incorporated herein by reference by reference to
Exhibit 12.13 to the Company's Form 10-Q for the Quarter
ended September 30, 1999).
12(c) Statement re: computation of Ratio of Earnings to Fixed Charges
for the twelve months ended December 31, 1999
23(a) Consent of Arthur Andersen LLP.
23(b) Consent of Milbank, Tweed, Hadley & McCloy LLP (contained in Exhibit 5
above).
24 Power of Attorney (included on signature page of the registration
statement).
25 Form T-1 Statement of Eligibility under the Trust
Indenture Act of 1939 of Bank of New York, as Senior Note
Trustee, under the Senior Note Indenture.
27 Financial Data Schedule.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b); if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in this registration statement;
provided, however, that the undertakings set forth in paragraphs (i) and (ii)
above do not apply if the information required to be included in a
post-effective amendment by these paragraphs is contained in periodic reports
filed by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange
Act of 1934 that is incorporated by reference in this registration
statement shall be deemed to be a new registration statement relating
to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(5) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Shreveport, State of Louisiana, on February 4, 2000.
SOUTHWESTERN ELECTRIC POWER COMPANY
By:/s/ Wendy G. Hargus
Wendy G. Hargus
Treasurer
POWER OF ATTORNEY
Each person whose signature appears below hereby authorizes and
appoints Wendy G. Hargus and Stephen D. Wise or either of them, as his or her
attorney-in-fact, with full power of substitution and resubstitution to sign and
file on his or her behalf individually and in each such capacity stated below
any and all amendments and post-effective amendments to this registration
statement, including any amendment filed after the date hereof pursuant to Rule
462(b) under the Securities Act of 1933, as amended, as fully as such person
could do in person, hereby verifying and confirming all that said
attorney-in-fact, or either of them, or their or his substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on February 4, 2000.
Signature Title
/s/ Michael H. Madison President (principal executive officer); Director
Michael H. Madison
/s/ R. Russell Davis Controller (principal accounting and
financial officer)
R. Russell Davis
/s/ Karen C. Adams General Manager; Director
Karen C. Adams
/s/ E.R. Brooks Director
E.R. Brooks
/s/ James E. Davison Director
James E. Davison
/s/ Glenn Files Director
Glenn Files
/s/ Dr. Frederick E. Joyce Director
Dr. Frederick E. Joyce
/s/ John M. Lewis Director
John M. Lewis
/s/ William C. Peatross Director
William C. Peatross
/s/ Maxine P. Sarpy Director
Maxine P. Sarpy
<PAGE>
INDEX TO EXHIBITS
Exhibit No. Exhibit
1 Form of Underwriting Agreement for the Senior Notes. Incorporated
3(a) Restated Articles of Incorporation (incorporated herein by reference
by reference to Exhibit 3.4 to the Company's Form 10-Q
the Quarter ended March 31, 1997)
3(b) By-laws (incorporated herein by reference to Exhibit 3.1 Incorporated
to the Company's form 10-Q for the Quarter ended by reference
September 30, 1996.)
4 Form of Senior Note Indenture
5 Opinion of Milbank, Tweed, Hadley & McCloy LLP, counsel for
the Company, as to the legality of the Senior Notes.
12(b) Statement re: computation of Ratio of Earnings to Incorporated
Fixed Charges for the Incorporated twelve months ended by reference
September 30, 1999 (incorporated herein by reference
by reference to Exhibit 12.13 to the Company's
Form 10-Q for the Quarter
ended September 30, 1999).
12(c) Statement re: computation of Ratio of Earnings to Fixed Charges for
the twelve months ended December 31, 1999
23(a) Consent of Arthur Andersen LLP.
23(b) Consent of Milbank, Tweed, Hadley & McCloy LLP (contained in Exhibit
5 above).
24 Power of Attorney (included on signature page of the registration
statement).
25 Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939
of Bank of New York, as Senior Note Trustee, under the Senior Note
Indenture.
27 Financial Data Schedule.
Exhibit 1
SOUTHWESTERN ELECTRIC POWER COMPANY
FLOATING RATE NOTES
UNDERWRITING AGREEMENT
_______________, 20__
Southwestern Electric Power Company
428 Travis Street
Shreveport, Louisiana 71156-0001
Ladies and Gentlemen:
We (the "Managers") understand that Southwestern Electric
Power Company, a Delaware corporation (the "Company"), proposes to issue and
sell $250,000,000 aggregate principal amount of its Floating Rate Notes due
_______________, 20__ (the "Offered Securities"). Subject to the terms and
conditions set forth herein or incorporated by reference herein, the Company
hereby agrees to sell and the underwriter or underwriters named in Schedule I
hereto (such underwriter or underwriters being herein called the "Underwriters")
agree to purchase, severally and not jointly, the principal amounts of such
Offered Securities set forth opposite their names in Schedule I hereto at _____%
of their principal amount plus accrued interest, if any, from _______________,
20__ to the date of payment and delivery.
The Underwriters will pay for such Offered Securities at the
offices of Milbank, Tweed, Hadley & McCloy LLP, 1 Chase Manhattan Plaza, New
York, New York 10005 at 10:00 a.m., New York Time, on _______________, 20__, or
at such other place and time, not later than _______________, 20__ as shall be
mutually agreed. The Offered Securities shall be concurrently delivered to the
Underwriters at the offices of _______________________, New York, New York. In
accordance with Rule 15c6-1(d) promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), the Underwriters agree to this
alternative date for the payment of funds and delivery of the Offered Securities
in lieu of that required by paragraphs (a) and (c) of Rule 15c6-1 under the
Exchange Act.
The Offered Securities shall have the following terms:
Maturity: _______________, 20__
Interest Rate: As described in the Prospectus and applicable
Prospectus Supplement for the Offered Securities
Optional Redemption
Provisions: As described in the Prospectus and
applicable Prospectus Supplement for the Offered
Securities
Interest Payment
Dates: __________, __________, __________ and __________,
commencing __________, 20__
Address for Notices
to Managers under
Underwriting Agreement: [ ]
Address for Notices, etc.:
[ ]
Payment Method: Federal (same day) Funds by wire transfer to an
account to be specified by the Company.
Other Terms: As described in the Prospectus and applicable
Prospectus Supplement for the Offered Securities
Form of Designated
Securities: Book-entry only form represented by one or more
global securities deposited with The Depository
Trust Company ("DTC") or its designated custodian
for trading in the Same Day Funds Settlement System
of DTC, and to be made available for checking by
the Representatives at least twenty-four hours
prior to the Time of Delivery at the office of DTC.
All the provisions contained in the document entitled
Southwestern Electric Power Company Underwriting Agreement Standard Provisions
(Senior Notes-Shelf) dated _______________, 20__, a copy of which you and we
have previously received, are herein incorporated by reference in their entirety
and shall be deemed to be a part of this Underwriting Agreement to the same
extent as if such provisions had been set forth in full herein. References
herein and therein to numbered sections of the Underwriting Agreement shall mean
the numbered sections of such Standard Provisions.
<PAGE>
Please confirm your agreement by having an authorized officer
sign a copy of this Underwriting Agreement in the space set forth below and
returning the signed copy to us. This Underwriting Agreement may be signed in
any number of counterparts with the same effect as if the signature thereto and
hereto were upon the same instrument. It is understood that our acceptance of
this agreement on behalf of each of the Underwriters is or will be pursuant to
the authority set forth in a form of Agreement Among Underwriters, the form of
which shall be submitted to the Company for examination, upon request.
Very truly yours,
[ ]
By:_____________________________
Title:____________________________
(Acting severally on behalf of themselves and the
several Underwriters named in Schedule I hereto)
Accepted:
SOUTHWESTERN ELECTRIC POWER COMPANY
By:_________________________________
Name:
Title:
<PAGE>
Schedule I
Principal Amount of
Underwriters Offered Securities
[ ]
[ ]
[ ]
Total $250,000,000
<PAGE>
SOUTHWESTERN ELECTRIC POWER COMPANY
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (SENIOR NOTES-SHELF)
Dated _______________, 20__
From time to time Southwestern Electric Power Company, a
Delaware corporation (the "Company"), may enter into one or more underwriting
agreements that provide for the sale of designated securities to the several
underwriters named therein. The standard provisions set forth herein may be
incorporated by reference in any such underwriting agreement and any such
underwriting agreement, including the provisions incorporated therein by
reference, is herein referred to as the "Underwriting Agreement".
The Company proposes to issue the series of Senior Notes
specified in the attached Underwriting Agreement (the "Offered Securities")
pursuant to the provisions of its Indenture dated _______________, 20__, as the
same may from time to time be amended or supplemented (the "Indenture"), to The
Bank of New York, a New York banking association, as Trustee (the "Trustee").
The Offered Securities will have the terms and rights, including the maturity,
rate and times of payment of interest, selling price and redemption terms, and
other terms, as set forth in the Underwriting Agreement and Prospectus (as
hereinafter defined). The Underwriting Agreement shall be in the form of an
executed writing (which may be in counterparts) and may be evidenced by
facsimile or any other electronic transmission designed to produce a written
record of communications transmitted.
1. Representations and Warranties of the Company.
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (File No.
333-_____), including a prospectus, relating to the Offered Securities, and the
offering thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "Securities Act"), and such registration
statement has become effective. The Company has prepared or will promptly
prepare for filing with, or transmission for filing to, the Commission, pursuant
to Rule 424 under the Securities Act, a Prospectus Supplement (the "Supplement")
for the purpose of supplying information in respect of the public offering of
the Offered Securities, the names of the underwriter or group of underwriters
and other matters. The registration statement, as amended at the time it became
effective, including the information contained in the final prospectus filed
with the Commission pursuant to Rule 424(b) of the Securities Act, and the
prospectus, as supplemented by the Supplement, relating to the Offered
Securities in final form as filed with the Commission pursuant to Rule 424 under
the Securities Act, are hereinafter called the "Registration Statement" and the
"Prospectus", respectively. The term "Basic Prospectus" means the prospectus
included in the Registration Statement.
The term "preliminary prospectus" means a preliminary
prospectus supplement, if any, relating to the Offered Securities together with
the Basic Prospectus. Whenever the word "Registration Statement", "registration
statement", "Prospectus", "preliminary prospectus" or "prospectus" is used
herein it shall be deemed to include all documents incorporated therein by
reference pursuant to the requirements of Form S-3 under the Securities Act (the
"Incorporated Documents").
(b) The Commission has entered an order dated December 30,
1997, under the Public Utility Holding Company Act of 1935, as amended (the
"Holding Company Act"), permitting to become effective the Form U-1
Application-Declaration filed by the Company with respect to the issue and sale
of the Offered Securities. A copy of such order heretofore entered by the
Commission has been or will be delivered to the Underwriters.
(c) Except as otherwise contemplated herein, no approval,
authorization, consent, certificate or order of any State commission or
regulatory authority is necessary with respect to the
issuance or the sale of the Offered Securities by the Company.
(d) The Basic Prospectus relating to the Offered Securities as
originally filed, or as a part of any amendment thereto, any preliminary
prospectus at the time of its issuance, and the Registration Statement and the
Prospectus and any amendment or supplement to the Registration Statement or the
Prospectus as of their effective or issue dates, and as of the Closing Date (as
hereinafter defined), complied or will comply, in each case in all material
respects, with the provisions of the Securities Act and the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"), and the rules and regulations
of the Commission under said Acts, and neither the Registration Statement nor
any amendment thereto contains or will contain an untrue statement of a material
fact or omits or will omit to state a material fact required to be stated
therein or necessary in order to make the statements therein not misleading and
the Basic Prospectus, any preliminary prospectus, the Prospectus or any
amendment or supplement thereto does not include and will not include an untrue
statement of a material fact and does not omit and will not omit to state a
material fact required to be stated therein or necessary to make the statements
therein in light of the circumstances under which they were made not misleading;
provided that the foregoing representations and warranties in this subsection
(d) shall not apply to omissions from the Registration Statement or Prospectus
resulting from the failure of any of the Underwriters to furnish the Company
with the information pertaining to such Underwriters and the underwriting of the
Offered Securities required to complete the Registration Statement or the
Prospectus, to statements in the Form T-1 filed by the Trustee as exhibit to the
Registration Statement or to statements in or omissions from the Prospectus made
in reliance upon and in conformity with information furnished in writing to the
Company by any of the Underwriters for use in connection with the preparation of
the Prospectus. The Incorporated Documents that were filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), complied at their
respective times of filing, and any documents deemed to be incorporated in the
Registration Statement and Prospectus at all times during which a prospectus is
required to be delivered under the Securities Act will comply at their
respective times of filing, with the provisions of the Exchange Act and the
rules and regulations of the Commission thereunder.
(e) Except as the Company may have furnished supplemental
information to each prospective Underwriter or to the Managers prior to the
receipt of proposals to purchase the Offered Securities as to matters to be
reflected in the Prospectus, since the respective dates as of which information
is given in the Registration Statement and in the Prospectus, there has been no
(A) material adverse change in the condition, financial or otherwise, or in the
earnings of the Company, or (B) adverse development concerning the Company's
business or assets which would result in a material adverse change in its
prospective financial condition or results of operations, except such changes as
are set forth or contemplated in such Registration Statement (including the
financial statements and notes thereto included or incorporated by reference in
the Registration Statement) or the Prospectus.
(f) At or prior to the acceptance by the Company of a proposal
for the purchase of the Offered Securities, the Company will have taken all
corporate action necessary to be taken by it to authorize the acceptance of such
proposal and, at or before the Closing Date, will have taken all corporate
action necessary to be taken by it to authorize the performance by it of all
obligations on its part to be performed under the Underwriting Agreement; and
the consummation of the transactions contemplated in, and the fulfillment of the
terms of, the Underwriting Agreement will not result in a breach of any of the
terms and provisions of, or constitute a default under, any indenture, mortgage,
deed of trust or other agreement or instrument to which the Company is a party
at the Closing Date, or the Restated Articles of Incorporation of the Company,
as amended, or any order, rule or regulation applicable to the Company of any
court or of any state or Federal regulatory body or administrative agency having
jurisdiction over the Company or over its property.
(g) Arthur Andersen L.L.P. are independent accountants with
respect to the Company as required by the Securities Act and the applicable
rules and regulations thereunder.
2. Purchase, Sale and Delivery of Offered Securities.
The Company is advised by the Managers that the Underwriters
propose to make a public offering of their respective portions of the Offered
Securities as soon after the Underwriting Agreement is entered into as in the
Managers' judgment is advisable. The terms of the public offering of the Offered
Securities are or will be set forth in the Prospectus.
Payment for the Offered Securities shall be made in
immediately available funds by wire transfer to an account designated in writing
by the Company (unless the Underwriting Agreement shall otherwise specify) at
the time and place set forth in the Underwriting Agreement upon delivery to the
Managers for the respective accounts of the several Underwriters of the Offered
Securities registered in such names and in such denominations as the Managers
shall request in writing not less than two full business days prior to the date
of delivery. The Company agrees to have the Offered Securities available for
inspection, checking and packaging by the Managers at the location indicated in
the Underwriting Agreement not later than 1:00 P.M. on the business day next
prior to the Closing Date. The time and date of such payment and delivery with
respect to the Offered Securities are herein referred to as the "Closing Date".
3. Covenants of the Company.
The Company covenants and agrees with each of the Underwriters
that:
(a) As soon as practicable after the acceptance of a proposal
to purchase the Offered Securities, the Company will file the Supplement with
the Commission pursuant to Rule 424(b) of the Securities Act. The Company will
not file at any time prior to the Closing Date any other amendment to the
Registration Statement or any supplement to the Prospectus, or any other amended
prospectus or any document that upon the filing thereof would become an
Incorporated Document of which Sidley & Austin ("Underwriters' Counsel") shall
not previously have been advised and furnished with a copy or to which the
Managers shall reasonably object in writing.
(b) The Company will advise the Managers immediately, and
confirm such advice promptly in writing, of the effectiveness of any amendment
to the Registration Statement.
(c) The Company will notify promptly each of the Underwriters
in the event of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or in the event of the institution
or notice of intended institution by the Commission of any action or proceeding
for that purpose. In the event the Commission shall enter a stop order
suspending the effectiveness of the Registration Statement, whether before or
after the Offered Securities have been delivered to the Managers or the
Underwriters and paid for as provided in the Underwriting Agreement, the Company
will make every reasonable effort to obtain, as promptly as possible, the entry
by the Commission of an order setting aside any such stop order or otherwise
reinstating the effectiveness of the Registration Statement.
(d) The Company will deliver to the Managers, on or before the
Closing Date, one signed copy of the registration statement as originally filed
and of each amendment thereto (in each case including all exhibits thereto,
other than exhibits incorporated by reference), and will also deliver to the
Managers, for distribution to the Underwriters, a sufficient number of conformed
copies of each of the foregoing (but without exhibits) so that one copy of each
may be distributed to each of the Underwriters. The Company will also send to
the Managers or to the Underwriters, without expense to them, as soon as
practicable after the date hereof, and thereafter from time to time during a
period of nine months after such date, as many copies of any preliminary
prospectus and the Prospectus as the Managers may reasonably request for the
purposes contemplated by the Securities Act.
(e) The Company will use its best efforts, when and as
requested by the Managers, to furnish information and otherwise cooperate in
qualifying or registering the Offered Securities for offer and sale under the
securities or "blue sky" laws of such jurisdictions as the Managers may
designate, but the Company shall not thereby be obligated to qualify as a
foreign corporation in, or to execute or file any general consent to service of
process under the laws of, any jurisdiction. The Company will pay the
Underwriters' Counsel all reasonable fees (including counsel fees) and expenses
incurred by them in connection with such qualification or registration of the
Offered Securities for offer or sale, not exceeding, however, $6,000 in the
aggregate.
(f) If the Underwriting Agreement shall be terminated pursuant
to the provisions of Section 4 or 6(a), the Company will pay the reasonable fees
and disbursements of Underwriters' Counsel in connection with the contemplated
issue and sale of the Offered Securities, unless such termination is caused by
any default by the Managers or any of the Underwriters in the performance of
their respective obligations hereunder. Except as provided in this subsection
(f), the Underwriters shall pay the fees of Underwriters' Counsel and reimburse
such counsel for their reasonable expenses paid or incurred in connection with
the issue and sale of the Offered Securities. The Company shall not in any event
be liable to any of the Underwriters for damages on account of loss of
anticipated profits.
(g) The Company will, so long as any of the Offered Securities
shall be outstanding, deliver to the Managers upon their request, and to each
other Underwriter who may so request, copies of all public reports and all
reports and financial statements furnished by the Company to the Commission
pursuant to the Exchange Act or any rule or regulation of the Commission
thereunder.
