EXHIBIT 4.2
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WPS RESOURCES CORPORATION
ISSUER
AND
STATE STREET BANK AND TRUST COMPANY
TRUSTEE
INDENTURE
DATED AS OF JULY 30, 1998
SUBORDINATED DEBT SECURITIES
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions of Terms . . . . . . . . . . . . . . . . 1
ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF DEBT SECURITIES
SECTION 2.1. Designation and Terms of Debt Securities . . . . . . 6
SECTION 2.2. Form of Debt Securities and Trustee's Certificate. . 8
SECTION 2.3. Denominations; Provisions for Payment. . . . . . . . 8
SECTION 2.4. Execution and Authentication . . . . . . . . . . . . 9
SECTION 2.5. Registration of Transfer and Exchange. . . . . . . . 10
SECTION 2.6. Temporary Securities . . . . . . . . . . . . . . . . 11
SECTION 2.7. Mutilated, Destroyed, Lost or Stolen Debt
Securities . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.8. Cancellation . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.9. Benefits of Indenture. . . . . . . . . . . . . . . . 12
SECTION 2.10. Authenticating Agent . . . . . . . . . . . . . . . . 13
SECTION 2.11. Global Securities. . . . . . . . . . . . . . . . . . 13
ARTICLE III
REDEMPTION OF DEBT SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.1. Redemption . . . . . . . . . . . . . . . . . . . . . 14
SECTION 3.2. Notice of Redemption . . . . . . . . . . . . . . . . 14
SECTION 3.3. Payment Upon Redemption. . . . . . . . . . . . . . . 15
SECTION 3.4. Sinking Fund . . . . . . . . . . . . . . . . . . . . 16
SECTION 3.5. Satisfaction of Sinking Fund Payments with Debt
Securities . . . . . . . . . . . . . . . . . . . . . 16
SECTION 3.6. Redemption of Debt Securities for Sinking Fund . . . 16
ARTICLE IV
COVENANTS OF THE COMPANY
SECTION 4.1. Payment of Principal, Premium and Interest . . . . . 17
SECTION 4.2. Maintenance of Office or Agency. . . . . . . . . . . 17
SECTION 4.3. Paying Agents. . . . . . . . . . . . . . . . . . . . 17
SECTION 4.4. Appointment to Fill Vacancy in Office of Trustee . . 18
SECTION 4.5. Compliance with Consolidation Provisions . . . . . . 18
SECTION 4.6. Limitation on Dividends. . . . . . . . . . . . . . . 18
SECTION 4.7. Covenants as to WPSR Trusts. . . . . . . . . . . . . 19
SECTION 4.8. Corporate Existence. . . . . . . . . . . . . . . . . 19
SECTION 4.9. Notice of Default. . . . . . . . . . . . . . . . . . 20
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ARTICLE V
SECURITYHOLDERS, LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 5.1. Company to Furnish Trustee Names and Addresses
of Securityholders . . . . . . . . . . . . . . . . . 20
SECTION 5.2. Preservation Of Information; Communications With
Securityholders. . . . . . . . . . . . . . . . . . . 20
SECTION 5.3. Reports By the Company . . . . . . . . . . . . . . . 20
SECTION 5.4. Reports by the Trustee . . . . . . . . . . . . . . . 21
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.1. Events of Default. . . . . . . . . . . . . . . . . . 21
SECTION 6.2. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . . 23
SECTION 6.3. Application of Moneys Collected. . . . . . . . . . . 24
SECTION 6.4. Limitation on Suits. . . . . . . . . . . . . . . . . 25
SECTION 6.5. Rights and Remedies Cumulative; Delay or Omission
Not Waiver . . . . . . . . . . . . . . . . . . . . . 25
SECTION 6.6. Control by Securityholders . . . . . . . . . . . . . 26
SECTION 6.7. Undertaking to Pay Costs . . . . . . . . . . . . . . 26
SECTION 6.8. Acknowledgement Regarding Trust Preferred
Securities . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.1. Certain Duties and Responsibilities of Trustee . . . 27
SECTION 7.2. Certain Rights of Trustee. . . . . . . . . . . . . . 28
SECTION 7.3. Trustee Not Responsible for Recitals or Issuance
of Debt. . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 7.4. May Hold Debt Securities . . . . . . . . . . . . . . 29
SECTION 7.5. Moneys Held in Trust . . . . . . . . . . . . . . . . 29
SECTION 7.6. Compensation and Reimbursement . . . . . . . . . . . 29
SECTION 7.7. Reliance on Officers' Certificate. . . . . . . . . . 30
SECTION 7.8. Qualification; Conflicting Interests . . . . . . . . 30
SECTION 7.9. Corporate Trustee Required; Eligibility. . . . . . . 30
SECTION 7.10. Resignation and Removal; Appointment of Successor. . 31
SECTION 7.11. Acceptance of Appointment By Successor . . . . . . . 32
SECTION 7.12. Merger, Conversion, Consolidation or Succession
to Business . . . . . . . . . . . . . . . . . . . . 33
SECTION 7.13. Preferential Collection of Claims Against the
Company . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
SECTION 8.1. Evidence of Action by Securityholders. . . . . . . . 33
SECTION 8.2. Proof of Execution by Securityholders. . . . . . . . 34
SECTION 8.3. Who May be Deemed Owners . . . . . . . . . . . . . . 34
SECTION 8.4. Certain Debt Securities Owned by Company
Disregarded . . . . . . . . . . . . . . . . . . . . 34
SECTION 8.5. Actions Binding on Future Securityholders. . . . . . 35
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ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures Without the Consent of
Securityholders . . . . . . . . . . . . . . . . . . 35
SECTION 9.2. Supplemental Indentures With Consent of
Securityholders . . . . . . . . . . . . . . . . . . 36
SECTION 9.3. Effect of Supplemental Indentures. . . . . . . . . . 36
SECTION 9.4. Debt Securities Affected by Supplemental
Indentures . . . . . . . . . . . . . . . . . . . . . 37
SECTION 9.5. Execution of Supplemental Indentures . . . . . . . . 37
ARTICLE X
SUCCESSOR CORPORATION
SECTION 10.1. Company May Consolidate, Etc . . . . . . . . . . . . 37
SECTION 10.2 Successor Corporation Substituted. . . . . . . . . . 38
SECTION 10.3 Evidence of Consolidation, Etc. to Trustee . . . . . 38
ARTICLE XI
SATISFACTION AND DISCHARGE
SECTION 11.1. Satisfaction and Discharge of Indenture. . . . . . . 39
SECTION 11.2. Discharge of Obligations . . . . . . . . . . . . . . 39
SECTION 11.3. Deposited Moneys to be Held In Trust . . . . . . . . 40
SECTION 11.4. Payment of Moneys Held by Paying Agents. . . . . . . 40
SECTION 11.5. Repayment to Company . . . . . . . . . . . . . . . . 40
ARTICLE XII
IMMUNITY OF INCORPORATORS, SHAREHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.1. No Recourse. . . . . . . . . . . . . . . . . . . . . 41
ARTICLE XIII
SUBORDINATION OF DEBT SECURITIES
SECTION 13.1. Agreement to Subordinate.. . . . . . . . . . . . . . 41
SECTION 13.2. Default on Senior Indebtedness.. . . . . . . . . . . 42
SECTION 13.3 Liquidation; Dissolution; Bankruptcy.. . . . . . . . 42
SECTION 13.4. Subrogation. . . . . . . . . . . . . . . . . . . . . 43
SECTION 13.5. Trustee to Effectuate Subordination. . . . . . . . . 44
SECTION 13.6. Notice by the Company. . . . . . . . . . . . . . . . 44
SECTION 13.7. Rights of the Trustee; Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . 45
SECTION 13.8. Subordination May Not Be Impaired. . . . . . . . . . 45
ARTICLE XIV
MISCELLANEOUS PROVISIONS
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SECTION 14.1. Effect on Successors and Assigns . . . . . . . . . . 46
SECTION 14.2. Actions by Successor . . . . . . . . . . . . . . . . 46
SECTION 14.3. Surrender of Company Powers. . . . . . . . . . . . . 46
SECTION 14.4. Notices. . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 14.5. Governing Law. . . . . . . . . . . . . . . . . . . . 46
SECTION 14.6. Treatment of the Debt Securities as Debt . . . . . . 46
SECTION 14.7. Compliance Certificates and Opinions.. . . . . . . . 47
SECTION 14.8. Payments on Business Days. . . . . . . . . . . . . . 47
SECTION 14.9. Conflict with Trust Indenture Act. . . . . . . . . . 47
SECTION 14.10. Counterparts.. . . . . . . . . . . . . . . . . . . . 47
SECTION 14.11. Separability.. . . . . . . . . . . . . . . . . . . . 47
SECTION 14.12. Assignment.. . . . . . . . . . . . . . . . . . . . . 48
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Section of
Trust Indenture Act Section of
of 1939, as amended Indenture
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310(a) . . . . . . . . . . . . . . . . . . . . . . . . . . .7.9
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . . .7.8
. . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
310(c) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . .7.13(a)
311(b) . . . . . . . . . . . . . . . . . . . . . . . . .7.13(b)
311(c) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1
. . . . . . . . . . . . . . . . . . . . . . . . . . 5.2(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . 5.2(b)
312(c) . . . . . . . . . . . . . . . . . . . . . . . . . 5.2(c)
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . 5.4(a)
313(b) . . . . . . . . . . . . . . . . . . . . . . . . . 5.4(b)
313(c) . . . . . . . . . . . . . . . . . . . . . . . . . 5.4(a)
. . . . . . . . . . . . . . . . . . . . . . . . . . 5.4(b)
313(d) . . . . . . . . . . . . . . . . . . . . . . . . . 5.4(c)
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . .5.3
314(b) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 14.6
314(d) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 14.6
314(f) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . 7.1(a)
. . . . . . . . . . . . . . . . . . . . . . . . . . . .7.2
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . .6.7
315(c) . . . . . . . . . . . . . . . . . . . . . . . . . . .7.1
315(d) . . . . . . . . . . . . . . . . . . . . . . . . . 7.1(b)
. . . . . . . . . . . . . . . . . . . . . . . . . . 7.1(c)
315(e) . . . . . . . . . . . . . . . . . . . . . . . . . . .6.7
316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . .6.6
. . . . . . . . . . . . . . . . . . . . . . . . . . . .8.4
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . .6.4
316(c) . . . . . . . . . . . . . . . . . . . . . . . . . . .8.1
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . . .6.2
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . . .4.3
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 14.8
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Note: This Cross-Reference Table shall not, for any purpose, be
deemed to be part of the Indenture and shall not have any
bearing on the interpretation of its terms or provisions.