(h) During a period of nine months after the date of the
Prospectus, if any event relating to or affecting the Company or its
subsidiaries, if any, or of which the Company shall be advised in writing by the
Managers, shall occur as a result of which it is necessary, in the opinion of
counsel for the Company, to supplement or amend the Prospectus in order to make
the Prospectus not misleading in the light of the circumstances existing at the
time it is delivered to a purchaser of Offered Securities from any of the
Underwriters, the Company will forthwith at its expense prepare and furnish to
the Managers or to the Underwriters a reasonable number of copies of a
supplement or supplements or an amendment or amendments to the Prospectus (in
form satisfactory to Underwriters' Counsel) which will supplement or amend the
Prospectus so that, as so supplemented or amended, it will not include any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in
the light of the circumstances existing at the time the Prospectus is delivered
to such a purchaser, not misleading. In case any of the Underwriters is required
to deliver a prospectus descriptive of the Offered Securities after the
expiration of nine months after the date of the Prospectus, the Company, upon
the request of the Managers, will furnish to the Managers, at the expense of
such Underwriter, a reasonable quantity of amendments or supplements to the
Prospectus complying with Section 10 of the Securities Act. For the purpose of
this subsection (h), the Company will furnish such information with respect to
itself and its subsidiaries, if any, as the Managers may from time to time
reasonably request, and during said nine-month period, the Company will prepare
and continue to file with the Commission all documents required to be filed
under the Exchange Act.
(i) The Company will make generally available to its security
holders, as soon as practicable, an earnings statement (which need not be
audited) covering a period of at least twelve months beginning not earlier than
the date of the Prospectus, which earnings statement shall satisfy the
requirements of Section 11(a) of the Securities Act.
4. Conditions of Underwriters' Obligations.
The obligations of the Underwriters to purchase and pay for
the Offered Securities shall be subject to the performance by the Company of its
obligations to be performed under the Underwriting Agreement at or prior to the
Closing Date, to the continued accuracy in all material respects of the
representations and warranties of the Company contained in the Underwriting
Agreement, and to the following conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing and in accordance with Section 1(a) of this Agreement; no stop order
suspending the effectiveness of the Registration Statement shall have been
issued under the Securities Act, or proceedings therefor instituted or
threatened by the Commission, on or prior to the Closing Date.
(b) At or prior to the Closing Date, the Underwriters shall
have received from Underwriters' Counsel an opinion (subject to the reservation
that they have relied upon the opinions of several counsel for the Company
referred to in subsection (d) of this Section 4 as to matters governed by the
laws of Louisiana, Arkansas, Oklahoma & Texas, respectively), to the effect set
forth in Annex I.
(c) At or prior to the Closing Date, the Underwriters shall
have received from Milbank, Tweed, Hadley & McCloy LLP, counsel for the Company,
an opinion in form and substance satisfactory to Underwriters' Counsel, to the
effect set forth in Annex II.
(d) At or prior to the Closing Date, the Underwriters shall
have received the following opinions in the form and substance satisfactory to
Underwriters' Counsel:
(i) The opinion from Wilkinson, Carmody &
Gilliam, special Louisiana counsel for the
Company, to the effect set forth in Annex
III;
(ii) The opinion from Matthews, Campbell, Rhoads,
McClure & Thompson, special Arkansas counsel
for the Company, to the effect set forth in
Annex IV;
(iii) The opinion from Rainey, Ross, Rice &
Binns, special Oklahoma counsel for the
Company, to the effect set forth in Annex V;
and
(iv) The opinion from Coghlan, Crowson,
Fitzpatrick & Westbrook, special Texas
counsel for the Company, to the effect set
forth in Annex VI.
(e) At or prior to the Closing Date, the Underwriters shall
have received from Arthur Andersen L.L.P. a letter dated the Closing Date to the
effect set forth in Annex VII.
The form of letter shall reflect the inclusion of any
subsequently dated financial information, the incorporation by reference of any
subsequently filed Annual Report on Form 10-K or Quarterly Report on Form 10-Q
and/or the inclusion in the Prospectus of any financial information.
Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, there shall not have
been any change or decrease specified in the letter required by this subsection
(e) which is, in the judgment of the Managers, so material and adverse as to
make it impractical or inadvisable to proceed with the offering or the delivery
of the Offered Securities as contemplated by the Registration Statement and the
Prospectus.
(f) At the Closing Date the Managers shall have received a
certificate, dated as of the Closing Date, signed by the President or a Vice
President and the Treasurer or the Secretary of the Company, to the effect that
(A) to the best of the knowledge of the signers, no stop order suspending the
effectiveness of the Registration Statement has been issued under the Securities
Act and no proceedings therefor have been instituted or threatened by the
Commission, (B) the order of the Commission referred to in subsection (b) of
Section 1 of the Underwriting Agreement is, to the best of the knowledge of the
signers, in full force and effect, and (C) since the respective dates as of
which information is given in the Registration Statement or Prospectus, there
has been no (x) material adverse change in the condition, financial or
otherwise, or in the earnings of the Company or (y) adverse development
concerning the Company's business or assets which would result in a material
adverse change in its prospective financial condition or results of operations,
except such changes as are set forth or contemplated in the Registration
Statement or the Prospectus (including financial statements and notes thereto
contained in the Incorporated Documents).
(g) All proceedings to be taken in connection with the
issuance and sale of the Offered Securities by the Company as contemplated in
the Underwriting Agreement shall be satisfactory in form and substance to
Underwriters' Counsel.
In case any of the conditions specified in this Section 4
shall not have been fulfilled, the Underwriting Agreement may be terminated by
the Managers with the consent of Underwriters who have agreed to purchase in the
aggregate more than fifty percent of the total principal amount of the Offered
Securities upon delivering written notice thereof to the Company. Any such
termination shall be without liability of any party to any other party except as
otherwise provided in subsection (f) of Section 3 of the Underwriting Agreement.
5. Indemnification.
(a) The Company agrees to indemnify and hold harmless each of
the Underwriters and each person, if any, who controls any of the Underwriters
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages or
liabilities, joint or several, to which such Underwriter or such controlling
person may become subject under the Securities Act, the Exchange Act or the
common law or otherwise, and to reimburse each such Underwriter or such
controlling person for any reasonable legal or other expenses (including, to the
extent hereinafter provided, reasonable counsel fees) incurred by it or them in
connection with defending against any such losses, claims, damages or
liabilities, arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in (1) the Registration Statement, the
Basic Prospectus, any preliminary prospectus, or the Prospectus or any amendment
to the Registration Statement or amendment or supplement to the Prospectus, or
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
(2) the Prospectus or the Prospectus as amended or supplemented, if such losses,
claims, damages or liabilities arise out of or are based upon the use of the
Prospectus or the Prospectus as amended or supplemented after the Company shall
have amended or supplemented the Prospectus, or any omission or alleged omission
to state therein a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the indemnity agreement contained in this
subsection (a) shall not apply to any such losses, claims, damages or
liabilities arising out of or based upon (i) any such untrue statement or
alleged untrue statement, or any such omission or alleged omission, if such
statement or omission was made in reliance upon and in conformity with
information furnished in writing to the Company by any of the Underwriters for
use in the Registration Statement or the Prospectus or any amendment or
supplement to either thereof, (ii) any statement made in the Form T-1 filed by
the Trustee as an exhibit to the Registration Statement or (iii) the failure of
any Underwriter to deliver (either directly or through the Managers) a copy of
the Prospectus (excluding the Incorporated Documents), or of the Prospectus as
amended or supplemented after it shall have been amended or supplemented by the
Company (excluding the Incorporated Documents), to any person to whom a copy of
any preliminary prospectus shall have been delivered by or on behalf of such
Underwriter to whom any Offered Securities shall have been sold by such
Underwriter, as such delivery may be required by the Securities Act and the
rules and regulations of the Commission thereunder.
(b) Each of the Underwriters agrees to indemnify and hold
harmless the Company, each of its officers who signs the Registration Statement,
each of its directors, each person who controls the Company within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act, each
other Underwriter and each person, if any, who so controls any such other
Underwriter, from and against any and all losses, claims, damages or
liabilities, joint or several, to which any one or more of them may become
subject under the Securities Act, the Exchange Act or the common law or
otherwise, and to reimburse each of them for any reasonable legal or other
expenses (including, to the extent hereinafter provided, reasonable counsel
fees) incurred by them in connection with defending against any such losses,
claims, damages or liabilities of the character above specified arising out of
or based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or the Prospectus or any amendment
to the Registration Statement or amendment or supplement to the Prospectus or
upon any omission or alleged omission to state in any thereof a material fact
required to be stated therein or necessary to make the statements therein not
misleading if such statement or omission was made in reliance upon and in
conformity with information furnished in writing to the Company by such
Underwriter for use in the Registration Statement or the Prospectus or any
amendment or supplement to either thereof, or (ii) the failure of such
Underwriter to deliver (either directly or through the Managers) a copy of the
Prospectus (excluding the Incorporated Documents), or of the Prospectus as
amended or supplemented after it shall have been amended or supplemented by the
Company (excluding the Incorporated Documents), to any person to whom a copy of
any preliminary prospectus shall have been delivered by or on behalf of such
Underwriter and to whom any Offered Securities shall have been sold by such
Underwriter, as such delivery may be required by the Securities Act and the
rules and regulations of the Commission thereunder.
(c) Promptly after receipt by a party indemnified under this
Section 5 (an "indemnified party") of notice of the commencement of any action,
such indemnified party will, if a claim in respect thereof is to be made against
a party granting an indemnity under this Section 5 (the "indemnifying party"),
notify the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section 5. In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof (thereby conceding that the action in question is subject to
indemnification by the indemnifying party hereunder), with counsel satisfactory
to such indemnified party; provided, however, that if the defendants in any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert and
conduct such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of its election so to
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party
under this Section 5 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel, approved by the
Managers in the case of subsection (a), representing the indemnified parties
under subsection (a) who are parties to such action), (ii) the indemnifying
party shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is applicable, such
liability shall be only in respect of the counsel referred to in such clause (i)
or (iii).
(d) If the indemnification provided for in this Section 5
shall be unenforceable under applicable law by an indemnified party, the Company
agrees to contribute to such indemnified party with respect to any and all
losses, claims, damages and liabilities for which such indemnification provided
for in this Section 5 shall be unenforceable, in such proportion as shall be
appropriate to reflect the relative fault of the Company on the one hand and the
indemnified party on the other in connection with the statements or omissions
which have resulted in such losses, claims, damages and liabilities, as well as
any other relevant equitable considerations; provided, however, that no
indemnified party guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from the
Company if the Company is not guilty of such fraudulent misrepresentation.
Relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or the indemnified party and each such party's relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and each of the Underwriters agree
that it would not be just and equitable if contributions pursuant to this
subparagraph were to be determined solely by pro rata allocation or by any other
method of allocation which does not take account of the equitable considerations
referred to above.
(e) The indemnity and contribution agreements contained in
this Section 5 and the representations and warranties of the Company in the
Underwriting Agreement shall remain operative and in full force regardless of
(i) any termination of the Underwriting Agreement, (ii) any investigation made
by or on behalf of any Underwriter or any person controlling any Underwriter or
by or on behalf of the Company, its directors or officers or any person
controlling the Company and (iii) delivery of and payment for any of the Offered
Securities.
6. Termination.
(a) If the Offered Securities are being purchased for the
purpose of resale, the Underwriting Agreement may be terminated, at any time
prior to the Closing Date, by the Managers with the consent of Underwriters who
have agreed to purchase in the aggregate more than fifty percent of the total
principal amount of the Offered Securities, if (a) there shall have occurred any
general suspension or material limitation on trading in securities on the New
York Stock Exchange or by the Commission or by any federal or state agency or by
the decision of any court, any limitation on prices for such trading or any
restrictions on the distribution of securities, (b) trading in any securities of
the Company shall have been suspended by the Commission or a national securities
exchange, (c) a general banking moratorium on commercial banking activities in
New York shall have been declared either by federal or New York State
authorities, (d) the rating assigned by any nationally recognized securities
rating agency to any securities of the Company as of the date of the
Underwriting Agreement shall have been lowered since that date, or (e) there
shall have occurred any outbreak or material escalation of hostilities or other
calamity or crisis, the effect of which on the financial markets of the United
States is such as to make it, in the judgment of the Managers, impracticable to
market the Offered Securities.
(b) Any termination of the Underwriting Agreement pursuant to
this Section 6 shall be without liability of any party to any other party except
as otherwise provided in subsection (f) of Section 3.
7. Default by an Underwriter.
If any one or more Underwriters shall fail to purchase and pay
for any of the Offered Securities agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall constitute a default
in the performance of its or their obligations under the Underwriting Agreement,
the remaining Underwriters shall be obligated severally to take up and pay for
(in the respective proportions which the amount of Offered Securities set forth
opposite their names in Schedule I to the Underwriting Agreement bears to the
aggregate amount of Offered Securities set opposite the names of all the
remaining Underwriters) the Offered Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase; provided, however, that in the
event that the aggregate amount of Offered Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase (less such aggregate
amount of Offered Securities as are purchased by substituted underwriters
selected by the Managers with the approval of the Company or selected by the
Company with the approval of the Managers) shall exceed 10% of the aggregate
amount of Offered Securities set forth in such Schedule I, the remaining
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Offered Securities, and if such nondefaulting
Underwriters do not purchase all the Offered Securities, the Underwriting
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company (except as otherwise provided in subsection (f) of Section 3). In
the event of a default by an Underwriter as set forth in this Section 7, the
Closing Date shall be postponed for such period, not exceeding seven calendar
days, as the Company and the Managers shall determine in order that the required
changes in the Registration Statement and the Prospectus or in any other
documents or arrangements may be effected. Nothing contained in the Underwriting
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default thereunder.
8. Notice.
All communications under the Underwriting Agreement will be
effective only on receipt, and, if sent to the Managers, will be mailed,
delivered or faxed and confirmed to them, at the address, or telephoned to them
at the number, specified in the Underwriting Agreement and to Sidley & Austin,
Bank One First National Plaza, 10 S. Dearborn Street, Chicago, Illinois 60603,
attention: Kevin F. Blatchford; or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it in care of Central and South West
Corporation, 1616 Woodall Rodgers Freeway, P.O. Box 660164, Dallas, Texas 75202,
attention of Stephen D. Wise, in each case with written confirmation of such
communication sent to Milbank, Tweed, Hadley & McCloy LLP, 1 Chase Manhattan
Plaza, New York, New York 10005, attention: Robert B. Williams, Esq.
9. Successors.
The Underwriting Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 5 of the
Underwriting Agreement, and no other person will have any right or obligation
hereunder and no other person (including a purchaser, as a purchaser, from any
Underwriter of any of the Offered Securities) shall acquire or have any rights
under or by virtue of the Underwriting Agreement.
10. Governing Law.
The Underwriting Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
Exhibit 4
SOUTHWESTERN ELECTRIC POWER COMPANY
and
THE BANK OF NEW YORK,
AS TRUSTEE
INDENTURE
Dated as of ____________, 2000
Senior Notes
<PAGE>
Reconciliation and tie between the Trust Indenture Act of 1939 and
Indenture, dated as of ____________, 2000
Trust Indenture
Act Section Indenture Section
ss.310(a)(1)...................................................609
(a)(2).....................................................609
(a)(3).................................................Not Applicable
(a)(4).................................................Not Applicable
(a)(5).....................................................609
(b)....................................................608, 610
(c) ...................................................Not Applicable
ss.311(a)......................................................613(a)
(b)........................................................613(b)
(b)(2).................................................703(a)(3), 703(b)
(c)....................................................Not Applicable
ss.312(a)..................................................701, 702(a)
(b)........................................................702(b)
(c)........................................................702(c)
ss.313(a)......................................................703(a)
(b)........................................................703(b)
(c)....................................................703(a), 703(b)
(d)........................................................703(c)
ss.314(a)......................................................704
(a)(4).....................................................1008
(b)....................................................Not Applicable
(c)(1).....................................................102
(c)(2).....................................................102
(c)(3).................................................Not Applicable
(d)....................................................Not Applicable
(e)........................................................102
(f)....................................................Not Applicable
ss.315(a)......................................................601(a)
(b)....................................................602, 703(a)(8)
(c)........................................................601(b)
(d)........................................................601(c)
(d)(1).....................................................601(a)(1)
(d)(2).....................................................601(c)(2)
(d)(3).....................................................601(c)(3)
(e) .......................................................514
ss.316(a)(1)(A)................................................512
(a)(1)(B)..................................................502, 513
(a)(2)................................................Not Applicable
(b)........................................................508
(c)........................................................104(e)
ss.317(a)(1)...................................................503
(a)(2).....................................................504
(b)........................................................1003
ss.318(a)......................................................107
Note:....This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
RECITALS OF THE COMPANY...................................................1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION......1
SECTION 101. Definitions..................................................1
Act 1
Affiliate........................................................1
Authenticating Agent.............................................2
Board of Directors...............................................2
Board Resolution.................................................2
Business Day.....................................................2
Commission.......................................................2
Company..........................................................2
Company Order" or "Company Request...............................2
Corporate Trust Office...........................................2
corporation......................................................2
default..........................................................2
Defaulted Interest...............................................2
Depositary.......................................................2
Discharged.......................................................3
Event of Default.................................................3
Exchange Act.....................................................3
Global Security..................................................3
Holder...........................................................3
Indebtedness.....................................................3
Indenture........................................................3
interest.........................................................4
Interest Payment Date............................................4
Lien.............................................................4
Maturity.........................................................4
Net Tangible Assets..............................................4
Officers' Certificate............................................4
Opinion of Counsel...............................................4
Original Issue Discount Security.................................4
Outstanding......................................................4
Paying Agent.....................................................5
Periodic Offering................................................5
Person...........................................................5
Place of Payment.................................................5
Predecessor Security.............................................5
Redemption Date..................................................5
Redemption Price.................................................6
Regular Record Date..............................................6
Repayment Price..................................................6
Responsible Officer..............................................6
Security.........................................................6
Security Register" and "Security Registrar.......................6
Special Record Date..............................................6
Stated Maturity..................................................6
Subsidiary.......................................................6
Trustee..........................................................6
Trust Indenture Act..............................................6
U.S. Government Obligations......................................6
Vice President...................................................7
SECTION 102. Compliance Certificates and Opinions.........................7
SECTION 103. Form of Documents Delivered to Trustee.......................7
SECTION 104. Acts of Holders..............................................8
SECTION 105. Notices, Etc., to Trustee and Company........................9
SECTION 106. Notice to Holders; Waiver....................................10
SECTION 107. Conflict with Trust Indenture Act............................10
SECTION 108. Effect of Headings, Table of Contents, Etc...................10
SECTION 109. Successors and Assigns.......................................10
SECTION 110. Separability Clause..........................................10
SECTION 111. Benefits of Indenture........................................10
SECTION 112. Governing Law................................................11
SECTION 113. Legal Holidays...............................................11
SECTION 114. No Recourse Against Others...................................11
ARTICLE TWO SECURITY FORMS...............................................11
SECTION 201. Forms Generally..............................................11
SECTION 202. Form of Face of Security.....................................12
SECTION 203. Form of Reverse of Security..................................13
SECTION 204. Form of Trustee's Certificate of Authentication..............16
ARTICLE THREE THE SECURITIES.............................................16
SECTION 301. Amount Unlimited; Issuable in Series.........................16
SECTION 302. Denominations................................................19
SECTION 303. Execution, Authentication, Delivery and Dating...............19
SECTION 304. Temporary Securities.........................................21
SECTION 305. Registration, Registration of Transfer and Exchange..........22
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.............23
SECTION 307. Payment of Interest; Interest Rights Preserved...............23
SECTION 308. Persons Deemed Owners........................................24
SECTION 309. Cancellation.................................................24
SECTION 310. Computation of Interest......................................25
SECTION 311. Global Securities............................................25
SECTION 312. Periodic Offering of Securities..............................26
SECTION 313. CUSIP Numbers................................................26
ARTICLE FOUR SATISFACTION AND DISCHARGE..................................26
SECTION 401. Satisfaction and Discharge of Indenture......................26
SECTION 402. Application of Trust Money...................................27
SECTION 403. Satisfaction, Discharge and Defeasance of Securities
of any Series.............................................................28
ARTICLE FIVE REMEDIES....................................................29
SECTION 501. Events of Default............................................29
SECTION 502. Acceleration of Maturity; Rescission and Annulment...........30
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee...................................................................31
SECTION 504. Trustee May File Proofs of Claim.............................32
SECTION 505. Trustee May Enforce Claims Without Possession of Securities..32
SECTION 506. Application of Money Collected...............................32
SECTION 507. Limitation on Suits..........................................33
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest......................................................33
SECTION 509. Restoration of Rights and Remedies...........................34
SECTION 510. Rights and Remedies Cumulative...............................34
SECTION 511. Delay or Omission Not Waiver.................................34
SECTION 512. Control by Holders...........................................34
SECTION 513. Waiver of Past Defaults......................................34
SECTION 514. Undertaking for Costs........................................35
ARTICLE SIX THE TRUSTEE..................................................35
SECTION 601. Certain Duties and Responsibilities..........................35
SECTION 602. Notice of Defaults...........................................36
SECTION 603. Certain Rights of Trustee....................................36
SECTION 604. Not Responsible for Recitals or Issuance of Securities.......37
SECTION 605. May Hold Securities..........................................37
SECTION 606. Money Held in Trust..........................................38
SECTION 607. Compensation and Reimbursement...............................38
SECTION 608. Conflicting Interests........................................38
SECTION 609. Corporate Trustee Required; Eligibility......................38
SECTION 610. Resignation and Removal; Appointment of Successor Trustee....39
SECTION 611. Acceptance of Appointment by Successor.......................40
SECTION 612. Merger, Conversion, Consolidation or Succession to Business..41
SECTION 613. Preferential Collection of Claims Against Company............41
SECTION 614. Authenticating Agents........................................44
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY..........45
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders....45
SECTION 702. Preservation of Information; Communications to Holders.......45
SECTION 703. Reports by Trustee...........................................46
SECTION 704. Reports by Company...........................................47
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, SALE OR TRANSFER........48
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.........48
SECTION 802. Successor [Corporation]Personto be Substituted...............48
ARTICLE NINE SUPPLEMENTAL INDENTURES.....................................48
SECTION 901. Supplemental Indentures without Consent of Holders...........48
SECTION 902. Supplemental Indentures with Consent of Holders..............49
SECTION 903. Execution of Supplemental Indentures.........................50
SECTION 904. Effect of Supplemental Indentures............................50
SECTION 905. Conformity with Trust Indenture Act..........................50
SECTION 906. Reference in Securities to Supplemental Indentures...........51
ARTICLE TEN COVENANTS....................................................51
SECTION 1001. Payment of Principal, Premium and Interest..................51
SECTION 1002. Maintenance of Office or Agency.............................51
SECTION 1003. Money for Securities Payments to Be Held in Trust...........51
SECTION 1004. Corporate Existence.........................................52
SECTION 1005. Maintenance of Properties...................................53
SECTION 1006. Maintenance of Insurance....................................53
SECTION 1007. Limitation on Liens.........................................53
SECTION 1008. Statement by Officers as to Default.........................55
SECTION 1009. Defeasance of Certain Obligations...........................55
SECTION 1010. Waiver of Certain Covenants.................................56
SECTION 1011. Further Assurances..........................................57
ARTICLE ELEVEN REDEMPTION OF SECURITIES..................................57
SECTION 1101. Applicability of Article....................................57
SECTION 1102. Election to Redeem; Notice to Trustee.......................57
SECTION 1103. Selection by Trustee of Securities to Be Redeemed...........57
SECTION 1104. Notice of Redemption........................................58
SECTION 1105. Deposit of Redemption Price.................................58
SECTION 1106. Securities Payable on Redemption Date.......................58
SECTION 1107. Securities Redeemed in Part.................................59
ARTICLE TWELVE SINKING FUNDS.............................................59
SECTION 1201. Applicability of Article....................................59
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.......59
SECTION 1203. Redemption of Securities for Sinking Fund...................59
ARTICLE THIRTEEN MISCELLANEOUS...........................................60
SECTION 1301. Counterparts................................................60
TESTIMONIUM...............................................................60
SIGNATURE AND SEALS.......................................................60
<PAGE>
INDENTURE, dated as of __________, 2000, between SOUTHWESTERN
ELECTRIC POWER COMPANY, a corporation duly organized and existing under the laws
of the State of Delaware (the "Company"), having its principal office at 428
Travis Street, Shreveport, Louisiana 71156-0001 and THE BANK OF NEW YORK, a New
York banking corporation, as Trustee (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 certain of its
debentures, notes or other evidences of indebtedness (the "Securities"), to be
issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders (as defined herein) thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders of
the Securities or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(i) the terms defined in this Section have the meanings
ascribed to them in this Section and include the plural as well as the
singular;
(ii) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings ascribed to them therein;
(iii) all accounting terms not otherwise defined herein have
the meanings ascribed to them in accordance with generally accepted
accounting principles, 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 at the date of
such computation;
(iv) 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; and
(v) certain terms used in Section 613 have the meanings
ascribed to them in such Section.
The following terms have the following meanings:
"Act", when used with respect to any Holder, has the meaning
specified in Section 104 hereof.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized to
authenticate and deliver Securities on behalf of the Trustee pursuant to Section
614 hereof.
"Board of Directors" means either the board of directors of
the Company or on any committee thereof duly authorized to act in respect of
maters relating to this Indenture. When used with reference to any other Person,
Board of Directors means the body or Person authorized by law or the organic
instruments under which such Person is organized to exercise similar discretion
on behalf of any other obligor on the Securities.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of
Payment, means each day which is not a Saturday, a Sunday or a day on which
banking institutions in that Place of Payment are authorized or obligated by law
to remain closed.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor [corporation] Person.
"Company Order" or "Company Request" means, respectively, a
written order or request signed in the name of the Company by its Chief
Executive Officer, its President, a Vice President, its General Manager, its
Treasurer or the Person exercising similar authority on behalf of any other
obligor with respect to the Securities, and by an Assistant Treasurer, its
Controller, or Director, Finance of Central and South West Corporation, and
delivered to the Trustee.
"Corporate Trust Office" means the principal office of the
Trustee in New York, New York, at which at any particular time its corporate
trust business is administered, which at the date hereof is 101 Barclay Street,
New York, NY 10286, Attention: Corporate Trust Administration.
"corporation" means a corporation, association, company,
joint-stock company, limited liability company or business trust.
"default" for purposes of Section 601 of this Indenture means
an "Event of Default" as specified in Section 501 hereof, and for purposes of
Section 310(b) of the Trust Indenture Act, "default" means an "Event of Default"
as specified in Section 501 hereof but exclusive of any period of grace or
requirement of notice.
"Defaulted Interest" has the meaning specified in Section
307 hereof.
"Depositary" means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depositary by the Company pursuant to
Section 301 hereof, which must be a clearing agency registered under the
Exchange Act, and, if so provided pursuant to Section 301 hereof with respect to
the Securities of a series, any successor to such Person. If at any time there
is more than one such Person, "Depositary" shall mean, with respect to any
series of Securities, the qualifying entity which has been appointed with
respect to the Securities of that series.
"Discharged" means, with respect to the Securities of any
series, the discharge of the entire Indebtedness represented by, and obligations
of the Company under, the Securities of such series and in the satisfaction of
all the obligations of the Company under this Indenture relating to the
Securities of such series, except (A) the rights of Holders of the Securities of
such series to receive, from the trust fund described in Section 403 hereof,
payment of the principal of and interest and premium, if any, on the Securities
of such series when such payments are due, (B) the Company's obligations with
respect to the Securities of such series with respect to registration, transfer,
exchange and maintenance of a Place of Payment and (C) the rights, powers,
trusts, duties, protections and immunities of the Trustee under this Indenture.
"Event of Default" has the meaning specified in Section
501 hereof.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended.
"Global Security" means a Security evidencing all or part of a
series of Securities, issued to the Depositary for such series or its nominee
and registered in the name of such Depositary or nominee.
"Holder" means a Person in whose name a Security is
registered in the Security Register.
"Indebtedness" means, with respect to any Person (without
duplication), (a) any liability of such Person (1) for borrowed money or under
any reimbursement obligation relating to a letter of credit, financial bond or
similar instrument or agreement, (2) evidenced by a bond, note, debenture or
similar instrument or agreement (including a purchase money obligation) given in
connection with the acquisition of any business, properties or assets of any
kind (other than a trade payable or a current liability arising in the ordinary
course of business or a performance bond or similar obligation), (3) for the
payment of money relating to any obligations under any capital lease of real or
personal property or (4) for purposes of Section 1007, under any agreement or
instrument in respect of an interest rate or currency swap, exchange or hedging
transaction or other financial derivatives transaction; (b) any liability of
others described in the preceding clause (a) that the Person has guaranteed or
that is otherwise its legal liability to the extent of 20% of the amount of
Indebtedness so guaranteed or that is otherwise its legal liability until such
time as the guarantor shall be obligated to make any payment in respect of such
guaranty or legal liability; and (c) any amendment, supplement, modification,
deferral, renewal, extension or refunding of any liability of the types referred
to in clauses (a) and (b) above. For the purpose of determining any particular
amount of Indebtedness under this definition, guarantees of (or obligations with
respect to letters of credit or financial bonds supporting) Indebtedness
otherwise included in the determination of such amount shall not be included
[and guarantees of indebtedness not otherwise included in the determination of
such amount shall be included to the extent of 20% of the amount of Indebtedness
so guaranteed until such time as the guarantor shall be obligated to make any
payment in respect of such guaranty].
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and includes the terms of particular series of Securities established as
contemplated by Section 301 hereof; provided, however, that if at any time more
than one Person is acting as Trustee under this instrument due to the
appointment of one or more separate Trustees for any one or more separate series
of Securities pursuant to Section 610, "Indenture" shall mean, with respect to
such series of Securities for which any such Person is Trustee, this instrument
as originally executed or as it may from time to time be supplemented or amended
by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of particular series of
Securities for which such Person is Trustee established as contemplated by
Section 301, exclusive, however, of any provisions or terms which relate solely
to other series of Securities for which such Person is not Trustee, regardless
of when such terms or provisions were adopted, and exclusive of any provisions
or terms adopted by means of one or more indentures supplemental hereto executed
and delivered after such Person had become such Trustee but to which such
Person, as such Trustee, was not a party.
"Indexed Security" means any Security as to which the amount
of payments of principal, premium, if any, and/or interest, if any, due thereon
is determined with reference to the rate of exchange between the currency or
currency unit in which the Security is denominated and any other specified
currency or currency unit, to the relationship between two or more currencies or
currency units, to the price of one or more specified securities or commodities,
to one or more securities or commodities exchange indices or other indices or by
other similar methods or formulas, all as specified in accordance with Section
301.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Lien" means, with respect to any property or assets, any
mortgage or deed of trust, pledge, hypothecation, assignment, security interest,
lien, encumbrance, or other security arrangement of any kind or nature
whatsoever on or with respect to such property or assets (including any
conditional sale or other title retention agreement having substantially the
same economic effect as any of the foregoing).
"Maturity", when used with respect to any Security, means the
date on which the principal or an installment of principal of such Security
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Net Tangible Assets" means the total of all assets (including
revaluations thereof as a result of commercial appraisals, price level
restatement or otherwise) appearing on a balance sheet of the Company and its
Subsidiaries, net of applicable reserves and deductions, but excluding goodwill,
trade names, trademarks, patents, unamortized debt discount and all other like
intangible assets (which term shall not be construed to include such
revaluations), less the aggregate of the current liabilities of the Company and
its Subsidiaries appearing on such balance sheet.
"Officers' Certificate" means a certificate signed by the
Company's Chief Executive Officer, its President, a Vice President, its General
Manager, its Treasurer or the Person exercising similar authority on behalf of
any other obligor with respect to the Securities and by an Assistant Treasurer,
its Controller, or Director, Finance of Central and South West Corporation, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be an employee of or regular counsel for the Company, or may be other
counsel reasonably acceptable to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502 hereof.
"Outstanding", when used with respect to Securities of any
series, means, as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption money or U.S. Governmental Obligations (to the extent
provided in Article Four) in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the Company)
in trust or set aside and segregated in trust by the Company (if the
Company acts as its own Paying Agent) for the Holders of such
Securities; provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been
made; and
(iii) Securities which have been paid pursuant to Section
306 hereof or in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this Indenture, other than
any such Securities in respect of which there shall have been presented
to the Trustee proof satisfactory to it that such Securities are held
by a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether or not the Holders of the
requisite principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, (a) the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding for such purposes shall be 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 502
hereof, (b) if, as of such date, the principal amount payable at the Stated
Maturity of a Security is not determinable, the principal amount of such
Security which shall be deemed to be Outstanding shall be the amount as
specified or determined as contemplated by Section 301, (c) the principal amount
of a Security denominated in one or more foreign currencies or currency units
which shall be deemed to be Outstanding shall be the U.S. dollar equivalent,
determined as of such date in the manner provided as contemplated by Section
301, of the principal amount of such Security (or, in the case of a Security
described in clause (a) or (b) above, of the amount determined as provided in
such clause), and (d) Securities owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that in determining whether
the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned as
described in (d) above which have been pledged in good faith may be regarded as
Outstanding if the pledgee certifies to the Trustee the pledgee's right so to
act with respect to such Securities and that the pledgee is not the Company or
any other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any Securities on
behalf of the Company.
"Periodic Offering" means an offering of Securities of a
series from time to time the specific terms of which Securities, including
without limitation the rate or rates of interest (or formula for determining 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 upon the issuance of such Securities.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities
of any series, means the place or places where the principal of (and premium, if
any) and interest, if any, on the Securities of that series are payable as
specified in or as contemplated by Section 301 hereof.
"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 hereof in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture, exclusive of accrued and unpaid interest.
"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 hereof.
"Repayment Price", when used with respect to any Security to
be repaid at the option of the Holder, means the price specified in such
Security or pursuant to this Indenture at which it is to be repaid pursuant to
such Security.
"Responsible Officer", when used with respect to the Trustee,
means any Vice President or any officer of the Trustee, which in each case is
assigned to its Corporate Trust Department, and also means, with respect to a
particular corporate trust matter, any other trust officer to whom such matter
is referred because of his knowledge of and familiarity with the particular
subject.
"Security" has the meaning stated in the first recital of this
Indenture and more particularly means any Security authenticated and delivered
under this Indenture; provided, however, that if at any time there is more than
one Person acting as Trustee under this Indenture, "Security" with respect to
the Indenture as to which such Person is Trustee shall have the meaning stated
in the first recital of this Indenture and shall more particularly mean any
Security authenticated and delivered under this Indenture, exclusive, however,
of Securities of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305 hereof.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307 hereof.
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal or
installment of principal of such Security or interest is due and payable.
"Subsidiary" means a Person more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
(or other ownership interests) of the class or classes having general voting
power under ordinary circumstances to elect at least a majority of the board of
directors of a corporation (irrespective of whether or not at the time stock of
any other class or classes shall have or might have voting power by reason of
the happening of any contingency).
"Tranche" means a group of Securities which (a) are of the
same series and (b) have identical terms except as to principal amount, date of
issuance and/or interest rate.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed, except as
provided in Section 905 hereof.
"U.S. Government Obligations" means (i) direct obligations of
the United States for the payment of which its full faith and credit is pledged,
or obligations of a person controlled or supervised by and acting as an agency
or instrumentality of the United States and the payment of which is
unconditionally guaranteed by the United States, and (ii) bonds, debentures,
notes or other evidences of indebtedness issued by any of the following federal
agencies: Federal Bank for Cooperatives, Federal National Mortgage Association;
Export-Import Banks of the United States; Federal Land Banks; Federal
Intermediate Credit Banks; Federal Home Loan Banks, the Government National
Mortgage Association and the Federal Home Loan Mortgage Association; and shall
also include in each case a depository receipt issued by a bank or trust company
as custodian with respect to any such U.S. Government Obligation or a specific
payment of interest on or principal of any such U.S. Government Obligation held
by such custodian for the account of a holder of a depository receipt; provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of interest on or principal of the U.S.
Government Obligation evidenced by such depository receipt.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president or assistant vice president, whether or not
designated by a number or a word or words added before or after the title "vice
president' or "assistant vice president".
SECTION 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Indenture, upon
any application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the Trustee
(a) an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and (b) an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(ii) 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;
(iii) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601 hereof) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section 104.
Without limiting the generality of the foregoing, unless
otherwise established in or pursuant to a Board Resolution or set forth or
determined in an Officers' Certificate, or established in one or more indentures
supplemental hereto, pursuant to Section 301 hereof, a Holder, including a
Depositary that is a Holder of a Global Security, may make, give or take, by a
proxy, or proxies, duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by Holders, and a Depositary that is a
Holder of a Global Security may provide its proxy or proxies to the beneficial
owners of interests in any such Global Security through such Depositary's
standing instructions and customary practices.
(b) The fact and date of the execution by any Person of any
such instrument, writing or proxy 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, writing or proxy acknowledged to him the
execution thereof. Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date of the execution
of any such instrument, writing or proxy, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The ownership of Securities shall be proved by the
Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(e) The Company may set any day as the record date for the
purpose of determining the Holders of Outstanding Securities of any series
entitled to make any request or demand, or give any authorization, direction,
notice, consent or waiver, or take any other action, provided or permitted by
this Indenture to be made, given or taken by Holders of Securities of such
series.
With regard to any record date set pursuant to this paragraph,
the Holders of Outstanding Securities of the relevant series on such record date
(or their duly appointed agents), and only such Persons, shall be entitled to
take relevant action, whether or not such Holders remain Holders after such
record date. With regard to any action that may be taken hereunder only by
Holders of a requisite principal amount of Outstanding Securities of any series
(or their duly appointed agents) and for which a record date is set pursuant to
this paragraph, the Company may, at its option, set an expiration date after
which no such action purported to be taken by any Holder shall be effective
hereunder unless taken on or prior to such expiration date by Holders of the
requisite principal amount of Outstanding Securities of such series on such
record date (or their duly appointed agents). On or prior to any expiration date
set pursuant to this paragraph, the Company may, on one or more occasions at its
option, extend such expiration date to any later date. Nothing in this paragraph
shall prevent any Holder (or any duly appointed agent thereof) from taking, at
any time, any action contrary to or different from, any action previously taken,
or purported to have been taken, hereunder by such Holder, in which event the
Company may set a record date in respect thereof pursuant to this paragraph.