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THIS INDENTURE, dated as of July 30, 1998, between WPS RESOURCES
CORPORATION, a Wisconsin corporation (the "Company"), and STATE STREET BANK
AND TRUST COMPANY, a Massachusetts trust company, not in its individual
capacity but solely 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 its unsecured
debentures, notes or other evidences of indebtedness (the "Debt Securities"),
to be issued in one or more series as provided in this Indenture.
This Indenture is subject to the provisions of the Trust Indenture Act of
1939, as amended, that are required to be part of this Indenture and shall, to
the extent applicable, be governed by such provisions. 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
Debt Securities by the holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all holders of the Debt Securities
or of any series thereof, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions of Terms.
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The terms defined in this Section (except as otherwise expressly
provided in this Indenture or unless the context otherwise requires) for all
purposes of this Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Section and shall include the
plural as well as the singular. All other terms used in this Indenture that
are defined in the Trust Indenture Act of 1939, as amended, or by reference
therein in the Securities Act of 1933, as amended (except as otherwise
expressly provided in this Indenture or unless the context otherwise
requires), shall have the meanings assigned to such terms in the Trust
Indenture Act and in the Securities Act as in force at the date of the
execution of this instrument.
"Administrative Trustees" shall have the meaning set forth in the
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Declaration.
"Affiliate" means, with respect to a specified Person, (a) any
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Person directly or indirectly owning, controlling or holding with power to
vote 10% or more of the outstanding voting securities or other ownership
interests of the specified Person, (b) any Person 10% or more of whose
outstanding voting securities or other ownership interests are directly or
indirectly owned, controlled or held with power to vote by the specified
Person, (c) any Person directly or indirectly controlling, controlled by or
under common control with the specified Person, (d) a partnership in which the
specified Person is a general partner, (e) any officer or director of the
specified Person and (f) if the specified Person is an individual, any entity
of which the specified Person is an officer, director or general partner.
"Authenticating Agent" means an authenticating agent with respect to
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all or any of the
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series of Debt Securities appointed with respect to all or such series of the
Debt Securities by the Trustee pursuant to Section 2.10.
"Bankruptcy Law" means ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, or any similar
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federal or state law for the relief of debtors.
"Board of Directors" means the board of directors of the Company, or
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any duly authorized committee of such board.
"Board Resolution" means a copy of a resolution certified by the
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Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors or by a duly constituted committee thereof and to be
in full force and effect on the date of such certification.
"Business Day" means, with respect to any series of Debt Securities,
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any day other than a day on which federal or state banking institutions in
New York, New York or Boston, Massachusetts are authorized or required by law,
executive order or regulation to close.
"Certificate" means a certificate signed by the principal executive
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officer, the principal financial officer, the treasurer or the principal
accounting officer of the Company. The Certificate need not comply with the
provisions of Section 14.7.
"Commission" means the United States Securities and Exchange
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Commission, or any successor agency thereto.
"Company" means WPS Resources Corporation, a corporation duly
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organized and existing under the laws of the State of Wisconsin, and, subject
to the provisions of Article X, shall also include its successors and assigns.
"Corporate Trust Office" means the office of the Trustee at which,
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at any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at Two International
Place, ▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
Corporate Trust Department.
"Custodian" means any receiver, trustee, assignee, liquidator, or
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similar official under any Bankruptcy Law.
"Debt Securities" means the Debt Securities authenticated and
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delivered under this Indenture.
"Declaration" means, with respect to a WPSR Trust, the amended and
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restated declaration of trust of such WPSR Trust or any other governing
instrument of such WPSR Trust.
"Default" means any event, act or condition that with notice or
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lapse of time, or both, would constitute an Event of Default.
"Defaulted Interest" has the meaning specified in Section 2.3.
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2
"Depositary" means, with respect to Debt Securities of any series
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for which the Company shall determine that such Debt Securities will be issued
as a Global Security, The Depository Trust Company, New York, New York,
another clearing agency, or any successor registered as a clearing agency
under the Exchange Act or other applicable statute or regulation, which, in
each case, shall be designated by the Company pursuant to either Section 2.1
or 2.11.
"Event of Default" means, with respect to Debt Securities of a
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particular series, any event specified in Section 6.1, continued for the
period of time, if any, therein designated.
"Exchange Act" means the Securities Exchange Act of 1934, as
------------
amended.
"Global Security" means, with respect to any series of Debt
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Securities, a Debt Security executed by the Company and delivered by the
Trustee to the Depositary or pursuant to the Depositary's instruction, all in
accordance with this Indenture, which shall be registered in the name of the
Depositary or its nominee.
"Governmental Obligations" means securities that are (i) direct
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obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America, the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America that, in either case,
are not callable or redeemable at the option of the issuer thereof, and shall
also include a depositary receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act) as custodian with respect to any such
Governmental Obligation or a specific payment of principal of or interest on
any such Governmental Obligation held by such custodian for the account of
the holder of such depositary receipt; provided, however, that (except as
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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 Governmental Obligation or the
specific payment of principal of or interest on the Governmental Obligation
evidenced by such depositary receipt.
"Guaranties" mean the Trust Preferred Securities Guaranty and the
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Trust Common Securities Guaranty.
"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.
"Indenture" means this instrument as originally executed or as it
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may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into in accordance with the terms hereof and shall
include the form and terms of particular series of Debt Securities established
as contemplated hereunder.
"Interest Payment Date", when used with respect to any installment
---------------------
of interest on a Debt Security of a particular series, means the date
specified in such Debt Security or in a Board Resolution and Officers'
Certificate or an indenture supplemental hereto with respect to such series as
the fixed date on which an installment of interest with respect to Debt
Securities of that series is due and payable.
"Officers' Certificate" means a certificate signed by the Chairman,
---------------------
President or any Vice President and by the Treasurer or an Assistant Treasurer
or the Controller or an Assistant Controller or the
3
Secretary or an Assistant Secretary of the Company that is delivered to the
Trustee in accordance with the terms hereof. Each such certificate shall
include the statements provided for in Section 14.7, if and to the extent
required by the provisions of such Section.