Notwithstanding the foregoing or the Trust Indenture Act, the Company shall not
set a record date for, and the provisions of this paragraph shall not apply with
respect to, any action to be taken by Holders pursuant to Section 501, 502 or
512 hereof.
Upon receipt by a Responsible Officer of the Trustee of actual
notice of any default described in Section 501 hereof, any declaration of
acceleration, or any rescission and annulment of any such declaration, pursuant
to Section 502 hereof or of any direction in accordance with Section 512 hereof,
a record date shall automatically and without any other action by any Person be
set for the purpose of determining the Holders of Outstanding Securities of the
series entitled to join in such notice, declaration, or rescission and
annulment, or direction, as the case may be, which record date shall be the
close of business on the day the Trustee actually receives such notice,
declaration, rescission and annulment or direction, as the case may be. The
Holders of Outstanding Securities of such series on such record date (or their
duly appointed agent), and only such Persons, shall be entitled to join in such
notice, declaration, rescission and annulment, or direction, as the case may be,
whether or not such Holders remain Holders after such record date; provided
that, unless such notice, declaration, rescission and annulment, or direction,
as the case may be, shall have become effective by virtue of Holders of the
requisite principal amount of Outstanding Securities of such series on such
record date (or their duly appointed agents) having joined therein on or prior
to the 90th day after such record date, such notice of default, declaration, or
rescission and annulment or direction given or made by the Holders, as the case
may be, shall automatically and without any action by any Person be canceled and
of no further effect. Nothing in this paragraph shall prevent a Holder (or a
duly appointed agent thereof) from giving, before or after the expiration of
such 90-day period, a notice of default, a declaration of acceleration, a
rescission and annulment of a declaration of acceleration or a direction in
accordance with Section 512 hereof, contrary to or different from, or, after the
expiration of such period, identical to, a previously given notice, declaration,
rescission and annulment, or direction, as the case may be, that has been
canceled pursuant to the proviso to the preceding sentence, in which event a new
record date in respect thereof shall be set pursuant to this paragraph.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any
other address previously furnished in writing to the Trustee by the
Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in the Security
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made at the direction of the Company in
a manner reasonably calculated, to the extent practicable under the
circumstances, to provide prompt notice and shall constitute a sufficient
notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
any provision of the Trust Indenture Act or another provision which is required
or deemed to be included in this Indenture by any of the provisions of the Trust
Indenture Act, the provision or requirement of the Trust Indenture Act shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, such provision
of the Trust Indenture Act shall be deemed to apply to this Indenture as so
modified or excluded, as the case may be.
SECTION 108. Effect of Headings, Table of Contents, Etc.
The Article and Section headings herein, the Table of Contents
and the Reconciliation and tie between the Trust Indenture Act of 1939 and this
Indenture are for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York without regard to
principals of conflict of law except Section 5-1401 of the New York General
Obligations Law.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
Stated Maturity or date of repayment at the option of a Holder 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) payment of interest, if
any, or principal (and premium, if any) need not be made on such date at such
Place of Payment, 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, Redemption Date, at the Stated Maturity or on the date of
repayment, provided that no interest shall accrue for the period from and after
such Interest Payment Date, Redemption Date, Stated Maturity or date of
repayment, as the case may be.
SECTION 114. No Recourse Against Others.
No recourse for the payment of the principal of or any premium
or interest on any Security or for any claim based thereon or otherwise in
respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Company, contained in this Indenture or in any supplemental
indenture, or in any Security, or because of the creation of any Indebtedness
represented thereby, shall be had against any incorporator, organizer, member,
limited partner, stockholder, officer or director, as such, past, present or
future, of the Company or any successor Person, either directly or through the
Company or any successor Person, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise;
it being expressly understood that all such liability is hereby expressly waived
and released as a condition of, and as a consideration for, the execution of
this Indenture and the issuance of the Securities.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the
form set forth in this Article, or in such other form as shall be established by
or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officer or officers executing such Securities, as evidenced by the officer's or
officers' execution of the Securities. If the form of Securities of any series
is established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by an authorized officer of
the Company, and delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 303 hereof for the authentication and
delivery of such Securities.
The Trustee's certificates of authentication shall be in
substantially the form set forth in this Article.
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officer or officers executing such Securities, as evidenced
by the officer's or officers' execution of such Securities.
SECTION 202. Form of Face of Security.
[If the Security is to be a Global Security, insert - This
Security is a Global Security within the meaning of the Indenture hereinafter
referred to and is registered in the name of a Depositary or a nominee of a
Depositary. This Security is exchangeable for Securities registered in the name
of a Person other than the Depositary or its nominee only in the limited
circumstances described in the Indenture, and no transfer of this Security
(other than a transfer of this Security as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary) may be registered except in limited
circumstances.
Unless this Global Security is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to the issuer or its agent for registration of transfer, exchange or payment,
and any definitive Security is issued in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much as the registered owner
hereof, Cede & Co., has an interest herein.]
SOUTHWESTERN ELECTRIC POWER COMPANY
[Title of the Security]
CUSIP No. __________ $__________
No. ________________
SOUTHWESTERN ELECTRIC POWER COMPANY, a corporation duly
organized and existing under the laws of the State of Delaware (the "Company",
which term includes any successor person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to
___________________________________, or registered assigns, the principal sum of
________________________ Dollars on _________________________________ [If the
Security is to bear interest prior to Maturity, insert - , and to pay interest
thereon from ________, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually on ____________ and
___________ in each year, commencing ________, at the rate per annum provided in
the title hereof, until the principal hereof is paid or made available for
payment [If applicable, insert - , and, subject to the terms of the Indenture,
at the rate per annum provided in the title hereof on any overdue principal and
premium and (to the extent that the payment of such interest shall be legally
enforceable) on any overdue installment of interest]. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the _______ or
________ (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture.]
[If the Security is not to bear interest prior to Maturity,
insert - The principal of this Security shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon redemption or
at Stated Maturity and in such case the overdue principal of this Security shall
bear interest at the rate of [yield to maturity]% per annum (to the extent that
the payment of such interest shall be legally enforceable), which shall accrue
from the date of such default in payment to the date payment of such principal
has been made or duly provided for. Interest on any overdue principal shall be
payable on demand. Any such interest on any overdue principal that is not so
paid on demand shall bear interest at the rate of [yield to maturity]% per annum
(to the extent that the payment of such interest shall be legally enforceable),
which shall accrue from the date of such demand for payment to the date payment
of such interest has been made or duly provided for, and such interest shall
also be payable on demand.]
Payment of the principal of (and premium, if any) and
interest[, if any,] on this Security will be made at the office or agency of the
Company maintained for that purpose in ________, in [such coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts - or state other currency] [If this Security
is not a Global Security, insert - ; provided, however, that at the option of
the Company payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register] [If this Security is a Global Security, insert applicable manner of
payment].
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, Southwestern Electric Power Company has
caused this instrument to be duly executed under its corporate seal.
Dated:
SOUTHWESTERN ELECTRIC POWER COMPANY
By______________________________________
[Name]
[Title]
[If more than one
officer is to sign -By______________________________________
[Name]
[Title]]
SECTION 203. Form of Reverse of Security.
SOUTHWESTERN ELECTRIC POWER COMPANY
[Title of the Security]
This Security is one of a duly authorized issue of securities
of the Company (the "Securities"), issued and to be issued in one or more series
under an Indenture, dated as of December 1, 1998, as amended and supplemented
from time to time (the "Indenture"), between the Company and The Bank of New
York, a New York banking corporation, as Trustee (the "Trustee", which term
includes any successor trustee under the Indenture), as to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the series designated on the face hereof [, limited in aggregate principal
amount to $________].
[If applicable, insert - This Security is not subject to
redemption prior to maturity.] [If applicable, insert - The Securities of this
series are subject to redemption upon not less than 30 or more than 60 days'
notice by mail to the Holders of such Securities at their addresses in the
Security Register for such series, [if applicable, insert - (1) on __________ in
any year commencing with the year ____ and ending with the year ____ through
operation of the sinking fund for this series at a Redemption Price equal to
100% of the principal amount, and (2)] at any time [on or after ___________,
19__], as a whole or in part, at the election of the Company, at the following
Redemption Prices (expressed as percentages of the principal amount):
If redeemed [on or before _____________, ___%, and if
redeemed] during the 12-month period beginning ___________, of the years
indicated:
Year Redemption Price Year Redemption Price
and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption [if applicable, insert - (whether
through operation of the sinking fund or otherwise)] with accrued and unpaid
interest to the Redemption Date, but interest installments whose Stated Maturity
is on or prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[If applicable, insert - Notwithstanding the foregoing, the
Company may not, prior to _________, redeem any Securities of this series as
contemplated by [Clause (2) of] the preceding paragraph as a part of, or in
anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted financial practice) of less
than ___% per annum.]
[The sinking fund for this series provides for the redemption
on _________ in each year beginning with the year ____ and ending with the year
____ of [not less than] __________ [("mandatory sinking fund") and, at the
option of the Company, not more than __________] aggregate principal amount of
Securities of this series. [Securities of this series acquired or redeemed by
the Company otherwise than through [mandatory] sinking fund payments may be
credited against subsequent [mandatory] sinking fund payments otherwise required
to be made in the order in which they become due.]]
[In the event of redemption of this Security in part only, a
new Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.]
The Indenture contains provisions for defeasance of (a) the
entire Indebtedness of this Security and (b) certain restrictive covenants upon
compliance by the Company with certain conditions set forth therein.
[If the Security is not an Original Issue Discount Security,
insert - If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.]
[If the Security is an Original Issue Discount Security,
insert - If an Event of Default with respect to Securities of this series shall
occur and be continuing, an amount of principal of the Securities of this series
(the "Acceleration Amount") may be declared due and payable in the manner and
with the effect provided in the Indenture. In case of a declaration of
acceleration on or before ________, __ or on _____________ in any year, the
Acceleration Amount per ______ principal amount at Stated Maturity of the
Securities shall be equal to the amount set forth in respect of such date below:
Acceleration Amount per
__________ principal amount at
Date of declaration Stated Maturity
and in case of a declaration of acceleration on any other date, the Acceleration
Amount shall be equal to the Acceleration Amount as of the next preceding date
set forth in the table above, plus accrued original issue discount (computed in
accordance with the method used for calculating the amount of original issue
discount that accrues for Federal income tax purposes) from such next preceding
date to the date of declaration at the yield to maturity. For the purpose of
this computation the yield to maturity is ___%. Upon payment (i) of the
Acceleration Amount so declared due and payable and (ii) of interest on any
overdue principal and overdue interest (in each case to the extent that the
payment of such interest shall be legally enforceable), all of the Company's
obligations in respect of the payment of the principal of and interest, if any,
on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in principal amount of
the Securities at the time Outstanding of all series to be affected (voting as a
class). The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest, if any, on this Security at the times, place and
rate, and in the coin or currency, herein prescribed.
[If this Security is a Global Security, insert - This Security
shall be exchangeable for Securities registered in the names of Persons other
than the Depositary with respect to such series or its nominee only as provided
in this paragraph. This Security shall be so exchangeable if (x) the Depositary
notifies the Company that it is unwilling or unable to continue as Depositary
for such series or at any time ceases to be a clearing agency registered as such
under the Exchange Act, (y) the Company executes and delivers to the Trustee an
Officers' Certificate providing that this Security shall be so exchangeable or
(z) there shall have occurred and be continuing an Event of Default with respect
to the Securities of such series. Securities so issued in exchange for this
Security shall be of the same series, having the same interest rate, if any, and
maturity and having the same terms as this Security, in authorized denominations
and in the aggregate having the same principal amount as this Security and
registered in such names as the Depositary for such Global Security shall
direct.]
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of [If this Security is a Global
Security, insert - a Security of the series of which this Security is a part]
[If this Security is not a Global Security, insert - this Security] is
registrable in the Security Register, upon surrender of this Security for
registration of transfer at the office or agency of the Company in any place
where the principal of (and premium, if any) and interest, if any, on this
Security are payable, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities of this series and of like tenor, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities of [If this Security is a Global Security
insert - the series of which this Security is a part] [If this Security is not a
Global Security, insert - this series] are issuable only in registered form
without coupons in denominations of $__________ and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
This Security shall be governed by and construed in accordance
with the laws of the State of New York without regard to principals of conflict
of law except Section 5-1401 of the New York General Obligations Law.
All terms used in this Security which are defined in the
Indenture shall have the meanings ascribed to them in the Indenture.
SECTION 204. Form of Trustee's Certificate of Authentication.
The Trustee's Certificate of Authentication shall be in the
following form:
This is one of the Securities of the series designated herein
and referred to in the within-mentioned Indenture.
Dated: _______________ .The Bank of New York
________________________,
as Trustee
By_________________________________
Authorized Signatory
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited. All Securities of
each series under this Indenture shall in all respects be equally and ratably
entitled to the benefits hereof with respect to such series without preference,
priority or distinction on account of the actual time of the authentication and
delivery or Stated Maturity of the Securities of such series.
The Securities may be issued in one or more series. Each
series of Securities shall be created either by or pursuant to a Board
Resolution or by or pursuant to an indenture supplemental hereto. The Securities
of each such series may bear such date or dates, be payable at such place or
places, have such Stated Maturity or Maturities, bear interest at such rate or
rates (which may be fixed or floating), from such date or dates, payable in such
installments and on such dates and at such place or places to the Holders of
Securities registered as such on the related Regular Record Dates, or may bear
no interest, and may be redeemable or repayable at such Redemption Price or
Prices or Repayment Price or Prices, as the case may be, whether at the option
of the Holder or otherwise, and upon such terms, all as shall be provided for in
or pursuant to the Board Resolution or in or pursuant to the supplemental
indenture creating that series. There may also be established in or pursuant to
a Board Resolution and, subject to Section 303, set forth, or determined in the
manner provided, in an Officers' Certificate, or pursuant to a supplemental
indenture prior to the issuance of Securities of each such series, provision
for:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Sections 304, 305, 306, 906, or
1107 hereof and except for any Securities which, pursuant to Section
303 hereof, are deemed never to have been authenticated and delivered
hereunder);
(3) the Person or Persons (without specific identification) to
whom any interest on Securities of the series, or any Tranche thereof,
shall be payable, if other than the Person in whose name the Security
(or one or more Predecessor Securities) is registered at the close of
business on the regular Record Date for such interest;
(4) the date or dates on which the principal of the Securities
of the 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);
(5) the rate or rates at which the Securities of the series,
or any Tranche thereof, shall bear interest, if any, (including the
rate or rates at which overdue principal shall bear interest, if
different from the rate or rates at which such Securities shall bear
interest prior to maturity, and, if applicable, the rate or rates at
which overdue premium or interest shall bear interest, if any), or any
formulary or other method or other means by which 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 for
the interest payable on any Interest Payment Date and the basis for
computation of interest, if other than as provided in Section 310;
(6) the place or places, if any, in addition to or in place of
the office or agency of the Company in The City of New York, State of
New York or the principal office or place of business of the Trustee or
its successors in trust under the Indenture, which, at the date hereof,
is located at 101 Barclay Street, New York, NY 10286, Attention:
Corporate Trust Administration, at which or methods 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 in respect of the Securities of such series, or any
Tranche thereof, and this Indenture may be served;
(7) 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 Securities of the series, or any Tranche thereof, may be
redeemed, in whole or in part, at the option of the Company and any
restrictions on such redemptions, including but not limited to a
restriction on a partial redemption by the Company of the Securities of
any series, or any Tranche thereof, resulting in delisting of such
Securities from any national exchange;
(8) the obligation or obligations, if any, of the Company to
redeem, repay or purchase Securities of the 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 Securities of
the series shall be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligation, and applicable exceptions to the
requirements of Section 1104 in the case of mandatory redemption or
redemption at the option of the Holder;
(9) if other than such coin or currency of the United States
of America as at the time of payment is legal tender for payment of
public or private debts, the coin or currency, including composite
currencies, in which payment of the principal of (and premium, if any)
and interest, if any, on the Securities, or any Tranche thereof, of the
series shall be payable;
(10) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series, or any Tranche
thereof, which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 502 hereof;
(11) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series,
or any Tranche thereof, shall be issuable;
(12) if the principal of (and premium, if any) or interest, if
any, on the Securities of the 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;
(13) if the amount of payments of principal of (and premium,
if any) or interest, if any, on the Securities of the series, or any
Tranche thereof, may be determined with reference to an index or other
fact or event ascertainable outside this Indenture, the manner in which
such amounts shall be determined to the extent not established pursuant
to subsection (5) of this paragraph;
(14) if the principal of (and premium, if any) or interest on
the Securities of the 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;
(15) any Events of Default, in addition to those specified in
Section 501, with respect to the Securities of such Series, and any
covenants of the Company for the benefit of the Holders of the
Securities of such series, or any Tranche thereof, in addition to those
set forth in Article Ten;
(16) if the Securities of the series, or any Tranche thereof,
shall be issued in whole or in part in the form of one or more Global
Securities, (i) whether beneficial owners of interests in any such
Global Security may exchange such interests for Securities of such
series of like tenor and of authorized form and denomination and the
circumstances under which any such changes may occur, if other than in
the manner provided in Section 305 hereof, (ii) the Depositary for such
Global Security or Securities and (iii) any and all other matters
incidental to such Securities;
(17) 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;
(18) if other than as set forth in Article Four, provisions
for the satisfaction and discharge of this Indenture, with respect to
the Securities of the series, or any Tranche thereof;
(19) if the Securities of the series, or any Tranche thereof,
do not bear interest the applicable dates for purposes of Section 701;
(20) if the Securities of the series, or any Tranche thereof,
are issuable as Indexed Securities, the manner in which the amount of
payments of principal, premium, if any, and interest, if any, on that
series will be determined;
(21) to the extent not established pursuant to subsection (16)
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;
(22) 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;
(23) any collateral security, assurance or guarantee for the
Securities of such series; and
(24) any other terms of the series, or any Tranche thereof,
(which terms shall not be inconsistent with the provisions of this
Indenture), including, without limitation, any terms required for or
appropriate to (i) establishing one or more series of medium-term notes
to be issued in a Periodic Offering or (ii) providing for the
remarketing of the Securities of such series.
All Securities of any one series (other than Securities
offered in a Periodic Offering) shall be substantially identical except as to
denomination and except as may otherwise be provided in or pursuant to the Board
Resolution referred to above and set forth in the Officers' Certificate referred
to above or in any such indenture supplemental hereto.
If any of the terms of the series, including the form of
Security of such series, are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by
the Secretary or an Assistant Secretary or other authorized officer of the
Company, and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 hereof for the authentication and delivery of
such series of Securities.
With respect to Securities of a series offered in a Periodic
Offering, such Board Resolution and Officers' Certificate or supplemental
indenture may provide general terms or parameters for Securities of such series
and provide either that the specific terms of particular Securities of such
series shall be specified in a Company Order or that such terms shall be
determined by the Company or its agents in accordance with other procedures
specified in a Company Order as contemplated by the third paragraph of Section
303.
SECTION 302. Denominations.
The Securities of each series shall be issuable in registered
form without coupons, except as otherwise expressly provided in a supplemental
indenture hereto, in such denominations as shall be specified as contemplated by
Section 301 hereof. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by
its Chief Executive Officer, its President, a Vice President, its General
Manager, its Treasurer or the Person exercising similar authority on behalf of
any other obligor on the Securities, under its corporate seal (if any),
reproduced thereon, and which need not be attested. The Securities of any series
shall be executed by such additional officer, if any, as shall be specified
pursuant to Section 301 hereof. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signature of any
individual who was at any time the proper officer of the Company shall bind the
Company, notwithstanding that such individual has ceased to hold such office
prior to the authentication and delivery of such Securities or did not hold such
office at the date of authentication of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, or, in the case of
Securities offered in a Periodic Offering, from time to time in accordance with
such other procedures (including, without limitation, the receipt by the Trustee
of electronic instructions from the Company or its duly authorized agents,
promptly confirmed in writing by the Company) acceptable to the Trustee as may
be specified from time to time by a Company Order for the specific terms of the
Securities being so offered, together with (i) a Company Order for the
authentication and delivery of such Securities, (ii) an Officers' Certificate
stating that (x) the Company is not, and upon the authentication by the Trustee
of the series of Securities, will not be in default under any of the terms or
covenants contained in the Indenture, and (y) all conditions that must be met by
the Company to issue Securities under the Indenture have been met, and the
Trustee in accordance with the Company Order shall authenticate and deliver such
Securities. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301 hereof, in authenticating such Securities, and accepting
the additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to Section
601 hereof) shall be fully protected in relying upon, an Opinion of Counsel
stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201 hereof, that
such form has been established in conformity with the provisions of
this Indenture;
(b) if the terms of such Securities have been established by
or pursuant to Board Resolution as permitted by Section 301 hereof,
that such terms have been established in conformity with the provisions
of this Indenture;
(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company, enforceable in
accordance with their terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or
transfer or other similar laws relating to or affecting the rights of
creditors generally and except as the enforceability thereof is subject
to the application of general principles of equity (regardless of
whether considered in a proceeding in equity or at law), including,
without limitation, (i) the possible unavailability of specific
performance, injunctive relief or any other equitable remedy and (ii)
concepts of materiality, reasonableness, good faith and fair dealing;
provided, however, that, with respect to Securities of a series offered in a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel in connection only with the first authentication of Securities of such
series, and in such case the opinions described in Clauses (b) and (c) above may
state, respectively, that:
(i) if the terms of such Securities are to be established
pursuant to a Company Order or pursuant to such procedures as may be
specified from time to time by a Company Order, all as contemplated by
a Board Resolution or action taken pursuant thereto, such terms will
have been duly authorized by the Company and established in conformity
with the provisions of this Indenture; and
(ii) that such Securities, when completed by appropriate
insertions and executed and delivered by the Company to the Trustee in
accordance with this Indenture, authenticated and delivered by the
Trustee in accordance with this Indenture, and issued and delivered by
the Company and paid for, all in accordance with any agreement of the
Company relating to the offering, issuance and sale of such Securities,
will be duly issued under this Indenture and will constitute the legal,
valid and binding obligations of the Company, enforceable in accordance
with their terms, subject to bankruptcy, insolvency, reorganization and
other similar laws of general applicability relating to or affecting
generally the enforcement of creditors' rights, to general equitable
principles and to such other qualifications as such counsel shall
conclude do not materially affect the rights of Holders of such
Securities and any coupons.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
protections or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 hereof and of
the preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Board Resolution,
the Officers' Certificate, or an indenture supplemental hereto otherwise
required pursuant to Section 301 hereof or the Company Order, the Officers'
Certificate and the Opinion of Counsel otherwise required pursuant to such
preceding paragraph at or prior to the time of authentication of each Security
of such series if such documents are delivered at or prior to the time of
authentication upon original issuance of the first Security of such series to be
issued. If all of the Securities of a series are not authenticated and issued at
one time, for each issuance of Securities after the initial issuance of
Securities, the Company shall be required only to deliver to the Trustee the
Security executed by the Company together with a Company Order to the Trustee to
authenticate such Security and to deliver such Security in accordance with the
instructions specified by such Company Order. Any such Company Order shall
constitute a representation and warranty by the Company that the statements made
in the Officers' Certificate delivered to the Trustee prior to the
authentication and issuance of the first Security of such series are true and
correct on the date thereof as if made on and as of the date thereof.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein executed by the Trustee by manual signature, and such certificate upon
any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture. Notwithstanding the foregoing, if any Security
shall have been authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 hereof together with a written statement
(which need not comply with Section 102 hereof and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been issued and sold by
the Company, for all purposes of this Indenture such Security shall be deemed
never to have been authenticated and delivered hereunder and shall never be
entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officer or officers executing such Securities may
determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities
of such series at the office or agency of the Company in a Place of Payment for
that series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of the same series and of like tenor of
authorized denominations. Until so exchanged the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office and in
any other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Securities and of transfers of Securities. The Trustee
is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of
any series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and tenor.
At the option of the Holder, any Security or Securities of any
series, other than a Global Security, may be exchanged for other Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and tenor, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to the Holder 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 Sections 304, 906 or 1107 hereof
not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of that series selected for redemption under Section
1103 hereof and ending at the close of business on the day of such mailing, or
(ii) to register the transfer of or exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part.
The provisions of this Section 305 are, with respect to any
Global Security, subject to Section 311 hereof.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section 306,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this
Section 306 in lieu of any destroyed, lost or stolen Security shall constitute
an original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section 306 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.
Interest on any Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest.
Any interest on any Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Securities of such series at his address as it
appears in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 307, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Holder of a Security as the owner of such Security for the purpose
of receiving payment of principal of (and premium, if any) and (subject to
Section 307 hereof) interest, if any, on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary. All such payments so made to any such
Holder, or upon such Holder's order, shall be valid, and, to the extent of the
sums so paid, effectual to satisfy and discharge the liability for moneys
payable upon any such Security.
No holder of any beneficial interest in any Global Security
held on its behalf by a Depositary shall have any rights under this Indenture
with respect to such Global Security, and such Depositary may be treated by the
Company, the Trustee, and any agent of the Company or the Trustee as the owner
of such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall impair, as between a Depositary and such holders
of beneficial interests, the operation of customary practices governing the
exercise of the rights of the Depositary as holder of any Security.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and shall be promptly canceled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly canceled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section 309, except as expressly
permitted by this Indenture. All canceled Securities held by the Trustee shall
be disposed of as directed by a Company Order, provided that the Trustee shall
not be required to destroy canceled Securities.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301
hereof for Securities of any series, interest, if any, on the Securities of each
series shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 311. Global Securities.
If the Company establishes pursuant to Section 301 hereof that
the Securities of a particular series are to be issued in the form of a Global
Security, then the Company shall execute and the Trustee shall, in accordance
with Section 303 hereof, authenticate and deliver, a Global Security or
Securities which (i) shall represent, and shall be denominated in an aggregate
amount equal to the aggregate principal amount of, all of the Outstanding
Securities of such series, (ii) shall be registered in the name of the
Depositary or its nominee, (iii) shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary's instruction and (iv) shall bear a
legend substantially to the following effect:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. This Security is exchangeable
for Securities registered in the name of a person other than the
Depositary or its nominee only in the limited circumstances described
in the Indenture, and no transfer of this Security (other than a
transfer of this Security as a whole by the Depositary to a nominee of
the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary) may be registered except in limited
circumstances.
Unless this Global Security is presented by an authorized
representative of the Depositary to the Company or its agent for
registration of transfer, exchange or payment, and any definitive
Security is issued in the name of [Cede & Co.] or in such other name as
is requested by an authorized representative of the Depositary (and any
payment is made to [Cede & Co.] or to such other entity as is requested
by an authorized representative of the Depositary), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL in as much as the registered owner hereof, [Cede & Co.],
has an interest herein."
Notwithstanding the provisions of Section 305 hereof, the
Global Security of a series may be transferred, in whole but not in part and in
the manner provided in Section 305 hereof, only to another nominee of the
Depositary for such series, or to a successor Depositary for such series
selected or approved by the Company or to a nominee of such successor
Depositary.
If (i) at any time the Depositary for a series of Securities
notifies the Company that it is unwilling or unable to continue as Depositary
for such series or if at any time the Depositary for such series shall no longer
be registered or in good standing under the Exchange Act, or other applicable
statute or regulation and a successor Depositary for such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such condition, as the case may be or (ii) there shall have
occurred and be continuing after any applicable grace periods an Event of
Default with respect to the Securities for a series, then in each such case,
this Section 311 shall no longer be applicable to the Securities of such series
and the Company will execute, and subject to Section 305 hereof, the Trustee
will authenticate and deliver Securities of such series in definitive registered
form without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Securities of such series in
exchange for such Global Securities. In addition, the Company may at any time
determine that the Securities of any series shall no longer be represented by
Global Securities and that the provisions of this Section 311 shall no longer
apply to the Securities of such series. In such event the Company will execute
and subject to Section 305 hereof, the Trustee, upon receipt of an Officers'
Certificate evidencing such determination by the Company, will authenticate and
deliver Securities of such series in definitive registered form without coupons,
in authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Securities of such series in exchange for such
Global Securities. Upon the exchange of the Global Securities for such
Securities in definitive registered form without coupons, in authorized
denominations, the Global Securities shall be canceled by the Trustee. Such
Securities in definitive registered form issued in exchange for the Global
Securities pursuant to this Section 311, shall be registered in such names and
in such authorized denominations as the Depositary, pursuant to the instructions
from its direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver Securities to the Depositary for delivery to
the persons in whose names such Securities are so registered.
SECTION 312. Periodic Offering of Securities.
Notwithstanding any contrary provision herein, if all
Securities of a series are not to be originally issued at one time, it shall not
be necessary for the Company to deliver to the Trustee an Officers' Certificate,
Board Resolution, supplemental indenture, Opinion of Counsel or Company Request
otherwise required pursuant to Sections 202, 301 and 303 at or prior to the time
of authentication of each Security of such series if such documents are
delivered to the Trustee or its agent at or prior to the authentication upon
original issuance of the first Security of such series to be issued; provided
that any subsequent request by the Company to the Trustee to authenticate
Securities of such series upon original issuance shall constitute a
representation and warranty by the Company and its counsel that as of the date
of such request, the statements made in the Officers' Certificate and opinions
made in the Opinion of Counsel delivered pursuant to Section 102 and 303,
respectively, shall be true and correct as if made on such date.
An Officers' Certificate, supplemental indenture or Board
Resolution delivered by the Company to the Trustee in the circumstances set
forth in the preceding paragraph may provide that Securities which are the
subject thereof will be authenticated and delivered by the Trustee or its agent
on original issue from time to time upon the written order of a person or
persons designated in such Officers' Certificate, supplemental indenture or
Board Resolution (any such telephonic instructions to be confirmed promptly in
writing by such person or persons) and that such person or persons are
authorized to determine, consistent with such Officers' Certificate,
supplemental indenture or Board Resolution, such terms and conditions of said
Securities as are specified in such Officers' Certificate, supplemental
indenture or Board Resolution.
SECTION 313. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the "CUSIP" numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either (A) all Securities of that series theretofore
authenticated and delivered (other than (x) Securities which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306 hereof and (y) Securities for whose payment
money has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003 hereof) have been
delivered to the Trustee for cancellation; or
(B) all such Securities of that series not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable,
(ii) will become due and payable at their Stated
Maturity within one year,
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the
expense, of the Company, or
(iv) are deemed paid and discharged pursuant to
Section 403 hereof, as applicable,
and the Company, in the case of (i), (ii), (iii) or (iv) of clause (B)
above, has deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose an amount of (a) money in the
currency or units of currency in which such Securities are payable, or
(b) in the case of (ii) or (iii) of clause (B) above and (except as
provided in an indenture supplemental hereto) if no Securities of the
affected series Outstanding are subject to repurchase at the option of
Holders (I) U.S. Government Obligations which through the payment of
interest and principal in respect thereof in accordance with their
terms will provide not later than one day before the Stated Maturity or
Redemption Date, as the case may be, money in an amount, or (II) a
combination of money or U.S. Government Obligations as provided in (I)
above, in each case, sufficient to pay and discharge the entire
Indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal (and premium, if any) and
interest, if any, to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated Maturity
or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 607
hereof, the obligations of the Trustee to any Authenticating Agent under Section
614 hereof and, if money or U.S. Government Obligations shall have been
deposited with the Trustee pursuant to subclause (B) of clause (1) of this
Section 401 or if money or U.S. Government Obligations shall have been deposited
with or received by the Trustee pursuant to Section 403 hereof, the obligations
of the Trustee under Section 402 hereof and the last paragraph of Section 1003
hereof shall survive.
SECTION 402. Application of Trust Money.
(a) Subject to the provisions of the last paragraph of Section
1003 hereof, all money or U.S. Government Obligations deposited with the Trustee
pursuant to Sections 401, 403 or 1009 hereof and all money received by the
Trustee in respect of U.S. Government Obligations deposited with the Trustee
pursuant to Sections 401, 403 or 1009 hereof, shall be held in trust and applied
by it, in accordance with the provisions of the Securities and this Indenture,
to the payment, to the persons entitled thereto, of the principal (and premium,
if any) and interest, if any, for whose payment such money has been deposited
with or received by the Trustee or to make mandatory sinking fund payments or
analogous payments as contemplated by Sections 401, 403 or 1009 hereof.
(b) The Company shall pay and shall indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against U.S.
Government Obligations deposited pursuant to Sections 401, 403 or 1009 hereof or
the interest and principal received in respect of such obligations other than
any payable by or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from time
to time upon Company Request any U.S. Government Obligations or money held by it
as provided in Sections 401, 403 or 1009 hereof which, in the opinion of a
nationally recognized firm of independent certified public accountants expressed
in a written certification thereof delivered to the Trustee, are then in excess
of the amount thereof which then would have been required to be deposited for
the purpose for which such U.S. Government Obligations or money was deposited or
received. This provision shall not authorize the sale by the Trustee of any U.S.
Government Obligations held under this Indenture.
SECTION 403. Satisfaction, Discharge and Defeasance of Securities of any Series.
The Company shall be deemed to have paid and Discharged the
entire Indebtedness on all the Outstanding Securities of any series on the 91st
day after the date of the deposit referred to in subparagraph (1) hereof, and
the provisions of this Indenture, as it relates to such Outstanding Securities
of such series, shall no longer be in effect (and the Trustee, at the expense of
the Company, shall at Company Request execute proper instruments acknowledging
the same), except as to:
(a) the rights of Holders of Securities of such series to
receive, from the trust funds described in subparagraph (1) hereof, (i)
payment of the principal of (and premium, if any) and each installment
of principal of (and premium, if any) or interest, if any, on the
Outstanding Securities of such series on the Stated Maturity of such
principal or installment of principal or interest or to and including
the Redemption Date irrevocably designated by the Company pursuant to
subparagraph (5) hereof and (ii) the benefit of any mandatory sinking
fund payments applicable to the Securities of such series on the day of
which such payments are due and payable in accordance with the terms of
this Indenture and the Securities of such series;
(b) the Company's obligations with respect to such Securities
of such series under Sections 305, 306, 1002 and 1003 hereof and if the
Company shall have irrevocably designated a Redemption Date pursuant to
subparagraph (5) hereof, Sections 1101, 1104 and 1106 hereof as they
apply to such Redemption Date;
(c) the Company's obligations with respect to the Trustee
under Section 607 hereof; and
(d) the rights, powers, trust and immunities of the Trustee
hereunder and the duties of the Trustee under Section 402 hereof and,
if the Company shall have irrevocably designated a Redemption Date
pursuant to subparagraph (5) hereof, Article Eleven and the duty of the
Trustee to authenticate Securities of such series on registration of
transfer or exchange;
provided that, the following conditions shall have been satisfied:
(1) the Company has deposited or caused to be irrevocably
deposited (except as provided in Section 402(c) hereof and the last
paragraph of Section 1003 hereof) with the Trustee as trust funds in
trust, specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of the Securities of such series, (i) money,
in the currency or units of currency in which such Securities are
payable, in an amount, or (ii) (except as provided in a supplemental
indenture or Board Resolution with respect to such series) if
Securities of such series are not subject to repurchase at the option
of Holders, (A) U.S. Government Obligations which through the payment
of interest and principal in respect thereof in accordance with their
terms will provide not later than one day before the due date of any
payment referred to in clause (x) or (y) of this subparagraph (1) money
in an amount or (B) a combination thereof, in each case sufficient, in
the report of a nationally recognized firm of independent certified
public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which the Trustee
shall be instructed to apply to pay and discharge, (x) the principal of
(and premium, if any) and each installment of principal (and premium,
if any) and interest, if any, on the Outstanding Securities of such
series on the Stated Maturity of such principal or installment of
principal or interest or to and including the Redemption Date
irrevocably designated by the Company pursuant to subparagraph (5)
hereof and (y) any mandatory sinking fund payments applicable to the
Securities of such series on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of the
Securities of such series;
(2) the Company has delivered to the Trustee an Opinion of
Counsel to the effect that such provision would not cause any
Outstanding Securities of such series then listed on any national
securities exchange to be delisted as a result thereof;
(3) no Event of Default or event which with notice or lapse of
time would become an Event of Default (including by reason of such
deposit) with respect to the Securities of such series shall have
occurred and be continuing on the date of such deposit or during the
period ending on the 91st day after such date;
(4) the Company has delivered to the Trustee an unqualified
opinion, in form and substance reasonably acceptable to the Trustee, of
independent counsel of national standing selected by the Company and
satisfactory to the Trustee to the effect that (i) Holders of the
Securities will not recognize income, gain or loss for Federal income
tax purposes as a result of the deposit, defeasance and discharge,
which opinion shall be based on a change in law or a ruling by the U.S.