"Opinion of Counsel" means an opinion in writing of legal counsel,
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who may be an employee of or counsel for the Company, that is delivered to the
Trustee in accordance with the terms hereof. Each such opinion shall include
the statements provided for in Section 14.7, if and to the extent required by
the provisions of such Section.
"Outstanding", when used with reference to Debt Securities of any
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series, means, subject to the provisions of Section 8.4, as of any particular
time, all Debt Securities of that series theretofore authenticated and
delivered by the Trustee under this Indenture, except (a) Debt Securities
theretofore canceled by the Trustee or any paying agent, or delivered to the
Trustee or any paying agent for cancellation or that have previously been
canceled; (b) Debt Securities or portions thereof for the payment or
redemption of which moneys or Governmental Obligations in the necessary amount
shall have been deposited in trust with the Trustee or with any paying agent
(other than the Company) or shall have been set aside and segregated in trust
by the Company (if the Company shall act as its own paying agent); provided,
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however, that if such Debt Securities or portions of such Debt Securities are
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to be redeemed prior to the maturity thereof, notice of such redemption shall
have been given as provided in Section 3.2, or provision satisfactory to the
Trustee shall have been made for giving such notice; (c) Debt Securities in
lieu of or in substitution for which other Debt Securities shall have been
authenticated and delivered pursuant to the terms of Section 2.7; and (d) Debt
Securities, except to the extent provided in Sections 11.1 and 11.2, with
respect to which the Company has effected defeasance and/or covenant
defeasance as provided in Article XI.
"Person" means any individual, corporation, partnership, limited
------
liability company, joint venture, joint-stock company, unincorporated
organization or government or any agency or political subdivision thereof.
"Predecessor Security" of any particular Debt Security means every
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previous Debt Security evidencing all or a portion of the same debt and
guaranty as that evidenced by such particular Debt Security; and, for the
purposes of this definition, any Debt Security authenticated and delivered
under Section 2.7 in lieu of a lost, destroyed or stolen Debt Security shall
be deemed to evidence the same debt as the lost, destroyed or stolen Debt
Security.
"Property Trustee" has the meaning set forth in the Declaration of
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the applicable WPSR Trust.
"Responsible Officer," when used with respect to the Trustee, means
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the chairman or any vice-chairman of the board of directors, the president,
any vice-president, any assistant vice-president, the secretary, any assistant
secretary, the Treasurer, any assistant treasurer, any trust officer or
assistant trust officer or other officer of the Trustee customarily performing
functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with the particular
subject.
"Securities Act" means the Securities Act of 1933, as amended from
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time to time, or any successor legislation.
4
"Securityholder", "Holder of Debt Securities", "Registered Holder",
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or other similar term, means the Person or Persons in whose name or names a
particular Debt Security shall be registered on the books of the Company kept
for that purpose in accordance with the terms of this Indenture.
"Security Register" and "Security Registrar" have the respective
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meanings set forth in Section 2.5.
"Senior Indebtedness" means, with respect to the Company, (i) the
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principal, premium, if any, and interest in respect of (A) indebtedness of the
Company for money borrowed and (B) indebtedness evidenced by securities,
debentures, bonds or other similar instruments issued by the Company, (ii) all
capital lease obligations of the Company, (iii) all obligations of the Company
issued or assumed as the deferred purchase price of property, all conditional
sale obligations of the Company and all obligations of the Company under any
title retention agreement (but excluding trade accounts payable arising in the
ordinary course of business); (iv) all obligations of the Company for the
reimbursement on any letter of credit, banker's acceptance, security purchase
facility or similar credit transaction; (v) all obligations of the type
referred to in clauses (i) through (iv) of other Persons for the payment of
which the Company is responsible or liable as obligor, guarantor or otherwise,
and (vi) all obligations of the type referred to in clauses (i) through (v) of
other Persons secured by any lien on any property or asset of the Company
(whether or not such obligation is assumed by the Company); except in each
case for (1) any such indebtedness that is by its terms subordinated to or
pari passu with the Debt Securities, as the case may be, and (2) any
indebtedness from the Company to any Affiliate of the Company.
"Subsidiary" means, with respect to any Person, (i) any corporation
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at least a majority of whose outstanding Voting Stock shall at the time be
owned, directly or indirectly, by such Person or by one or more of its
Subsidiaries or by such Person and one or more of its Subsidiaries, (ii) any
general partnership, joint venture or similar entity, at least a majority of
whose outstanding partnership or similar interests shall at the time be owned
by such Person, or by one or more of its Subsidiaries, or by such Person and
one or more of its Subsidiaries and (iii) any limited partnership of which
such Person or any of its Subsidiaries is a general partner.
"Trustee" means State Street Bank and Trust Company and, subject to
-------
the provisions of Article VII, shall also include its successors and assigns,
and, if at any time there is more than one Person acting in such capacity
hereunder, "Trustee" shall mean each such Person. The term "Trustee," as used
with respect to a particular series of Debt Securities, shall mean the trustee
with respect to that series.
"Trust Common Securities" means undivided beneficial interests in
-----------------------
the assets of a WPSR Trust which rank pari passu with Trust Preferred
Securities issued by such WPSR Trust; provided, however, that upon the
-------- -------
occurrence of an Event of Default, the rights of holders of Trust Common
Securities to payment in respect of distributions and payments upon
liquidation, redemption and maturity are subordinated to the rights of holders
of Trust Preferred Securities.
"Trust Common Securities Guaranty" means any guaranty that the
--------------------------------
Company may enter into with State Street Bank and Trust Company or any other
Person or Persons that operates directly or indirectly for the benefit of
holders of Trust Common Securities of a WPSR Trust.
"Trust Indenture Act" means the Trust Indenture Act of 1939, subject
-------------------
to the provisions of
5
Sections 9.1, 9.2 and 10.1, as in effect at the date of execution of this
instrument.
"Trust Preferred Securities" means undivided beneficial interests in
--------------------------
the assets of a WPSR Trust which rank pari passu with Trust Common Securities
issued by such WPSR Trust; provided, however, that upon the occurrence of an
-------- -------
Event of Default, the rights of holders of Trust Common Securities to payment
in respect of distributions and payments upon liquidation, redemption and
otherwise are subordinated to the rights of holders of Trust Preferred
Securities.
"Trust Preferred Securities Guaranty" means any guaranty that the
-----------------------------------
Company may enter into with State Street Bank and Trust Company or any other
Person or Persons that operates directly or indirectly for the benefit of
holders of Trust Preferred Securities of a WPSR Trust.
"Trust Securities" means Trust Common Securities and Trust Preferred
----------------
Securities.
"Voting Stock", as applied to stock of any Person, means shares,
------------
interests, participations or other equivalents in the equity interest (however
designated) in such Person having ordinary voting power for the election of a
majority of the directors (or the equivalent) of such Person, other than
shares, interests, participations or other equivalents having such power only
by reason of the occurrence of a contingency.
"WPSR Trust" means WPSR Capital Trust I, a Delaware business trust,
----------
or any similar trust created for the purpose of issuing preferred securities
in connection with the issuance of Debt Securities under this Indenture.
ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF DEBT SECURITIES
SECTION 2.1. Designation and Terms of Debt Securities.
----------------------------------------
The aggregate principal amount of Debt Securities that may be
authenticated and delivered under this Indenture is unlimited. The Debt
Securities may be issued in one or more series up to the aggregate principal
amount of Debt Securities of that series from time to time authorized by or
pursuant to a Board Resolution of the Company, or pursuant to one or more
indentures supplemental hereto. Prior to the initial issuance of Debt
Securities of any series, there shall be established in or pursuant to a Board
Resolution of the Company, and set forth in an Officers' Certificate, or
established in one or more indentures supplemental hereto:
(a) the title of the series of Debt Security (which shall
distinguish the Debt Securities of that series from all other series of Debt
Securities);
(b) any limit upon the aggregate principal amount of the Debt
Securities of that series that may be authenticated and delivered under this
Indenture (except for Debt Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Debt
Securities of that series);
(c) the date or dates on which the principal of the Debt Securities
of that series is payable;
6
(d) the rate or rates at which the Debt Securities of that series
shall bear interest or the manner of calculation of such rate or rates, if
any;
(e) the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest will be payable or the manner of
determination of such Interest Payment Dates and the record date for the
determination of holders to whom interest is payable on any such Interest
Payment Dates;
(f) the right, if any, to defer the interest payment periods and
the duration of such extension;
(g) the period or periods within which, the price or prices at
which, and the terms and conditions upon which, Debt Securities of that series
may be redeemed, in whole or in part, at the option of the Company;
(h) the obligation, if any, of the Company to redeem or purchase
Debt Securities of that series pursuant to any sinking fund or analogous
provisions (including payments made in cash in participation of future sinking
fund obligations) or at the option of a holder thereof and the period or
periods within which, the price or prices at which, and the terms and
conditions upon which, Debt Securities of that series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(i) the form of the Debt Securities of that series, including the
form of the Certificate of Authentication for such series;
(j) if other than denominations of [one thousand U.S. dollars
($1,000)] or any integral multiple thereof, the denominations in which the
Debt Securities of that series shall be issuable;
(k) whether the Debt Securities are issuable as a Global Security
and, in such case, the identity of the Depositary for such series; and
(l) any and all other terms with respect to such series (which
terms shall not be inconsistent with the terms of this Indenture), including
any terms which may be required by or advisable under United States laws or
regulations or advisable in connection with the marketing of Debt Securities
of that series.