Internal Revenue Service and (ii) the defeasance trust is not, or is
registered as, an investment company under the Investment Company Act
of 1940;
(5) if the Company has deposited or caused to be deposited
money or U.S. Government Obligations to pay or discharge the principal
of (and premium, if any) and interest, if any, on the Outstanding
Securities of a series to and including a Redemption Date on which all
of the Outstanding Securities of such series are to be redeemed, such
Redemption Date shall be irrevocably designated by a Board Resolution
delivered to the Trustee on or prior to the date of deposit of such
money or U.S. Government Obligations, and such Board Resolution shall
be accompanied by an irrevocable Company Request that the Trustee give
notice of such redemption in the name and at the expense of the Company
not less than 30 nor more than 60 days prior to such Redemption Date in
accordance with Section 1104 hereof; and
(6) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of the Securities have been complied with.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be affected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body) unless such event is either inapplicable to
a particular series (to the extent expressly provided in the form of Security
for such series) or it is specifically deleted or modified in the supplemental
indenture creating such series of Securities or in the form of Security for such
series:
(a) default in the payment of any interest upon any Security
of that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(b) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity, and continuance
of such default for a period of three days; or
(c) default in the payment of any sinking fund installment,
when and as due by the terms of a Security of that series, and
continuance of such default for a period of three days; or
(d) default in the performance, or breach, of any covenant or
warranty or obligation of the Company in this Indenture (other than a
covenant or warranty a default in whose performance or whose breach is
elsewhere in this Section 501 specifically dealt with or which has
expressly been included in this Indenture solely for the benefit of any
series of Securities other than that series), and continuance of such
default or breach for a period of 90 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 33% in aggregate
principal amount of the Outstanding Securities of that series a written
notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(e) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency or other similar law or (B) a decree or order
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any
substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order for relief or any such other decree or order unstayed and in
effect for a period of 90 consecutive days; or
(f) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency
or other similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, or the
filing by it of a petition or answer or consent seeking relief under
any applicable Federal or State law, or the consent by it to the filing
of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
similar official of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the taking of corporate action by the Company in
furtherance of any such action; or
(g) any other Event of Default provided in the supplemental
indenture or provided in or pursuant to the Board Resolution under
which such series of Securities is issued or in the form of Security
for such series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any
series at the time Outstanding described in paragraph (a), (b), (c), (d) or (g)
of Section 501 hereof occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 33% in aggregate principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
any of the Securities of that series are Original Issue Discount Securities,
such portion of the principal amount of such Securities as may be specified in
the terms thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable upon the date which is 10 days
after the date of such notice.
If an Event of Default described in paragraph (e) or (f) of
Section 501 hereof occurs and is continuing, then and in every such case, the
principal amount (or, if any Securities are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms thereof)
of all the Securities shall, without any notice to the Company or any other act
on the part of the Trustee or any Holder of the Securities, become and be
immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest, if any, on all Securities
of that series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than
by such declaration of acceleration and interest thereon at
the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon any overdue interest at the rate or
rates prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of and accrued
interest on Securities of that series which have become due solely by
such declaration of acceleration, have been cured or waived as provided
in Section 513 hereof.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been accelerated
and declared due and payable pursuant to the provisions hereof, then, from and
after such declaration, unless such declaration has been rescinded and annulled,
the principal amount of such Original Issue Discount Securities shall be deemed,
for all purposes hereunder, to be such portion of the principal thereof as shall
be due and payable as a result of such acceleration, and payment of such portion
of the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if (a) default is made in the
payment of any interest on any Security when such interest becomes due and
payable and such default continues for a period of 30 days, or (b) default is
made in the payment of the principal of (or premium, if any, on) any Security at
the Maturity thereof, then the Company will, upon written demand of the Trustee,
pay to it, for the benefit of the Holders of such Securities, the whole amount
then due and payable on such Securities for principal (and premium, if any) and
interest, if any, and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal (and premium, if any) and
on any overdue interest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If any Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights.
The Trustee shall not be required to take notice or be deemed
to have notice of any Event of Default other than pursuant to paragraphs (a),
(b) or (c) of Section 501 of this Indenture, unless a Responsible Officer of the
Trustee shall be specifically notified in writing of such default by the
Company, or by the Holders of a majority in aggregate principal amount of
Outstanding Securities.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Securities and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and any other amounts due the
Trustee under Section 607 hereof.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order with respect to the Securities of the
series in respect of which such money was collected 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, upon presentation of the Securities
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607 hereof;
SECOND: In case the principal and premium, if any, of the
Securities of such series in respect of which moneys have been
collected shall not have become and be then due and payable, to the
payment of interest, if any, on the Securities of such series in
default in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been
collected by the Trustee and to the extent permitted by law) upon the
overdue installments of interest at the rate prescribed therefor in
such Securities, such payments to be made ratably to the Persons
entitled thereto, without discrimination or preference;
THIRD: In case the principal or premium, if any, of the
Securities of such series in respect of which moneys have been
collected shall have become and shall be then due and payable, to the
payment of the whole amount then owing and unpaid upon all the
Securities of such series for principal and premium, if any, and
interest, if any, with interest upon the overdue principal and premium,
if any, and (to the extent that such interest has been collected by the
Trustee and to the extent permitted by law) upon overdue installments
of interest at the rate prescribed therefor in the Securities of such
series; and in case such moneys shall be insufficient to pay in full
the whole amount so due and unpaid upon the Securities of such series,
then to the payment of such principal and any premium and interest,
without preference or priority of principal over interest, or of
interest over principal or premium, or of any installment of interest
over any other installment of interest, or of any Security of such
series over any other Security of such series, ratably to the aggregate
of such principal and any premium and accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the
Company or any other Person lawfully entitled thereto.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right
to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given written notice to a
Responsible Officer of the Trustee of a continuing Event of Default
with respect to the Securities of that series;
(2) the Holders of not less than 33% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity satisfactory to it against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Section 307 hereof) interest, if any, on such Security on the Stated
Maturity or Maturities expressed in such Security (or, in the case of redemption
or repayment at the option of the Holder, on the Redemption Date or the
Repayment Date, respectively) and to institute suit for the enforcement of any
such payment, and such rights shall not be impaired without the consent of such
Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306 hereof, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with respect
to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee shall not determine that the action so
directed would be unjustly prejudicial to Holders not taking part in
such action.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of any series may on behalf of the Holders
of all the Securities of such series waive any past default hereunder with
respect to such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest, if any, on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 514 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities of
any series, 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 or repayment at the option of the
Holder, on or after the Redemption Date or the Repayment Date, respectively).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of a default with respect
to the Securities of any series,
(1) the Trustee undertakes to perform 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
(2) in the absence of bad faith on its part, the
Trustee may 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 provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall examine the same to
determine whether or not they conform to the requirements of
this Indenture.
(b) In case a default has occurred and is continuing, the
Trustee shall exercise 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 person would exercise or use under the circumstances in the conduct of
such person's 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
(1) this Subsection shall not be construed to limit
the effect of Subsection (a) of this Section 601;
(2) 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;
(3) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of any series,
determined as provided in Section 512 hereof, 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
(4) 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 601. The permissive right of the Trustee to do things enumerated in
this Indenture shall not be construed as a duty and it shall not be answerable
for other than its own negligent action, its own negligent failure to act or its
own willful misconduct.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder
with respect to the Securities of any series, the Trustee shall transmit by mail
to all Holders of Securities of such series, as their names and addresses appear
in the Security Register, notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or premium,
if any) or interest, if any, on any Security of such series or in the payment of
any sinking fund installment with respect to Securities of such series, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors or
Responsible Officers of the Trustee in good faith determine that the withholding
of such notice is in the interest of the Holders of Securities of such series;
and provided, further, that in the case of any default of the character
specified in Section 501(d) hereof with respect to Securities of such series, no
such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section 602, the term "default"
means any event which is, or after notice or lapse of time or both would become,
an Event of Default with respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601 hereof:
(a) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of Indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order or as
otherwise expressly provided herein and any resolution of the Board of Directors
may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee deems it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, conclusively rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and
the advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to expend or risk
its own funds or to exercise, at the request or direction of any of the Holders,
any of the rights or powers vested in it by this Indenture pursuant to this
Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance 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 be entitled
upon reasonable request to examine the books, records and premises of the
Company, 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;
(h) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably believed by
it to be authorized or within the discretion or rights or powers conferred upon
it by this Indenture;
(i) the Trustee shall not be deemed to have notice of any
default or Event of Default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Securities and this Indenture; and
(j) the rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as the statements
of the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof. The Trustee
shall not be responsible for doing or performing any thing or act which the
Company shall have covenanted to do or perform, or for any compliance with any
covenant by the Company, nor shall the Trustee be bound to ascertain or inquire
as to the performance of any covenant, condition or agreement by the Company,
but it may require full information and advice in regard to any of the
foregoing.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 608 and 613 hereof, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such compensation
as is agreed upon in writing, or, if no such agreement exists,
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), and shall
have a lien therefor on any and all funds at any time held by it under
this Indenture for such compensation;
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel, which compensation, expenses and disbursements
shall be set forth in sufficient detail), and shall have a lien
therefor on any and all funds at any time held by it under this
Indenture for such expenses and disbursements, except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
SECTION 608. Conflicting Interests.
The Trustee for the Securities of any series issued hereunder
shall be subject to the provisions of Section 310(b) of the Trust Indenture Act
during the period of time provided for therein. In determining whether the
Trustee has a conflicting interest as defined in Section 310(b) of the Trust
Indenture Act with respect to the Securities of any series, there shall be
excluded for purposes of the conflicting interest provisions of such Section
310(b) the Securities of every other series issued under this Indenture. Nothing
herein shall prevent the Trustee from filing with the Commission the application
referred to in the second to last paragraph of Section 310(b) of the Trust
Indenture Act.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
eligible to act as trustee under the Trust Indenture Act and which shall have a
combined capital and surplus of at least $50,000,000. If the Trustee does not
have an office in The City of New York, the Trustee may appoint an agent in The
City of New York reasonably acceptable to the Company to conduct any activities
which the Trustee may be required under this Indenture to conduct in The City of
New York. If the Trustee does not have an office in The City of New York or has
not appointed an agent in The City of New York, the Trustee shall be a
participant in The Depository Trust Company and FAST distribution systems. If
such corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of a Federal, State, or District of Columbia
supervising or examining authority, then for the purposes of this Section 609,
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 609, the Trustee shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 610. Resignation and Removal; Appointment of Successor Trustee.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 611 hereof.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 611 hereof shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section
310(b) of the Trust Indenture Act pursuant to Section 608
hereof with respect to any series of Securities after written
request therefor by the Company or by any Holder who has been
a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under
Section 609 hereof and shall fail to resign after written
request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514 hereof,
any Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees. If the
instrument of acceptance by a successor Trustee required by Section 611 hereof
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series, the Company, by
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 611 hereof. If, within one year after
such resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
611 hereof, become the successor Trustee with respect to the Securities of such
series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 611 hereof, any Holder who has
been a bona fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by mailing written notice of such event by first-class mail, postage prepaid, to
all Holders of Securities of such series as their names and addresses appear in
the Security Register. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its
Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section 611, 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 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
(a) Subject to Subsection (b) of this Section 613, if the
Trustee shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Company within three months prior to a default, as defined in
Subsection (c) of this Section 613, or subsequent to such a default, then,
unless and until such default shall be cured, the Trustee shall set apart and
hold in a special account for the benefit of the Trustee individually, the
Holders of the Securities and the holders of other indenture securities, as
defined in Subsection (c) of this Section 613:
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of principal
or interest, effected after the beginning of such three-month period
and valid as against the Company and its other creditors, except any
such reduction resulting from the receipt or disposition of any
property described in paragraph (2) of this Subsection, or from the
exercise of any right of set-off which the Trustee could have exercised
if a petition in bankruptcy had been filed by or against the Company
upon the date of such default; and
(2) all property received by the Trustee in respect of any
claims as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the beginning
of such three-month period, or an amount equal to the proceeds of any
such property, if disposed of, subject, however, to the rights, if any,
of the Company and its other creditors in such property or such
proceeds.
Nothing herein contained, however, shall affect the right of
the Trustee:
(A) to retain for its own account (i) payments made on account
of any such claim by any Person (other than the Company) who is liable
thereon, and (ii) the proceeds of the bona fide sale of any such claim
by the Trustee to a third Person, and (iii) distributions made in cash,
securities or other property in respect of claims filed against the
Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable
State law;
(B) to realize, for its own account, upon any property held by
it as security for any such claim, if such property was so held prior
to the beginning of such three-month period;
(C) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three-month period and such property was received as
security therefor simultaneously with the creation thereof, and if the
Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to believe
that a default, as defined in Subsection (c) of this Section 613, would
occur within three months; or
(D) to receive payment on any claim referred to in paragraph
(B) or (C), against the release of any property held as security for
such claim as provided in paragraph (B) or (C), as the case may be, to
the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such three-month period for property held as
security at the time of such substitution shall, to the extent of the fair value
of the property released, have the same status as the property released, and, to
the extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and
property held in such special account and the proceeds thereof shall be
apportioned among the Trustee, the Holders and the holders of other indenture
securities in such manner that the Trustee, the Holders and the holders of other
indenture securities realize, as a result of payments from such special account
and payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law, the same percentage of their respective
claims, figured before crediting to the claim of the Trustee anything on account
of the receipt by it from the Company of the funds and property in such special
account and before crediting to the respective claims of the Trustee and the
Holders and the holders of other indenture securities dividends on claims filed
against the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable State law,
but after crediting thereon receipts on account of the Indebtedness represented
by their respective claims from all sources other than from such dividends and
from the funds and property so held in such special account. As used in this
paragraph, with respect to any claim, the term "dividends" shall include any
distribution with respect to such claim, in bankruptcy or receivership or
proceedings for reorganization pursuant to the Federal Bankruptcy Act or
applicable State law, whether such distribution is made in cash, securities or
other property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership or proceedings for reorganization is pending shall have
jurisdiction (i) to apportion among the Trustee, the Holders and the holders of
other indenture securities, in accordance with the provisions of this paragraph,
the funds and property held in such special account and proceeds thereof, or
(ii) in lieu of such apportionment, in whole or in part, to give to the
provisions of this paragraph due consideration in determining the fairness of
the distributions to be made to the Trustee and the Holders and the holders of
other indenture securities with respect to their respective claims, in which
event it shall not be necessary to liquidate or to appraise the value of any
securities or other property held in such special account or as security for any
such claim, or to make a specific allocation of such distributions as between
the secured and unsecured portions of such claims, or otherwise to apply the
provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the
beginning of such three-month period shall be subject to the provisions of this
Subsection as though such resignation or removal had not occurred. If any
Trustee has resigned or been removed prior to the beginning of such three-month
period, it shall be subject to the provisions of this Subsection if and only if
the following conditions exist:
(i) the receipt of property or reduction of claim, which would
have given rise to the obligation to account, if such Trustee had
continued as Trustee, occurred after the beginning of such three-month
period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection
(a) of this Section 613 a creditor relationship arising from:
(1) the ownership or acquisition of securities issued
under any indenture, or any security or securities having a
maturity of one year or more at the time of acquisition by the
Trustee;
(2) advances authorized by a receivership or
bankruptcy court of competent jurisdiction or by this
Indenture, for the purpose of preserving any property which
shall at any time be subject to the lien of this Indenture or
of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advances and of the circumstances
surrounding the making thereof is given to the Holders at the
time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of
business in the capacity of trustee under an indenture,
transfer agent, registrar, custodian, paying agent, fiscal
agent or depository, or other similar capacity;
(4) an Indebtedness created as a result of services
rendered or premises rented; or an Indebtedness created as a
result of goods or securities sold in a cash transaction, as
defined in Subsection (c) of this Section 613;
(5) the ownership of stock or of other securities of
a corporation organized under the provisions of Section 25(a)
of the Federal Reserve Act, as amended, which is directly or
indirectly a creditor of the Company; and
(6) the acquisition, ownership, acceptance or
negotiation of any drafts, bills of exchange, acceptances or
obligations which fall within the classification of
self-liquidating paper, as defined in Subsection (c) of this
Section 613.
(c) For the purposes of this Section 613 only:
(1) the term "default" means any failure to make
payment in full of the principal of or interest on any of the
Securities or upon the other indenture securities when and as
such principal or interest becomes due and payable;
(2) the term "other indenture securities" means
securities upon which the Company is an obligor (as defined in
the Trust Indenture Act) outstanding under any other indenture
(i) under which the Trustee is also trustee, (ii) which
contains provisions substantially similar to the provisions of
this Section 613, and (iii) under which a default exists at
the time of the apportionment of the funds and property held
in such special account;
(3) the term "cash transaction" means any transaction
in which full payment for goods or securities sold is made
within seven days after delivery of the goods or securities in
currency or in checks or other orders drawn upon banks or
bankers and payable upon demand;
(4) the term "self-liquidating paper" means any
draft, bill of exchange, acceptance or obligation which is
made, drawn, negotiated or incurred by the Company for the
purpose of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to, possession
of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods,
wares or merchandise previously constituting the security,
provided the security is received by the Trustee
simultaneously with the creation of the creditor relationship
with the Company arising from the making, drawing, negotiating
or incurring of the draft, bill of exchange, acceptance or
obligation;
(5) the term "Company" means any obligor upon the
Securities; and
(6) the term "Federal Bankruptcy Act" means the
Bankruptcy Code or Title 11 of the United States Code.
SECTION 614. Authenticating Agents.
From time to time the Company, in its sole discretion, may
appoint one or more Authenticating Agents with respect to one or more series of
Securities with power to act on the Trustee's behalf and subject to its
direction in the authentication and delivery of Securities of such series or in
connection with transfers and exchanges under Sections 304, 305, 306, and 1107
hereof as fully to all intents and purposes as though the Authenticating Agent
had been expressly authorized by those Sections of this Indenture to
authenticate and deliver Securities of such series. For all purposes of this
Indenture, the authentication and delivery of Securities by an Authenticating
Agent pursuant to this Section 614 shall be deemed to be authentication and
delivery of such Securities "by the Trustee". Each such Authenticating Agent
must at all times be a corporation organized and doing business under the laws
of the United States, any State thereof or the District of Columbia, authorized
under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least $50,000,000 and subject to supervision or examination by
Federal, State or District of Columbia authority. If such corporation publishes
reports of condition at least annually pursuant to law or the requirements of
such authority, then for the purposes of this Section 614 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 an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section 614, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section 614.
Any corporation into which any Authenticating Agent may be
merged or with which it may be consolidated, or any corporation resulting from
any merger or consolidation or to which any Authenticating Agent shall be a
party, or any corporation succeeding to the corporate trust business of any
Authenticating Agent, shall be the successor of the Authenticating Agent
hereunder, if such successor corporation is otherwise eligible under this
Section 614, without the execution or filing of any paper or any further act on
the part of the parties hereto or the Authenticating Agent or such successor
corporation.
An Authenticating Agent may resign at any time by giving
written notice of resignation to the Trustee and to the Company. The Company may
at any time terminate the agency of any Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the Trustee. Upon
receiving such a notice of resignation or upon such a termination, or in case at
any time any Authenticating Agent shall cease to be eligible under this Section
614, the Company may appoint a successor Authenticating Agent and shall mail
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve, as the names and
addresses of such Holders appear on the Security Register. Any successor
Authenticating Agent, upon acceptance of its appointment hereunder, shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section 614.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section 614,
and the Trustee shall be entitled to be reimbursed for such payments pursuant to
Section 607 hereof.
If an appointment with respect to one or more series of
Securities is made pursuant to this Section 614, the Securities of such series
may have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
Dated: _______________ __________________________________
As Trustee
_________________________________
As Authenticating Agent
__________________________________
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the
Trustee with respect to the Securities of each series
(a) semi-annually, not later than 15 days after each Regular
Record Date, or, in the case of any series of Securities on which
semi-annual interest is not payable, not more than 15 days after such
semi-annual dates as may be specified by the Trustee, a list, in such
form as the Trustee may reasonably require, of the names and addresses
of the Holders as of such Regular Record Date or semi-annual date, as
the case may be, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
provided, however, that if and so long as the Trustee is Security Registrar for
any series of Securities, no such list shall be required to be furnished with
respect to any such series.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 701 hereof and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as provided
in Section 701 hereof upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders with respect
to their rights under this Indenture or under the Securities and is accompanied
by a copy of the form of proxy or other communication which such applicants
propose to transmit, then the Trustee shall, within five business days after the
receipt of such application, at its election, either
(i) afford such applicants access to the information preserved
at the time by the Trustee in accordance with Section 702(a) hereof, or
(ii) inform such applicants as to the approximate number of
Holders whose names and addresses appear in the information preserved
at the time by the Trustee in accordance with Section 702(a) hereof,
and as to the approximate cost of mailing to such Holders the form of
proxy or other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder whose name and address appear in the information
preserved at the time by the Trustee in accordance with Section 702(a) hereof a
copy of the form of proxy or other communication which is specified in such
request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender the
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interest of the Holders or would be in violation of applicable law. Such written
statement shall specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the written statement
so filed, shall enter an order refusing to sustain any of such objections or if,
after the entry of an order sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for hearing, that all the
objections so sustained have been met and shall enter an order so declaring, the
Trustee shall mail copies of such material to all such Holders with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 702(b) hereof, regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 702(b) hereof.
SECTION 703. Reports by Trustee.
(a) Within 60 days after the first May 15 which occurs not
less than 60 days following the first date of issuance of Securities of any
series under this Indenture and within 60 days after May 15 in every year
thereafter, the Trustee shall transmit by mail to all Holders, as their names
and addresses appear in the Security Register, a brief report dated as of such
May 15 with respect to any of the following events which may have occurred
within the previous 12 months (but if no such event has occurred within such
period no report need be transmitted):
(1) any change to its eligibility under Section 609 hereof and
its qualifications under Section 608 hereof;
(2) the creation of or any material change to a relationship
specified in Section 608 hereof;
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report, and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities, on any
property or funds held or collected by it as Trustee, except that the
Trustee shall not be required (but may elect) to report such advances
if such advances so remaining unpaid aggregate not more than 1/2 of 1%
of the principal amount of the Securities Outstanding on the date of
such report;
(4) any change to the amount, interest rate and maturity date
of all other Indebtedness owing by the Company (or by any other obligor
on the Securities) to the Trustee in its individual capacity, on the
date of such report, with a brief description of any property held as
collateral security therefor, except an Indebtedness based upon a
creditor relationship arising in any manner described in Sections
613(b)(2), (3), (4) or (6) hereof;
(5) any change to the property and funds, if any, physically
in the possession of the Trustee as such on the date of such report;
(6) any release, or release and substitution, of property
subject to the lien of this Indenture, if any (and the consideration
therefor, if any) which it has not previously reported;
(7) any additional issue of Securities which the Trustee has
not previously reported; and
(8) any action taken by the Trustee in the performance of its
duties hereunder which it has not previously reported and which in its
opinion materially affects the Securities, except action in respect of
a default, notice of which has been or is to be withheld by the Trustee
in accordance with Section 602 hereof.
(b) The Trustee shall transmit by mail to all Holders, as
their names and addresses appear in the Security Register, a brief report with
respect to (1) the release, or release and substitution, of property subject to
the lien of this Indenture (and the consideration therefor, if any) unless the
fair value of such property, is less than 10% of the principal amount of
Securities outstanding at the time of such release, or release and substitution,
and (2) the character and amount of any advances (and if the Trustee elects so
to state, the circumstances surrounding the making thereof) made by the Trustee
(as such) since the date of the last report transmitted pursuant to Subsection
(a) of this Section 703 (or if no such report has yet been so transmitted, since
the date of execution of this instrument) for the reimbursement of which it
claims or may claim a lien or charge, prior to that of the Securities, on
property or funds held or collected by it as Trustee and which it has not
previously reported pursuant to this Subsection, except that the Trustee shall
not be required (but may elect) to report such advances if such advances
remaining unpaid at any time aggregate 10% or less of the principal amount of
the Securities Outstanding at such time, such report to be transmitted within 90
days after such time.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each national securities
exchange upon which any Securities are listed, with the Commission and with the
Company. The Company will promptly notify the Trustee when any Securities are
listed on any national securities exchange or of any delisting thereof.
SECTION 704. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not required
to file information, documents or reports pursuant to either of said
Sections, then it shall file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations; and
(3) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, within 30 days after the
filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section 704 as may be required by rules
and regulations prescribed from time to time by the Commission.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, SALE OR TRANSFER
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
Unless otherwise provided in an indenture supplemental
hereto, the Company shall not consolidate with or merge into any other Person or
convey, sell or otherwise transfer its properties and assets substantially as an
entirety to any Person, unless the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance, sale or
transfer the properties and assets of the Company substantially as an entirety
is a Person (other than a natural person) organized and existing under the laws
of the United States of America, any State thereof or the District of Columbia,
and shall expressly assume by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if any) and interest, if any,
on all the Securities and the performance of every covenant of this Indenture on
the part of the Company to be performed or observed.
SECTION 802. Successor [Corporation] Person to be Substituted.
Upon any consolidation by the Company with or merger by the
Company into any other [corporation] Person or any conveyance, sale or transfer
of the properties and assets of the Company substantially as an entirety in
accordance with Section 801 hereof, the successor [corporation] Person formed by
such consolidation or into which the Company is merged or to which such
conveyance, sale or transfer is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture with
the same effect as if such successor [corporation] Person had been named as the
Company herein, and thereafter the predecessor corporation shall be relieved of
all obligations and covenants under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(1) to evidence the succession of another [corporation] Person
to the Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities;
(2) to add to the covenants of the Company, or to surrender
any right or power herein conferred upon the Company, for the benefit
of the Holders of all or any series of Securities (and if such
covenants, or the surrender of such rights or powers, are to be for the
benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company;
(3) to add any additional Events of Default;
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or
to facilitate the issuance of Securities in uncertificated form, or to
permit or facilitate the issuance of extendible or remarketed
Securities;
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only as to the Securities of any series created by such
supplemental indenture and Securities of any series subsequently
created to which such change or elimination is made applicable by the
subsequent supplemental indenture creating such series;
(6) to secure the Securities;
(7) to establish the form or terms of Securities of any series
as permitted by Sections 201 and 301 hereof;
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b) hereof;
(9) to provide for any rights of the Holders of Securities of
any series to require the repurchase of Securities of such series by
the Company;
(10) to cure any ambiguity or defect, to correct or supplement
any provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture or the Securities or make any
other changes herein or therein, provided such action shall not
adversely affect the interests of the Holders of Securities of any
series in any material respect;
(11) to add to this Indenture such provisions as may be
expressly permitted by the Trust Indenture Act, excluding, however, the
provisions referred to in Section 316(a)(2) of the Trust Indenture Act
as in effect at the date as of which this instrument was executed or
any corresponding provision in any similar Federal statute hereafter
enacted; or
(12) to modify, alter, amend or supplement this Indenture in
any other respect which is not materially adverse to Holders, which
does not involve a change described in clauses (1), (2) or (3) of
Section 902 hereof.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all series affected by such
supplemental indenture (voting as one class), by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by or pursuant to a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest, if any, on, any Security, or
reduce the principal amount thereof or the rate of interest thereon or
any premium payable upon the redemption thereof, or reduce the amount
of the principal of an Original Issue Discount Security that would be
due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502 hereof, or change any Place of Payment
where, or the coin or currency in which, any Security or any premium or
the interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption or repayment at the option of
the Holder, on or after the Redemption Date or Repayment Date,
respectively),
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences, or the declaration of certain defaults hereunder,
provided for in this Indenture, or
(3) modify any of the provisions of this Section 902 or
Section 513 hereof, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby, provided, however, that this
clause shall not be deemed to require the consent of any Holder with
respect to changes in the references to "the Trustee" and concomitant
changes in this Section 902, or the deletion of this proviso, in
accordance with the requirements of Sections 611(b) and 901(8) hereof.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary under this Section 902 that the
particular form of any proposed supplemental indenture be approved by an Act,
provided that the substance of such proposed supplemental indenture shall have
been approved.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 601 hereof) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company so
determines, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay the principal of (and
premium, if any) and interest, if any, on the Securities of that series in
accordance with the terms of the Securities of such series and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any
series of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and, in such event, the Trustee shall act
as the Company's agent to receive all such presentations, surrenders, notices
and demands.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities of any series for
such purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company at any time acts as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest, if any, on any of the Securities
of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and premium, if any) or
interest, if any, so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company has one or more Paying Agents for any
series of Securities, it will, no later than 11:00 a.m., New York time, on or
prior to each due date of the principal of (and premium, if any) or interest, if
any, on any Securities of that series, deposit with a Paying Agent a sum in
immediately available funds sufficient to pay the principal (and premium, if
any) or interest so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal, premium or interest, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section 1003, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest, if any, on Securities of that
series in trust for the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise disposed of as
herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of
any payment of principal (and premium, if any) or interest, if any, on
the Securities of that series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
The Company initially authorizes the Trustee to act as Paying
Agent for the Securities on its behalf. The Company may at any time and from
time to time authorize one or more Persons to act as Paying Agent in addition to
or in place of the Trustee with respect to any series of Securities issued under
this Indenture.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest, if any, on any Security of any series and
remaining unclaimed for two years after such principal (and premium, if any) or
interest has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, shall at the written request and expense of the Company cause to be
published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 1004. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence and will use its best efforts to do or cause to be done all
things necessary to preserve and keep in full force and effect its rights
(charter and statutory) and franchises; provided, however, that the Company
shall not be required to preserve any such right or franchise if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company.
SECTION 1005. Maintenance of Properties.
The Company will cause all tangible properties used or useful
in the conduct of its business or the business of any Subsidiary to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section 1005 shall prevent the Company
from discontinuing the operation or maintenance of any of such properties if
such discontinuance is, in the judgment of the Company, desirable in the conduct
of its business or the business of any Subsidiary.
SECTION 1006. Maintenance of Insurance.
The Company will maintain, and will cause each of its
Subsidiaries to maintain, with insurers the Company reasonably believes to be
financially sound and reputable, insurance deemed adequate by the Company with
respect to its properties and business and the properties and business of its
Subsidiaries against loss or damage of the kinds customarily insured against by
corporations in the same or similar business. Such insurance may be subject to
co-insurance, deductibility or similar clauses which, in effect, result in
self-insurance of certain losses, provided that such self-insurance is in accord
with the practices of corporations in the same or similar business and adequate
insurance reserves are maintained in connection with such self-insurance.
SECTION 1007. Limitation on Liens.
(a) Nothing in this Indenture or in the Securities shall in
any way restrict or prevent the Company or any Subsidiary from incurring any
Indebtedness; provided that if this covenant shall be made applicable to the
Securities of a particular series, the Company covenants and agrees that it will
not, nor will it permit any Subsidiary to, issue, assume or guarantee any
Indebtedness secured by a Lien upon any property or assets of the Company or any
Subsidiary, respectively, without effectively providing that the Outstanding
Securities to which this section shall have been made applicable (together with,
if the Company so determines, any other Indebtedness then existing or thereafter
created ranking equally with the Securities) shall be secured equally and
ratably with (or prior to) such Indebtedness so long as such Indebtedness shall
be so secured (provided, that for the purpose of providing such equal and
ratable security, the principal amount of Outstanding Securities of any series
of Original Issue Discount Securities shall be such portion of the principal
amount as may be specified in the terms of that series).
The limitation in the preceding paragraph shall not apply to
Indebtedness secured by:
(i) Liens in existence on the date of original issue of the
Securities of any series to which this restriction is made applicable;
(ii) Liens created solely for the purpose of securing
Indebtedness incurred to finance, refinance or refund the purchase
price or cost (including the cost of construction) of property or
assets acquired after the date hereof (by purchase, construction or
otherwise), or Liens in favor of guarantors of obligations or
Indebtedness representing, or incurred to finance, refinance or refund,
such purchase price or cost, provided that no such Lien shall extend to
or cover any property or assets other than the property or assets so
acquired and improvements thereon and the proceeds thereof (other than,
in the case of Liens securing Indebtedness incurred to finance
construction or improvement costs, any theretofore unimproved real
property on which the property so constructed, or the improvement, is
located);
(iii) Liens which secure only Indebtedness owing by a
Subsidiary to the Company, to one or more Subsidiaries or to the
Company and one or more Subsidiaries;
(iv) Liens on any property or assets acquired from a Person
which is merged with or into the Company or any Subsidiary, or any
Liens on the property or assets of any corporation or other entity
existing at the time such corporation or other entity becomes a
Subsidiary and, in either such case, is not created as a result of or
in connection with or in anticipation of any such transaction (unless
such Lien was created to secure or provide for the payment of any part
of the purchase price of such Person);
(v) any Lien on any property, shares of capital stock,
Indebtedness or assets existing at the time of acquisition thereof and
which is not created as a result of or in connection with or in
anticipation of such acquisition (unless such Lien was created to
secure or provide for the payment of any part of the purchase price of
such property, shares of capital stock, Indebtedness or assets);
(vi) Liens on any property or assets acquired, constructed or
improved by the Company or any Subsidiary after the date of this
Indenture which are created or assumed contemporaneously with such
acquisition, construction or improvement, or within 180 days after the
completion thereof, to secure or provide for the payment of all or any
part of the cost of such acquisition, construction or improvement
(including related expenditures capitalized for Federal income tax
purposes in connection therewith) incurred after the date of this
Indenture; or
(vii) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any Lien
referred to in the foregoing clauses (i) through (vi) or of any
Indebtedness secured thereby, provided that the principal amount of
Indebtedness so secured thereby shall not exceed the principal amount
of Indebtedness so secured at the time of such extension, renewal or
replacement, and that such extension, renewal or replacement Lien shall
be limited to all or part of substantially the same property which
secured the Lien extended, renewed or replaced (plus improvements on or
additions to such property).
(b) Notwithstanding Section 1007(a), the Company and one or
more Subsidiaries may issue, assume or guarantee Indebtedness secured by Liens
which would otherwise be subject to the foregoing restrictions in an aggregate
principal amount which, together with the aggregate outstanding principal amount
of all other Indebtedness of the Company and its Subsidiaries which would
otherwise be subject to the foregoing restrictions (not including Indebtedness
permitted to be secured under clauses (i) through (vi)) hereof does not at the
time of issuance, assumption, or guarantee thereof exceed 20% of Net Tangible
Assets.
(c) The following types of transactions, among others, shall
not be deemed to create Indebtedness secured by Liens:
(i) Liens in favor of the United States of America or any
State thereof, or any department, agency or instrumentality or
political subdivision of the United States of America or any State
thereof or political entity affiliated therewith, or other obligations,
pursuant to any contract or statute or to secure any Indebtedness
incurred for the purpose of financing all or any part of the cost of
acquiring, constructing or improving the property subject to such Liens
(including Liens incurred in connection with pollution control,
industrial revenue or similar financings);
(ii) Liens imposed by law, such as mechanics', workmen's,
repairmen's, materialmen's, carriers', warehousemen's, vendors' or
other similar liens arising in the ordinary course of business, or
pledges or deposits to obtain the release of any of the foregoing, or
Liens required by any contract or statute in order to permit the
Company or a Subsidiary to perform any contract or subcontract made by
it with or at the request of a governmental entity (federal, state or
municipal) or any department, agency or instrumentality thereof, or to
secure partial, progress, advance or any other payments to the Company
or any Subsidiary by a governmental entity (federal, state or
municipal) or any department, agency or instrumentality thereof
pursuant to the provisions of any contract or statute;
(iii) pledges or deposits under workmen's compensation laws or
similar legislation and Liens of judgments thereunder which are not
currently dischargeable, or good faith deposits in connection with
bids, tenders, contracts (other than for the payment of money) or
leases to which the Company or any Subsidiary is a party, or deposits
to secure public or statutory obligations of the Company or any
Subsidiary, or deposits in connection with obtaining or maintaining
self-insurance or to obtain the benefits of any law, regulation or
arrangement pertaining to unemployment insurance, old age pensions,
social security or similar matters, or deposits of cash or obligations
of the United States of America to secure surety, appeal or customs
bonds to which the Company or any Subsidiary is a party, or deposits in
litigation or other proceedings such as, but not limited to,
interpleader proceedings;
(iv) Liens created by or resulting from any litigation or
other proceeding which is being contested in good faith by appropriate
proceedings, including Liens arising out of judgments or awards against
the Company or any Subsidiary with respect to which the Company or such
Subsidiary is in good faith prosecuting an appeal or proceedings for
review; or Liens incurred by the Company or any Subsidiary for the
purpose of obtaining a stay or discharge in the course of any
litigation or other proceeding to which the Company or such Subsidiary
is a party;
(v) Liens for taxes or assessments or governmental charges or
levies not yet due or delinquent, or which can thereafter be paid
without penalty, or which are being contested in good faith by
appropriate proceedings;
(vi) Liens consisting of easements, rights-of-way, zoning
restrictions, restrictions on the use of real property, and defects and
irregularities in the title thereto, landlords' liens and other similar
liens and encumbrances none of which interfere materially with the use
of the property or assets covered thereby in the ordinary course of the
business of the Company or such Subsidiary and which do not, in the
reasonable opinion of the Company, materially detract from the value of
such properties; and
(vii) Liens on any property created, assumed or otherwise
brought into existence in contemplation of the sale or other
disposition of the property subject to such Liens, whether directly or
indirectly, by way of share disposition or otherwise; provided that 180
days from the creation of such Liens the Company must have disposed of
such property and any Indebtedness secured by such Liens shall be
without recourse to the Company or any Subsidiary, and
(viii) Liens created in connection with financings under
Chapter 39, Subchapter 6 of the Texas Public Utility Regulatory Act or
any analogous law of a state other than the State of Texas.
SECTION 1008. Statement by Officers as to Default.
The Company will deliver to the Trustee on or before May 15 in
each year, a certificate of the Company's principal executive officer, principal
financial officer or principal accounting officer stating that in the course of
the performance by each signer of his duties as an officer of the Company he
would normally have knowledge of any default by the Company in the performance
and observance of any of the covenants contained in Sections 1001 to 1007
hereof, stating whether or not he has knowledge of any such default and, if so,
specifying each such default of which such signer has knowledge and the nature
thereof.