All Debt Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to any such Board Resolution or in any indentures supplemental
hereto.
If any of the terms of a series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of such series.
7
SECTION 2.2. Form of Debt Securities and Trustee's Certificate.
-------------------------------------------------
The Debt Securities of any series and the Trustee's certificate of
authentication to be borne by such Debt Securities shall be substantially of
the tenor and purport as set forth in one or more indentures supplemental
hereto or as provided in a Board Resolution and as set forth in an Officers'
Certificate, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the Company may deem appropriate and as
are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which Debt
Securities of that series may be listed, or to conform to usage.
SECTION 2.3. Denominations; Provisions for Payment.
-------------------------------------
The Debt Securities shall be issuable as registered Debt Securities
and in the denominations of one thousand U.S. dollars ($1,000) or any integral
multiple thereof, subject to Section 2.1(j). The Debt Securities of a
particular series shall bear interest payable on the Interest Payment Dates
and at the rate specified with respect to that series. The principal of and
the interest on the Debt Securities of any series, as well as any premium
thereon in case of redemption thereof prior to maturity, shall be payable in
the coin or currency of the United States of America that at the time of such
payment is legal tender for public and private debt, at the office or agency
of the Company maintained for that purpose in the Borough of Manhattan, the
City and State of New York. Notwithstanding the foregoing, so long as the
holder of any Debt Securities is the Property Trustee, the payment of the
principal and interest, including premium if any, on the Debt Securities held
by the Property Trustee shall be made at such place and to such account as may
be designated by the Property Trustee. Each Debt Security shall be dated the
date of its authentication. Interest on the Debt Securities shall be computed
on the basis of a 360-day year composed of twelve 30-day months.
The interest installment on any Debt Security that is payable, and
is punctually paid or duly provided for, on any Interest Payment Date for Debt
Securities of that series shall be paid to the Person in whose name said Debt
Security (or one or more Predecessor Debt Securities) is registered at
the close of business on the regular record date for such interest
installment. In the event that any Debt Security of a particular series or
portion thereof is called for redemption and the redemption date is
subsequent to a regular record date with respect to any Interest Payment Date
and prior to such Interest Payment Date, interest on such Debt Security will
be paid upon presentation and surrender of such Debt Security as provided in
Section 3.3.
Any interest on any Debt Security that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date for Debt
Securities of that series (herein called "Defaulted Interest") shall forthwith
cease to be payable to the registered holder on the relevant regular record
date by virtue of having been such holder; and such Defaulted Interest shall
be paid by the Company, at its election, as provided in clause (1) or clause
(2) below:
(1) The Company may make payment of any Defaulted Interest on Debt
Securities to the Persons in whose names such Debt Securities (or their
respective Predecessor Debt 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 such Debt Security and the
8
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 not be more than 15 nor 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
Securityholder at his or her 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 mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names such Debt
Securities (or their respective Predecessor Debt Securities) are
registered on such special record date and shall be no longer payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on any
Debt Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Debt Securities
may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustees of the
proposed payment pursuant to this clause, such manner of payment shall
be deemed practicable by the Trustee.
Unless otherwise provided in a Board Resolution and an Officers'
Certificate or in one or more indentures supplemental hereto establishing the
terms of any series of Debt Securities pursuant to Section 2.1 hereof, the
term "regular record date" as used in this Section with respect to a series of
Debt Securities with respect to any Interest Payment Date for such series
shall mean either (a) the fifteenth day of the month immediately preceding the
month in which an Interest Payment Date established for such series pursuant
to Section 2.1 shall occur, if such Interest Payment Date is the first day of
a month, (b) the fifteenth day of the month in which an Interest Payment Date
established for such series pursuant to Section 2.1 shall occur, if such
Interest Payment Date is the last day of such month, or (c) the last day of
the month immediately preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.1 hereof shall occur, if
such Interest Payment Date is the fifteenth day of a month, whether or not
such date is a Business Day.
Subject to the foregoing provisions of this Section, each Debt
Security of a series delivered under this Indenture upon transfer of or in
exchange for or in lieu of any other Debt Security of such series shall carry
the rights to interest accrued and unpaid, and to accrue, that were carried by
such other Debt Security.
SECTION 2.4. Execution and Authentication.
----------------------------
The Debt Securities shall be signed on behalf of the Company by
its Chairman, President or one of its Vice Presidents, under its corporate
seal attested by its Secretary or one of its Assistant Secretaries. Signatures
may be in the form of a manual or facsimile signature. The Company may use
the facsimile signature of any Person who shall have been Chairman, President
or Vice President thereof, or of any Person who shall have been a Secretary or
Assistant Secretary thereof, notwithstanding the fact that at
9
the time the Debt Securities shall be authenticated and delivered or disposed
of such Person shall have ceased to be the Chairman, President or a Vice
President, or the Secretary or an Assistant Secretary, of the Company. The
seal of the Company may be in the form of a facsimile of such seal and may be
impressed, affixed, imprinted or otherwise reproduced on the Debt Securities.
The Debt Securities may contain such notations, legends or endorsements
required by law, stock exchange rule or usage. Each Debt Security shall be
dated the date of its authentication by the Trustee.
A Debt Security shall not be valid until authenticated manually by
an authorized signatory of the Trustee, or by an Authenticating Agent. Such
signature shall be conclusive evidence that the Debt Security so authenticated
has been duly authenticated and delivered hereunder and that the holder is
entitled to the benefits of this Indenture.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Debt Securities of any series
executed by the Company to the Trustee for authentication, together with a
written order of the Company for the authentication and delivery of such Debt
Securities, signed by its Chairman, President or any Vice President and its
Treasurer or any Assistant Treasurer, and the Trustee in accordance with such
written order shall authenticate and deliver such Debt Securities.
In authenticating such Debt Securities and accepting the
additional responsibilities under this Indenture in relation to such Debt
Securities, the Trustee shall be entitled to receive, and (subject to Section
7.1) shall be fully protected in relying upon, an Opinion of Counsel stating
that the form and terms thereof have been established in conformity with the
provisions of this Indenture.
The Trustee shall not be required to authenticate such Debt
Securities if the issue of such Debt Securities pursuant to this Indenture
will affect the Trustee's own rights, duties or immunities under the Debt
Securities and this Indenture or otherwise in a manner that is not reasonably
acceptable to the Trustee.
SECTION 2.5. Registration of Transfer and Exchange.
-------------------------------------
(a) Debt Securities of any series may be exchanged upon
presentation thereof at the Corporate Trust Office or such other location
designated by the Company pursuant to Section 4.2 for other Debt Securities of
such series of authorized denominations, and for a like aggregate principal
amount, upon payment of a sum sufficient to cover any tax or other
governmental charge in relation thereto, all as provided in this Section. In
respect of any Debt Securities so surrendered for exchange, the Company shall
execute, the Trustee shall authenticate and such office or agency shall
deliver in exchange therefor the Debt Security or Debt Securities of the same
series that the Securityholder making the exchange shall be entitled to
receive, bearing numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at the Corporate
Trust Office or such other location designated by the Company pursuant to
Section 4.2 a register or registers (herein referred to as the "Security
Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall register the Debt Securities and the transfers of
Debt Securities as in this Article provided and which at all reasonable times
shall be open for inspection by the Trustee. The registrar for the purpose of
registering Debt Securities and the transfer of Debt Securities as herein
provided shall be appointed as authorized by a Board Resolution (the "Security
Registrar").
10
Upon surrender for transfer of any Debt Security at the Corporate
Trust Office or such other location designated by the Company pursuant to
Section 4.2, the Company shall execute, the Trustee shall authenticate, and
such office or agency shall deliver in the name of the transferee or
transferees a new Debt Security or Debt Securities of the same series as the
Debt Security presented for a like aggregate principal amount.
All Debt Securities presented or surrendered for exchange or
registration of transfer, as provided in this Section, shall be accompanied
(if so required by the Company or the Security Registrar) by a written
instrument or instruments of transfer, in form satisfactory to the Company or
the Security Registrar, duly executed by the registered holder or by such
holder's duly authorized attorney in writing.
(c) No service charge shall be made for any exchange or
registration of transfer of Debt Securities, or issue of new Debt Securities
in case of partial redemption of any series, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge in
relation thereto, other than exchanges pursuant to Section 2.6, Section 3.3(b)
and Section 9.4 not involving any transfer.
(d) The Company shall not be required (i) to issue, exchange or
register the transfer of any Debt Securities during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of less than all the Outstanding Debt Securities of the same series
and ending at the close of business on the day of such mailing, nor (ii) to
register the transfer of or exchange any Debt Securities of any series or
portions thereof called for redemption. The provisions of this Section 2.5
are, with respect to any Global Security, subject to Section 2.11 hereof.
SECTION 2.6. Temporary Securities.
--------------------
Pending the preparation of definitive Debt Securities of any
series, the Company may execute, and the Trustee shall authenticate and
deliver, temporary Debt Securities (printed, lithographed or typewritten) of
any authorized denomination. Such temporary Debt Securities shall be
substantially in the form of the definitive Debt Securities in lieu of which
they are issued, but with such omissions, insertions and variations as may be
appropriate for temporary Debt Securities, all as may be determined by the
Company. Every temporary Debt Security of any series shall be executed by the
Company and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive Debt
Securities of such series. Without unnecessary delay the Company will execute
and furnish definitive Debt Securities of such series and thereupon any or all
temporary Debt Securities of such series may be surrendered in exchange
therefor (without charge to the holders), at the Corporate Trust Office or
such location designated by the Company pursuant to Section 4.2, and the
Trustee shall authenticate, and such Corporate Trust Office or location shall
deliver, in exchange for such temporary Debt Securities an equal aggregate
principal amount of definitive Debt Securities of such series, unless the
Company advises the Trustee to the effect that definitive Debt Securities need
not be executed and furnished until further notice from the Company. Until so
exchanged, the temporary Debt Securities of such series shall be entitled to
the same benefits under this Indenture as definitive Debt Securities of such
series authenticated and delivered hereunder.
SECTION 2.7. Mutilated, Destroyed, Lost or Stolen Debt Securities.
----------------------------------------------------
In case any temporary or definitive Debt Security shall become
mutilated or be destroyed,
11
lost or stolen, the Company (subject to the next succeeding sentence) shall
execute, and upon the Company's request, the Trustee (subject as aforesaid)
shall authenticate and deliver, a new Debt Security of the same series,
bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated Debt Security, or in lieu of and in
substitution for the Debt Security so destroyed, lost or stolen. In every
case the applicant for a substituted Debt Security shall furnish to the
Company and the Trustee such security or indemnity as may be required by them
to save each of them harmless, and, in every case of destruction, loss or
theft, the applicant shall also furnish to the Company and the Trustee
evidence to their satisfaction of the destruction, loss or theft of the
applicant's Debt Security and of the ownership thereof. The Trustee may
authenticate any such substituted Debt Security and deliver the same upon the
written request or authorization of any officer of the Company. Upon the
issuance of any substituted Debt Security, 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. In case any Debt Security that
has matured or is about to mature shall become mutilated or be destroyed, lost
or stolen, the Company may, instead of issuing a substitute Debt Security, pay
or authorize the payment of the same (without surrender thereof except in the
case of a mutilated Debt Security) if the applicant for such payment shall
furnish to the Company and the Trustee such security or indemnity as they may
require to save them harmless, and, in case of destruction, loss or theft,
evidence to the satisfaction of the Company and the Trustee of the
destruction, loss or theft of such Debt Security and of the ownership thereof.
Every replacement Debt Security issued pursuant to the provisions
of this Section shall constitute an additional contractual obligation of the
Company, whether or not the mutilated, destroyed, lost or stolen Debt Security
shall be found at any time, or be enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately with any and
all other Debt Securities of the same series duly issued hereunder. All Debt
Securities shall be held and owned upon the express condition that the
foregoing provisions are exclusive with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Debt Securities, and shall preclude
(to the extent lawful) any and all other rights or remedies, notwithstanding
any law or statute existing or hereafter enacted to the contrary with respect
to the replacement or payment of negotiable instruments or other securities
without their surrender.
SECTION 2.8. Cancellation.
------------
12
All Debt Securities surrendered for the purpose of payment,
redemption, exchange or registration of transfer shall, if surrendered to the
Company or any paying agent, be delivered to the Trustee for cancellation, or,
if surrendered to the Trustee, shall be canceled by it, and no Debt Securities
shall be issued in lieu thereof except as expressly required or permitted by
any of the provisions of this Indenture. On request of the Company at the time
of such surrender, the Trustee shall deliver to the Company canceled Debt
Securities held by the Trustee. In the absence of such request the Trustee
may dispose of canceled Debt Securities in accordance with its standard
procedures and deliver a certificate of disposition to the Company. If the
Company shall otherwise acquire any of the Debt Securities, however, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Debt Securities unless and until the same are
delivered to the Trustee for cancellation.
SECTION 2.9. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Debt Securities, express or
implied, shall give or be construed to give to any Person, other than the
parties hereto and the holders of the Debt Securities (and, with respect to
the provisions of Article XIII, the holders of Senior Indebtedness) any legal
or equitable right, remedy or claim under or in respect of this Indenture, or
under any covenant, condition or provision herein contained; all such
covenants, conditions and provisions being for the sole benefit of the parties
hereto and of the holders of the Debt Securities (and, with respect to the
provisions of Article XIII, the holders of Senior Indebtedness).
SECTION 2.10. Authenticating Agent.
--------------------
So long as any of the Debt Securities of any series remain
Outstanding, there may be an Authenticating Agent for any or all such series
of Debt Securities which the Trustee shall have the right to appoint. Said
Authenticating Agent shall be authorized to act on behalf of the Trustee to
authenticate Debt Securities of such series issued upon exchange, transfer or
partial redemption thereof, and Debt Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. All references
in this Indenture to the authentication of Debt Securities by the Trustee
shall be deemed to include authentication by an Authenticating Agent for such
series. Each Authenticating Agent shall be acceptable to the Company and shall
be a corporation that has a combined capital and surplus, as most recently
reported or determined by it, sufficient under the laws of any jurisdiction
under which it is organized or in which it is doing business to conduct a
trust business, and that is otherwise authorized under such laws to conduct
such business and is subject to supervision or examination by federal or state
authorities. If at any time any Authenticating Agent shall cease to be
eligible in accordance with these provisions, it shall resign immediately.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at
any time (and upon request by the Company shall) terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent, the Trustee may appoint
an eligible successor Authenticating Agent acceptable to the Company. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder as if originally named as an Authenticating Agent pursuant hereto.
SECTION 2.11. Global Securities.
-----------------
13
(a) If the Company shall establish pursuant to Section 2.1 that
the Debt Securities of a particular series are to be issued as a Global
Security or Global Securities, then the Company shall execute and the Trustee
shall, in accordance with Section 2.4, authenticate and deliver, a Global
Security or Global Securities that (i) shall represent, and shall be
denominated in an amount equal to the aggregate principal amount of, all of
the Outstanding Debt 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: "Except as
otherwise provided in Section 2.11 of the Indenture, this Debt Security may be
transferred, in whole but not in part, only to another nominee of the
Depositary or to a successor Depositary or to a nominee of such successor
Depositary."
(b) Except as provided in clause (c), notwithstanding the
provisions of Section 2.5, the Global Security or Global Securities of a
series may be transferred, in whole but not in part and in the manner provided
in Section 2.5, 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.