SECTION 1009. Defeasance of Certain Obligations.
The Company may omit to comply with any term, provision or
condition set forth in Section 801 or in Sections 1004 to 1007, inclusive,
hereof with respect to the Securities of any series, provided that the following
conditions shall have been satisfied:
(1) the Company has deposited or caused to be irrevocably
deposited (except as provided in Section 402(c) hereof and the last
paragraph of Section 1003 hereof) with the Trustee (specifying that
each deposit is pursuant to this Section 1009) as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of the Securities of such series, (i) money in
the currency or units of currency in which such Securities are payable
in an amount, or (ii) (except as provided in a supplemental indenture
with respect to such series) if Securities of such series are not
subject to repurchase at the option of Holders, (A) U.S. Government
Obligations which through the payment of interest and principal in
respect thereof in accordance with their terms will provide not later
than one day before the due date of any payment referred to in clause
(x) or (y) of this subparagraph (1) money in an amount, or (B) a
combination thereof, in each case sufficient, in the report of a
nationally recognized firm of independent certified public accountants
expressed in a written certification thereof delivered to the Trustee,
to pay and discharge, and which the Trustee shall be instructed to
apply to pay and discharge, (x) the principal of (and premium, if any)
and each installment of principal (and premium, if any) and interest,
if any, on the Outstanding Securities of such series on the Stated
Maturity of such principal or installment of principal or interest or
to and including the Redemption Date irrevocably designated by the
Company pursuant to subparagraph (4) of this Section 1009 and (y) any
mandatory sinking fund payments applicable to the Securities of such
series on the day on which payments are due and payable in accordance
with the terms of the Indenture and of the Securities of such series;
(2) no Event of Default or event which with notice or lapse of
time would become an Event of Default (including by reason of such
deposit) with respect to the Securities of such series shall have
occurred and be continuing on the date of such deposit;
(3) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect (i) that Holders of the Securities of such
series will not recognize income, gain, loss or expense for Federal
income tax purposes as a result of such deposit and defeasance of
certain obligations and will take into account all items of income,
gain, loss or expense with respect to the Securities at the same time
and in the same manner as if such deposit and defeasance had not taken
place; (ii) that such provision would not cause any outstanding
Securities of such series then listed on any national securities
exchange to be delisted as a result thereof; and (iii) that the
defeasance trust is not, or is registered as, an investment company
under the Investment Company Act of 1940;
(4) if the Company has deposited or caused to be deposited
money or U.S. Government Obligations to pay or discharge the principal
of (and premium, if any) and interest, if any, on the Outstanding
Securities of a series to and including a Redemption Date on which all
of the Outstanding Securities of such series are to be redeemed, such
Redemption Date shall be irrevocably designated by a Board Resolution
delivered to the Trustee on or prior to the date of deposit of such
money or U.S. Government Obligations, and such Board Resolution shall
be accompanied by an irrevocable Company Request that the Trustee give
notice of such redemption in the name and at the expense of the Company
not less than 30 nor more than 60 days prior to such Redemption Date in
accordance with Section 1104 hereof; and
(5) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of the Securities have been complied with.
SECTION 1010. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in Section 801 or in Sections 1004 to
1007, inclusive, hereof, with respect to the Securities of any series if before
the time for such compliance the Holders of at least a majority in aggregate
principal amount of the Outstanding Securities of such series shall, by Act of
such Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
SECTION 1011. Further Assurances.
The Company shall, at its own cost and expense, execute and
deliver to the Trustee all such other documents, instruments and agreements and
do all such other acts and things as may be reasonably required, in the opinion
of the Trustee, to enable the Trustee to exercise and enforce its rights under
this Indenture and under the documents, instruments and agreements required
under this Indenture and to carry out the intent of this Indenture.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by Section 301 hereof for Securities of
any series) in accordance with this Article Eleven.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
authorized by a Board Resolution and evidenced by an Officers' Certificate. In
case of any redemption at the election of the Company of less than all the
Securities of any series, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities of such series to be redeemed. In the case of
any redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, or pursuant to an election by the Company which is subject to a
condition specified in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction or condition.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If any Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series.
Securities shall be excluded from eligibility for selection
for redemption if they are identified by registration and certificate number in
a written statement signed by an authorized officer of the Company and delivered
to the Security Registrar at least 60 days prior to the Redemption Date as being
owned of record and beneficially by, and not pledged or hypothecated by either
(a) the Company or (b) an entity specifically identified in such written
statement which is an Affiliate of the Company.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his address
appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be
redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such is the
case, and
(7) CUSIP numbers, if any.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or prior to 11:00 A.M., New York time, on any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003 hereof) an amount of money sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities which are to be redeemed
on that date (to the extent that such amounts are not already on deposit at such
time in accordance with the provisions of Sections 401, 403 or 1009 hereof).
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued and unpaid interest) such Securities shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance with said notice,
such Security shall be paid by the Company at the Redemption Price, together
with accrued and unpaid interest to the Redemption Date; provided, however, that
installments of interest whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section 307
hereof.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 1107. Securities Redeemed in Part.
Any Security (including any Global Security) which is to be
redeemed only in part shall be surrendered at a Place of Payment therefor (with,
if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing), and
the Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered; provided, that if a Global
Security is so surrendered, the new Global Security shall be in a denomination
equal to the unredeemed portion of the principal of the Global Security so
surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 301 hereof for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 1202 hereof. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
In lieu of making all or any part of any mandatory sinking
fund payment with respect to any series of Securities in cash, the Company may
at its option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Company or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Company and delivered to the Trustee for
cancellation pursuant to Section 309 hereof, (b) receive credit for optional
sinking fund payments (not previously so credited) made pursuant to this Section
1202, or (c) receive credit for Securities of such series (not previously so
credited) redeemed by the Company through any optional redemption provision
contained in the terms of such series. Securities so delivered or credited shall
be received or credited by the Trustee at the sinking fund Redemption Price
specified in such Securities.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying (a) the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, (b) whether or not
the Company intends to exercise its right, if any, to make an optional sinking
fund payment with respect to such series on the next ensuing sinking fund
payment date and, if so, the amount of such optional sinking fund payment, and
(c) the portion thereof, if any, which is to be satisfied by payment of cash and
the portion thereof, if any, which is to be satisfied by delivering and
crediting Securities of that series pursuant to Section 1202 hereof, and will
also deliver to the Trustee any Securities to be so delivered. Such written
statement shall be irrevocable and upon its receipt by the Trustee the Company
shall become unconditionally obligated to make all the cash payments or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. Failure of the Company, on or before any such 60th day, to deliver
such written statement and Securities specified in this paragraph, if any, shall
not constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Company (i) that the mandatory sinking fund payment
for such series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of such
series in respect therefor and (ii) that the Company will make no optional
sinking fund payment with respect to such series as provided in this Section
1203.
Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 hereof and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 1104 hereof. Such notice having
been duly given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Sections 1105, 1106 and 1107 hereof.
The Trustee shall not redeem or cause to be redeemed any
Security of a series with sinking fund moneys or mail any notice of redemption
of Securities of such series by operation of the sinking fund during the
continuance of a default in payment of interest with respect to Securities of
that series or an Event of Default with respect to the Securities of that series
except that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Company a sum
sufficient for such redemption. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such default or Event of Default,
shall occur, and any moneys thereafter paid into the sinking fund, shall, during
the continuance of such default or Event of Default, be deemed to have been
collected under Article Five and held for the payment of all such Securities. In
case such Event of Default shall have been waived as provided in Section 513
hereof or the default or Event of Default cured on or before the 60th day
preceding the sinking fund payment date, such moneys shall thereafter be applied
on the next succeeding sinking fund payment date in accordance with this Section
1203 to the redemption of such Securities.
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 1301. Counterparts.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
SOUTHWESTERN ELECTRIC POWER COMPANY
By______________________________
Name:
Title:
Attest:
- -----------------------
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By______________________________
Name:
Title:
Attest:
________________________
Name:
Title:
<PAGE>
STATE OF __________)
: ss.:
COUNTY OF ________)
On the ____ day of __________, 2000, before me personally came
_______________________, to me known, who, being by me duly sworn, did depose
and say that she is a ______________ of Southwestern Electric Power Company, one
of the corporations described in and which executed the foregoing instrument;
that he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his name thereto by
like authority.
__________________________
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK)
On the ____ day of ___________, 2000, before me personally
came ____________, to me known, who, being by me duly sworn, did depose and say
that he is a ______________ of The Bank of New York, a New York banking
corporation, one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he signed his
name thereto by like authority.
_______________________________
Exhibit 5
Milbank, Tweed, Hadley & McCloy LLP
1 Chase Manhattan Plaza
New York, New York 10005
February 4, 2000
Southwestern Electric Power Company
428 Travis Street
Shreveport, Louisiana 71156-0001
Re: Southwestern Electric Power Company
Senior Notes
Ladies and Gentlemen:
We are acting as special counsel for Southwestern Electric
Power Company, a Delaware corporation (the "Company"), in connection with the
proposed public offering from time to time of up to $250,000,000 aggregate
principal amount of the Company's Senior Notes (the "Senior Notes"), to be
issued in one or more series pursuant to a Senior Note Indenture (the "Senior
Note Indenture"), proposed to be entered into between the Company and The Bank
of New York, as amended by one or more Supplemental Indentures proposed to be
entered into in connection with the creation and issuance of each series of
Senior Notes (each, a "Supplemental Indenture"). In connection with the proposed
offering, the Company is filing a registration statement on Form S-3 (the
"Registration Statement") with the Securities and Exchange Commission for the
purpose of registering the Senior Notes under the Securities Act of 1933, as
amended, for sale pursuant to one or more underwriting or similar agreements
(each, an "Underwriting Agreement").
We have examined originals, or copies certified to our
satisfaction, of such corporate records of the Company, certificates of public
officials, certificates of officers and representatives of the Company and other
documents as we have deemed necessary as a basis for the opinions hereinafter
expressed. In our examination we have assumed the genuineness of all signatures
and the authenticity of all documents submitted to us as originals and the
conformity with the originals of all documents submitted to us as copies. As to
various questions of fact material to such opinions we have, when relevant facts
were not independently established, relied upon certifications by officers of
the Company and other appropriate persons and statements contained in the
Registration Statement.
Based on the foregoing, and having regard to legal
considerations which we deem relevant, we are of the opinion that when the
Senior Note Indenture is duly authorized, executed and delivered, and when the
Supplemental Indenture with respect to a series of Senior Notes has been duly
authorized, executed and delivered, and when the Senior Notes of such series
have been duly authorized, executed, authenticated and issued in accordance with
the terms of the Senior Note Indenture and the applicable Supplemental Indenture
and delivered against payment therefor in accordance with the terms of the
applicable Underwriting Agreement, the Senior Notes of such series will
constitute legal, valid and binding obligations of the Company, entitled to the
benefits of, and subject to the provisions of, the Senior Note Indenture and the
applicable Supplemental Indenture, except (a) as may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws of general
applicability affecting the enforcement of creditors' rights, and (b) that such
enforceability may be limited by the application of general principles of equity
(regardless of whether considered in a proceeding in equity or at law),
including without limitation (i) the possible unavailability of specific
performance, injunctive relief or any other equitable remedies and (ii) concepts
of materiality, reasonableness, good faith and fair dealing.
We do not express any opinion as to matters governed by any
laws other than the laws of the State of New York and the Federal laws of the
United States of America.
We hereby consent to the reference to us under the heading
"Legal Opinions" in the Prospectus constituting a part of the Registration
Statement and to the filing of this opinion as Exhibit 5 to the Registration
Statement.
Very truly yours,
/s/ Milbank, Tweed, Hadley & McCloy LLP
RBW/JMH
Exhibit 12.1
Southwestern Electric Power Company
Ratio of Earnings to Fixed Charges
For Years Ended December 31,
1999 1998 1997 1996 1995
-----------------------------------------------------
(thousands, except ratios)
Operating income $147,524 $150,787 $139,409 $138,083 $162,776
Adjustments:
Income taxes 55,343 62,595 44,396 32,931 41,131
Provision for deferred
income taxes (17,098) (11,850) (2,244) 2,849 6,287
Deferred investment tax
credits (4,565) (4,631) (4,662) (4,730) (4,786)
Charges for investments
and plant development
costs, net of tax -- -- (483) (21,815) --
Other income and
deductions (2,000) 1,115 3,578 312 178
Allowance for borrowed
and equity funds used
during construction 1,984 2,687 2,156 2,423 9,334
Interest portion of
financing leases 335 598 1,194 1,514 1,896
-----------------------------------------------------
Earnings $181,523 $201,301 $183,344 $151,567 $216,816
=====================================================
Fixed charges:
Interest on long-term debt $38,380 $39,233 $40,440 $44,066 $44,468
Distributions on Trust
Preferred Securities 8,662 8,662 5,582 -- --
Interest on short-term
debt and other 13,800 8,591 5,736 8,381 10,706
Interest portion of
financing leases 335 598 1,194 1,514 1,896
-----------------------------------------------------
Fixed charges $61,177 $57,084 $52,952 $53,961 $57,070
=====================================================
Ratio of earnings to fixed
charges 2.97 3.53 3.46 2.81 3.80
Exhibit 23 (a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of Southwestern Electric Power Company
on Form S-3 of our report dated February 12, 1999, incorporated by reference in
the Annual Report on Form 10-K of Southwestern Electric Power Company for the
year ended December 31, 1998, and to all references to our Firm included in or
made a part of this Prospectus.
/s/ ARTHUR ANDERSEN
Arthur Andersen
Dallas, Texas,
February 4, 2000
Exhibit 25
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
SOUTHWESTERN ELECTRIC POWER COMPANY
(Exact name of obligor as specified in its charter)
Delaware 72-0323455
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
428 Travis Street
Shreveport, Louisiana 71156-0001
(Address of principal executive offices) (Zip code)
Senior Notes
(Title of the indenture securities)
<PAGE>
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Name Address
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and
Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to
Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17
C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to
Form T-1 filed with Registration Statement No. 33-6215, Exhibits
1a and 1b to Form T-1 filed with Registration Statement No.
33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 26th day of January, 2000.
THE BANK OF NEW YORK
By: /s/ MICHAEL CULHANE
Name: MICHAEL CULHANE
Title: VICE PRESIDENT
<PAGE>
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business September 30,
1999, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depository
institutions:
Noninterest-bearing balances and currency and coin.. $6,394,412
Interest-bearing balances........................... 3,966,749
Securities:
Held-to-maturity securities......................... 805,227
Available-for-sale securities....................... 4,152,260
Federal funds sold and Securities purchased under
agreements to resell................................ 1,449,439
Loans and lease financing receivables:
Loans and leases, net of unearned
income............... 37,900,739
LESS: Allowance for loan and
lease losses............ 572,76
LESS: Allocated transfer risk
reserve........................11,754
Loans and leases, net of unearned income,
allowance, and reserve............................ 37,316,224
Trading Assets......................................... 1,646,634
Premises and fixed assets (including capitalized
leases)............................................. 678,439
Other real estate owned................................ 11,571
Investments in unconsolidated subsidiaries and
associated companies................................... 183,038
Customers' liability to this bank on acceptances
outstanding............................................ 349,282
Intangible assets...................................... 790,558
Other assets........................................... 2,498,658
Total assets........................................... $60,242,491
<PAGE>
Deposits:
In domestic offices................................. $26,030,231
Noninterest-bearing.......................11,348,986
Interest-bearing..........................14,681,245
In foreign offices, Edge and Agreement
subsidiaries, and IBFs............................ 18,530,950
Noninterest-bearing..........................156,624
Interest-bearing..........................18,374,326
Federal funds purchased and Securities sold under
agreements to repurchase............................ 2,094,678
Demand notes issued to the U.S.Treasury................ 232,459
Trading liabilities.................................... 2,081,462
Other borrowed money:
With remaining maturity of one year or less......... 863,201
With remaining maturity of more than one year
through three years............................... 449
With remaining maturity of more than three years.... 31,080
Bank's liability on acceptances executed and
outstanding......................................... 351,286
Subordinated notes and debentures...................... 1,308,000
Other liabilities...................................... 3,055,031
Total liabilities...................................... 54,578,827
EQUITY CAPITAL
Common stock........................................... 1,135,284
Surplus................................................ 815,314
Undivided profits and capital reserves................. 3,759,164
Net unrealized holding gains (losses) on
available-for-sale securities....................... ( 15,440)
Cumulative foreign currency translation adjustments.... ( 30,658)
Total equity capital................................... 5,663,664
Total liabilities and equity capital................... $60,242,491
<PAGE>
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Reyni
Alan R. Griffith Directors
Gerald L. Hassell
<TABLE> <S> <C>
<ARTICLE> UT
<CIK> 0000092487
<NAME> SOUTHWESTERN ELECTRIC POWER COMPANY
<SUBSIDIARY>
<NUMBER> 005
<NAME> SOUTHWESTERN ELECTRIC POWER COMPANY
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-END> DEC-31-1999
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 1,847,189
<OTHER-PROPERTY-AND-INVEST> 5,782
<TOTAL-CURRENT-ASSETS> 159,407
<TOTAL-DEFERRED-CHARGES> 4,974
<OTHER-ASSETS> 90,446
<TOTAL-ASSETS> 2,107,798
<COMMON> 135,660
<CAPITAL-SURPLUS-PAID-IN> 245,000
<RETAINED-EARNINGS> 288,018
<TOTAL-COMMON-STOCKHOLDERS-EQ> 668,678
0
4,706
<LONG-TERM-DEBT-NET> 605,973
<SHORT-TERM-NOTES> 140,897
<LONG-TERM-NOTES-PAYABLE> 0
<COMMERCIAL-PAPER-OBLIGATIONS> 0
<LONG-TERM-DEBT-CURRENT-PORT> 45,595
0
<CAPITAL-LEASE-OBLIGATIONS> 0
<LEASES-CURRENT> 0
<OTHER-ITEMS-CAPITAL-AND-LIAB> 641,949
<TOT-CAPITALIZATION-AND-LIAB> 2,107,798
<GROSS-OPERATING-REVENUE> 965,027
<INCOME-TAX-EXPENSE> 38,506
<OTHER-OPERATING-EXPENSES> 778,997
<TOTAL-OPERATING-EXPENSES> 817,503
<OPERATING-INCOME-LOSS> 147,524
<OTHER-INCOME-NET> (1,965)
<INCOME-BEFORE-INTEREST-EXPEN> 145,559
<TOTAL-INTEREST-EXPENSE> 58,893
<NET-INCOME> 83,655
229
<EARNINGS-AVAILABLE-FOR-COMM> 83,426
<COMMON-STOCK-DIVIDENDS> 96,000
<TOTAL-INTEREST-ON-BONDS> 38,380
<CASH-FLOW-OPERATIONS> 154,942
<EPS-BASIC> 0.00
<EPS-DILUTED> 0.00
</TABLE>