(c) If at any time the Depositary for a series of the Debt
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, at a time when the Depositary is
required to be so registered to act as such Depositary 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 if there has occurred an Event of Default with respect to
such series of the Debt Securities, this Section 2.11 shall no longer be
applicable to the Debt Securities of such series and the Company will execute,
and subject to Section 2.5, the Trustee will authenticate and deliver the Debt
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 Security or Global Securities of such series in
exchange for such Global Security or Global Securities. In addition, the
Company may at any time determine that the Debt Securities of any series shall
no longer be represented by a Global Security or Global Securities and that
the provisions of this Section 2.11 shall no longer apply to the Debt
Securities of such series. In such event, the Company will execute and,
subject to Section 2.5, the Trustee, upon receipt of an Officers' Certificate
evidencing such determination by the Company, will authenticate and deliver
the Debt 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 Security or Global Securities of
such series in exchange for such Global Security or Global Securities. Upon
the exchange of the Global Security or Global Securities for such Debt
Securities in definitie registered form without coupons, in authorized
denominations, the Global Security or Global Securities shall be canceled by
the Trustee. Such Debt Securities in definitive registered form issued in
exchange for the Global Security or Global Securities pursuant to this Section
2.11(c) shall be registered in such names and in such authorized denominations
as the Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Debt Securities to the Depositary for delivery to the Persons in
whose names such Debt Securities are so registered.
14
ARTICLE III
REDEMPTION OF DEBT SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.1. Redemption.
----------
The Company may redeem the Debt Securities of any series issued
hereunder on and after the dates and in accordance with the terms established
for such series pursuant to Section 2.1.
SECTION 3.2. Notice of Redemption.
--------------------
(a) In case the Company shall desire to exercise such right to
redeem all or, as the case may be, a portion of the Debt Securities of any
series in accordance with the right reserved so to do, the Company shall, or
shall cause the Trustee to, give notice of such redemption to holders of the
Debt Securities of such series to be redeemed by mailing, first class postage
prepaid, a notice of such redemption not less than 30 days and not more than
60 days before the date fixed for redemption of that series to such holders at
their last addresses as they shall appear upon the Security Register unless a
shorter period is specified in the Debt Securities to be redeemed. Any notice
that is mailed in the manner herein provided shall be conclusively presumed to
have been duly given, whether or not the registered holder receives the
notice. In any case, failure duly to give such notice to the holder of any
Debt Security of any series designated for redemption in whole or in part, or
any defect in the notice, shall not affect the validity of the proceedings for
the redemption of any other Debt Securities of such series or any other
series. In the case of any redemption of Debt Securities prior to the
expiration of any restriction on such redemption provided in the terms of such
Debt Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with any such
restriction.
Each such notice of redemption shall specify the date fixed for
redemption and the redemption price at which Debt Securities of that series
are to be redeemed, and shall state that payment of the redemption price of
such Debt Securities to be redeemed will be made at the Corporate Trust
Office, upon presentation and surrender of such Debt Securities, that interest
accrued to the date fixed for redemption will be paid as specified in said
notice, that from and after said date interest will cease to accrue and that
the redemption is for a sinking fund, if such is the case. If less than all
the Debt Securities of a series are to be redeemed in whole or in part, the
notice to the holders of Debt Securities of that series to be redeemed shall
specify the particular Debt Securities to be so redeemed. In case any Debt
Security is to be redeemed in part only, the notice that relates to such Debt
Security shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the redemption date, upon surrender
of such Debt Security, a new Debt Security or Debt Securities of such series
in principal amount equal to the unredeemed portion thereof will be issued.
(b) If less than all the Debt Securities of a series are to be
redeemed, the Company shall give the Trustee at least 45 days' notice in
advance of the date fixed for redemption as to the aggregate principal amount
of Debt Securities of the series to be redeemed, and thereupon the Trustee
shall select, by lot or in such other manner as it shall deem appropriate and
fair in its discretion and that may provide for the selection of a portion or
portions (equal to one thousand U.S. dollars ($1,000) or the minimum
denomination in which such Debt Securities are issuable, if other than $1,000,
or any integral multiple of $1,000 or such minimum denomination, as the case
may be) of the principal amount of such Debt Securities of a denomination
larger than $1,000 or such other minimum denomination, the Debt Securities to
be redeemed and shall thereafter promptly notify the Company in writing of the
numbers of the Debt Securities
15
to be redeemed, in whole or in part.
The Company may, if and whenever it shall so elect, by delivery of
instructions signed on its behalf by its Chairman, President or any Vice
President, instruct the Trustee or any paying agent to call all or any part of
the Debt Securities of a particular series for redemption and to give notice
of redemption in the manner set forth in this Section, such notice to be in
the name of the Company or its own name as the Trustee or such paying agent
may deem advisable. In any case in which notice of redemption is to be given
by the Trustee or any such paying agent, the Company shall deliver or cause to
be delivered to, or permit to remain with, the Trustee or such paying agent,
as the case may be, such Security Register, transfer books or other records,
or suitable copies or extracts therefrom, sufficient to enable the Trustee or
such paying agent to give any notice by mail that may be required under the
provisions of this Section.
SECTION 3.3. Payment Upon Redemption.
-----------------------
(a) If the giving of notice of redemption shall have been
completed as above provided, the Debt Securities or portions of Debt
Securities of the series to be redeemed specified in such notice shall become
due and payable on the date and at the place stated in such notice at the
applicable redemption price, together with interest accrued to the date fixed
for redemption, and interest on such Debt Securities or portions of Debt
Securities shall cease to accrue on and after the date fixed for redemption,
unless the Company shall default in the payment of such redemption price and
accrued interest with respect to any such Debt Security or portion thereof.
On presentation and surrender of such Debt Securities on or after the date
fixed for redemption at the place of payment specified in the notice, said
Debt Securities shall be paid and redeemed at the applicable redemption price
for such series, together with interest accrued thereon to the date fixed for
redemption (but if the date fixed for redemption is an Interest Payment Date,
the interest installment payable on such date shall be payable to the
registered holder at the close of business on the applicable record date
pursuant to Section 2.3).
(b) Upon presentation of any Debt Security of such series that is
to be redeemed in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Debt Security is presented
shall deliver to the holder thereof, at the expense of the Company, a new Debt
Security or Debt Securities of the same series, of authorized denominations in
principal amount equal to the unredeemed portion of the Debt Security so
presented.
SECTION 3.4. Sinking Fund.
------------
The provisions of Sections 3.4, 3.5 and 3.6 shall be applicable to
any sinking fund for the retirement of Debt Securities of a series, except as
otherwise specified as contemplated by Section 2.1 for Debt Securities of such
series.
The minimum amount of any sinking fund payment provided for by the
terms of Debt 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 Debt Securities of any series is herein referred
to as an "optional sinking fund payment." If provided for by the terms of
Debt Securities of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 3.5. Each sinking fund payment
shall be applied to the redemption of Debt Securities of any series as
provided for by the terms of Debt Securities of such series.
16
SECTION 3.5. Satisfaction of Sinking Fund Payments with Debt Securities.
----------------------------------------------------------
The Company (i) may deliver Outstanding Debt Securities of a
series (other than any Debt Securities previously called for redemption) and
(ii) may apply as a credit Debt Securities of a series that have been redeemed
either at the election of the Company pursuant to the terms of such Debt
Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Debt Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to
the Debt Securities of such series required to be made pursuant to the terms
of such Debt Securities as provided for by the terms of such series, provided
that such Debt Securities have not been previously so credited. Such Debt
Securities shall be received and credited for such purpose by the Trustee at
the redemption price specified in such Debt Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment
shall be reduced accordingly.
SECTION 3.6. Redemption of Debt Securities for Sinking Fund.
----------------------------------------------
Not less than 45 days prior to each sinking fund payment date for
any series of Debt Securities, the Company will deliver to the Trustee (i) an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of the series, the portion
thereof, if any, that is to be satisfied by delivering and crediting Debt
Securities of that series pursuant to Section 3.5, and the basis for such
credit and (ii) any Debt Securities to be so delivered. Not less than 30 days
before each such sinking fund payment date, the Trustee shall select the Debt
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 3.2 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 3.2. Such notice having been duly given, the redemption of such
Debt Securities shall be made upon the terms and in the manner stated in
Section 3.3.
ARTICLE IV
COVENANTS OF THE COMPANY
SECTION 4.1. Payment of Principal, Premium and Interest.
------------------------------------------
The Company will duly and punctually pay or cause to be paid the
principal of (and premium, if any) and interest on the Debt Securities of each
series at the time and place and in the manner provided herein and established
with respect to such Debt Securities.
SECTION 4.2. Maintenance of Office or Agency.
-------------------------------
So long as any series of the Debt Securities remain Outstanding,
the Company agrees to maintain an office or agency with respect to each such
series at such location or locations as may be designated as provided in this
Section 4.2, where (i) Debt Securities of that series may be presented for
payment, (ii) Debt Securities of that series may be presented as hereinabove
authorized for registration of transfer and exchange, and (iii) notices and
demands to or upon the Company in respect of the Debt Securities of that
series and this Indenture may be given or served, such designation to continue
with respect to such office or agency until the Company shall, by written
notice signed by its Chairman, President or a Vice President and delivered to
the trustee, designate some other office or agency for such purposes or any of
them. 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, notices and demands may be made or
17
served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, notices
and demands.
SECTION 4.3. Paying Agents.
-------------
(a) If the Company shall appoint one or more paying agents for
all or any series of the Debt Securities, other than the Trustee, the Company
will cause each such paying agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section:
(1) that it will hold all sums held by it as such agent for the
payment of the principal of (and premium, if any) or interest on the
Debt Securities of that series (whether such sums have been paid to it
by the Company or by any other obligor of such Debt Securities) in trust
for the benefit of the Persons entitled thereto;
(2) that it will give the Trustee notice of any failure by the
Company (or by any other obligor of such Debt Securities) to make any
payment of the principal of (and premium, if any) or interest on the
Debt Securities of that series when the same shall be due and payable;
(3) that it will, at any time during the continuance of any
failure referred to in the preceding paragraph (a)(2) above, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such paying agent; and
(4) that it will perform all other duties of paying agent as set
forth in this Indenture.
(b) If the Company shall act as its own paying agent with respect
to any series of the Debt Securities, it will on or before each due date of
the principal of (and premium, if any) or interest on Debt Securities of that
series, set aside, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay such principal (and premium, if any)
or interest so becoming due on Debt Securities of that series until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of such action, or any failure (by it or any
other obligor on such Debt Securities) to take such action. Whenever the
Company shall have one or more paying agents for any series of Debt
Securities, it will, prior to each due date of the principal of (and premium,
if any) or interest on any Debt Securities of that series, deposit with the
paying agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such
paying agent is the Trustee) the Company will promptly notify the Trustee of
this action or failure so to act.
(c) Notwithstanding anything in this Section to the contrary, (i)
the agreement to hold sums in trust as provided in this Section is subject to
the provisions of Section 11.5, and (ii) 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 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 terms and conditions 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.
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SECTION 4.4. Appointment to Fill Vacancy in Office of Trustee.
------------------------------------------------
The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 7.10, a
Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 4.5. Compliance with Consolidation Provisions.
----------------------------------------
The Company will not, while any of the Debt Securities remain
Outstanding, consolidate with, or merge into, any other company or merge any
other company into itself, or sell or convey all or substantially all of its
property to any other company unless the provisions of Article X are complied
with.
SECTION 4.6. Limitation on Dividends.
-----------------------
If Debt Securities are issued to a WPSR Trust or a trustee of such
trust in connection with the issuance of Trust Securities by such WPSR Trust
and (a) there shall have occurred any event that would constitute an Event of
Default, or (b) the Company shall be in default with respect to its payment of
any obligations under the Trust Preferred Securities Guaranty or Trust Common
Securities Guaranty relating to such Trust Securities, or (c) the Company
shall have given notice of its election to defer payments of interest on Debt
Securities by extending the interest payment period as provided in the Board
Resolution and Officers' Certificate or indenture supplemental hereto
establishing such series of Debt Securities, and such period, or any extension
thereof, shall be continuing, then (x) the Company shall not declare or pay
any dividend on, make any distribution with respect to, or redeem, purchase or
acquire, or make a liquidation payment with respect to, any of its capital
stock (other than (i) repurchases or acquisitions of the Company's common
shares as contemplated by any employment arrangement, benefit plan or other
similar contract with or for the benefit of employees, officers or directors
entered into in the ordinary course of business, (ii) repurchases of common
shares of the Company as contemplated by the Company Stock Investment Plan or
Company Deferred Compensation Plan as in effect immediately prior to the
occurrence of such Event of Default or the date upon which the Company gives
notice of its election to extend the interest payment period, as applicable,
(iii) as a result of an exchange or conversion of any class or series of the
Company's capital stock for the Company's common shares, provided that such
class or series of the Company's capital stock was outstanding prior to the
occurrence of such Event of Default or the date upon which the Company gives
notice of its election to extend the interest payment period, as applicable,
(iv) the purchase of fractional interests in shares of the Company's cpital
stock pursuant to the conversion or exchange provisions of such Company
capital stock or the security being converted or exchanged, provided that such
Company capital stock or security was outstanding prior to the occurrence of
such Event of Default or the date upon which the Company gives notice of its
election to extend the interest payment period, as applicable, or (v) the
payment of any stock dividend where the dividend is paid in the form of the
same stock as that on which the dividend is paid), (y) the Company shall not
directly or indirectly, and shall not allow any of its Subsidiaries to, make
any payment of interest, principal or premium, if any, on or repay, repurchase
or redeem any debt securities issued by the Company that rank pari passu with
or junior to the Debt Securities, and (z) the Company shall not make guaranty
payments with respect to the foregoing (other than pursuant to the Trust
Preferred Securities Guaranty).
SECTION 4.7. Covenants as to WPSR Trusts.
---------------------------
In the event Debt Securities are issued to a WPSR Trust in
connection with the issuance of
19
Trust Securities by such WPSR Trust, for so long as such Trust Securities
remain outstanding, the Company will (i) maintain 100% ownership of the Trust
Common Securities of such WPSR Trust; provided, however, that any permitted
-------- -------
successor of the Company under this Indenture may succeed to the Company's
ownership of the Trust Common Securities, (ii) not cause, as sponsor of such
WPSR Trust, or permit, as holder of Trust Common Securities of such WPSR
Trust, the dissolution, winding-up or termination of such WPSR Trust, except
in connection with a distribution of Debt Securities as provided in the
Declaration and in connection with certain mergers, consolidations or
amalgamations permitted by the Declaration, and (iii) use its reasonable
efforts to cause such WPSR Trust (a) to remain a statutory business trust,
except in connection with a distribution of Debt Securities to holders of
Trust Securities upon dissolution of such WPSR Trust, the redemption of all of
the Trust Securities of such WPSR Trust or certain mergers, consolidations or
amalgamations, each as permitted by the Declaration of such WPSR Trust, and
(b) to otherwise continue to be classified for United States federal income
tax purposes as a grantor trust.
SECTION 4.8. Corporate Existence.
-------------------
The Company will, subject to the provisions of Article X, at all
times maintain its corporate existence and right to carry on business and will
duly procure all renewals and extensions thereof, and, to the extent necessary
or desirable in the operation of its business, will use its best efforts to
maintain, preserve and renew all of its rights, powers, privileges and
franchises.
SECTION 4.9. Notice of Default.
-----------------
The Company shall file with the Trustee written notice of any
Event of Default within 30 Business Days of its becoming aware of such Event
of Default.
ARTICLE V
SECURITYHOLDERS, LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 5.1. Company to Furnish Trustee Names and Addresses of
-------------------------------------------------
Securityholders.
---------------
The Company will furnish or cause to be furnished to the Trustee
(a) on each regular record date (as defined in Section 2.3) a list, in such
form as the Trustee may reasonably require, of the names and addresses of the
holders of each series of Debt Securities as of such regular record date,
provided, however, the Company shall not be obligated to furnish or cause such
-------- -------
list to be furnished at any time that the list shall not differ in any respect
from the most recent list furnished to the Trustee by the Company 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 in either case, no such list need be
-------- -------
furnished for any series for which the Trustee shall be the Security
Registrar.
SECTION 5.2. Preservation Of Information; Communications With
------------------------------------------------
Securityholders.
---------------
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of the
holders of Debt Securities contained in the most recent list furnished to it
as provided in Section 5.1 and as to the names and addresses of holders of
Debt Securities received by the Trustee in its capacity as Security Registrar
(if acting in such capacity).
20
(b) The Trustee may destroy any list furnished to it as provided
in Section 5.1 upon receipt of a new list so furnished.
(c) Securityholders may communicate as provided in Section 312(b)
of the Trust Indenture Act with other Securityholders with respect to their
rights under this Indenture or under the Debt Securities.
SECTION 5.3. Reports By the Company.
----------------------
(a) The Company covenants and agrees to 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) that 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 such sections, then to
file with the Trustee and the Commission, in accordance with the rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports that 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.
(b) The Company covenants and agrees to file with the Trustee and
the Commission, in accordance with the 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 provided for in this Indenture as may be required from time to time
by such rules and regulations.
(c) The Company covenants and agrees to transmit by mail, first
class postage prepaid, or reputable overnight delivery service that provides
for evidence of receipt, to the Securityholders, as their names and addresses
appear upon 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 subsections (a) and (b) of
this Section as may be required by rules and regulations prescribed from time
to time by the Commission.
SECTION 5.4. Reports by the Trustee.
----------------------
(a) On or before July 15 in each year commencing in 1999, in
which any of the Debt Securities are Outstanding, the Trustee shall transmit
by mail, first class postage prepaid, to the Securityholders, as their names
and addresses appear upon the Security Register, a brief report dated as of
the preceding May 15, if and to the extent required under Section 313(a) of
the Trust Indenture Act.
(b) The Trustee shall comply with Sections 313(b) and 313(c) of
the Trust Indenture Act.
(c) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with the Company,
with each stock exchange upon which any Debt Securities are listed (if so
listed) and also with the Commission. The Company agrees to notify the
Trustee when any Debt Securities become listed on any stock exchange.
21
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.1. Events of Default.
-----------------
(a) Whenever used herein with respect to Debt Securities of a
particular series, "Event of Default" means any one or more of the following
events that has occurred and is continuing:
(1) the Company defaults in the payment of any installment of
interest upon any of the Debt Securities of that series, including the
payment of any additional interest with respect thereto as required by
any indenture supplemental to this indenture, as and when the same shall
become due and payable, and continuance of such default for a period of
30 days; provided, however, that a valid extension of an interest
-------- -------
payment period by the Company in accordance with the terms of the Debt
Securities of that series shall not constitute a default in the payment
of interest for this purpose;
(2) the Company defaults in the payment of the principal of (or
premium, if any, on) any of the Debt Securities of that series as and
when the same shall become due and payable whether at maturity, upon
redemption, by declaration or otherwise, or in any payment required by
any sinking or analogous fund established with respect to that series;
(3) the Company fails to observe or perform any other of its
covenants or agreements with respect to that series contained in this
Indenture or otherwise established with respect to that series of Debt
Securities pursuant to Section 2.1 for a period of 60 days after the
date on which written notice of such failure, requiring the same to be
remedied and stating that such notice is a "Notice of Default"
hereunder, shall have been given to the Company by the Trustee, by
registered or certified mail, or to the Company and the Trustee by the
holders of at least 25% in principal amount of the Debt Securities of
that series at the time Outstanding;
(4) the Company, pursuant to or within the meaning of any
Bankruptcy Law, (i) commences a voluntary case, (ii) consents to the
entry of an order for relief against it in an involuntary case, (iii)
consents to the appointment of a Custodian of it or for all or
substantially all of its property or (iv) makes a general assignment for
the benefit of its creditors;
(5) a court of competent jurisdiction enters an order under any
Bankruptcy Law that (i) is for relief against the Company in an
involuntary case, (ii) appoints a Custodian of the Company for all or
substantially all of its property, or (iii) orders the liquidation of
the Company, and the order or decree remains unstayed and in effect for
90 days; or
(6) in the event Debt Securities are issued to a WPSR Trust or a
trustee of such trust in connection with the issuance of Trust
Securities by such WPSR Trust, such WPSR Trust shall have voluntarily or
involuntarily dissolved, wound-up its business or otherwise terminated
its existence, except in connection with (i) the distribution of Debt
Securities to holders of Trust Securities in liquidation of their
interests in such WPSR Trust, (ii) the redemption of all outstanding
Trust Securities of such WPSR Trust, and (iii) mergers, consolidations
or amalgamations, each as permitted by the Declaration of such WPSR
Trust.
22
(b) If an Event of Default described in clauses (1), (2), (3) or
(6) of this Section 6.1 with respect to Debt Securities of any series at the
time outstanding occurs and is continuing, unless the principal of all the
Debt Securities of that series shall have already become due and payable,
either the Trustee or the holders of not less than 25% in aggregate principal
amount of the Debt Securities of that series then Outstanding hereunder, by
notice in writing to the Company (and to the Trustee, if given by such
Securityholders), may declare the principal of all the Debt Securities of that
series to be immediately due and payable, and upon any such declaration the
same shall become and be immediately due and payable, notwithstanding anything
contained in this Indenture or in the Debt Securities of that series or
established with respect to that series pursuant to Section 2.1 to the
contrary. If an Event of Default specified in clause (4) or (5) of Section
6.1(a) occurs or is continuing, then the principal amount of all the Debt
Securities shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Securityholder.
(c) At any time after the principal of the Debt Securities of
that series shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained
or entered as hereinafter provided, the holders of a majority in aggregate
principal amount of the Debt Securities of that series then Outstanding
hereunder, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if: (i) the Company has paid or
deposited with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Debt Securities of that series and the principal of (and
premium, if any, on) any and all Debt Securities of that series that shall
have become due otherwise than by acceleration (with interest upon such
principal and premium, if any, and, to the extent that such payment is
enforceable under applicable law, upon overdue installments of interest, at
the rate per annum expressed in the Debt Securities of that series to the date
of such payment or deposit) and the amount payable to the Trustee under
Section 7.6, and (ii) any and all Events of Default with respect to such
series, other than the nonpayment of principal on Debt Securities of that
series that shall not have become due by their terms, shall have been remedied
or waived as provided in Section 6.6. No such rescission and annulment shall
extend to or shall affect any subsequent default or impair any right
consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any right
with respect to Debt Securities of that series under this Indenture and such
proceedings shall have been discontinued or abandoned because of such
rescission or annulment or for any other reason or shall have been determined
adversely to the Trustee, then and in every such case the Company and the
Trustee shall be restored respectively to their former positions and rights
hereunder, and all rights, remedies and powers of the Company and the Trustee
shall continue as though no such proceedings had been taken.
SECTION 6.2. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee.
-------
(a) The Company covenants that (1) in case it shall default in
the payment of any installment of interest on any of the Debt Securities of a
series, or any payment required by any sinking or analogous fund established
with respect to that series as and when the same shall have become due and
payable, and such default shall have continued for a period of 90 days, or (2)
in case it shall default in the payment of the principal of (or premium, if
any, on) any of the Debt Securities of a series when the same shall have
become due and payable, whether upon maturity of the Debt Securities of a
series or upon redemption or upon declaration or otherwise, then, upon demand
of the Trustee, the Company will pay to the Trustee, for the benefit of the
holders of the Debt Securities of that series, the whole amount that then
23
shall have become due and payable on all such Debt Securities for principal
(and premium, if any) or interest, or both, as the case may be, with interest
upon the overdue principal (and premium, if any) and (to the extent that
payment of such interest is enforceable under applicable law and, if the Debt
Securities are held by a WPSR Trust, without duplication of any other amounts
paid by such WPSR Trust in respect thereof) upon overdue installments of
interest at the rate per annum expressed in the Debt Securities of that
series; and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection and the amount payable to the
Trustee under Section 7.6.
(b) If the Company shall fail to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any action or proceedings at law
or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceeding to judgment or final decree, and may
enforce any such judgment or final decree against the Company or other obligor
upon the Debt Securities of that series and collect the moneys adjudged or
decreed to be payable in the manner provided by law out of the property of the
Company or other obligor upon the Debt Securities of that series, wherever
situated.
(c) In case of any receivership, insolvency, liquidation,
bankruptcy, reorganization, readjustment, arrangement, composition or judicial
proceedings affecting the Company or its creditors or property, the Trustee
shall have power to intervene in such proceedings and take any action therein
that may be permitted by the court and shall (except as may be otherwise
provided by law) be entitled to file such proofs of claim and other papers and
documents as may be necessary or advisable in order to have the claims of the
Trustee and of the holders of Debt Securities of such series allowed for the
entire amount due and payable by the Company under this Indenture at the date
of institution of such proceedings and for any additional amount that may
become due and payable by the Company after such date, and to collect and
receive any moneys or other property payable or deliverable on any such claim,
and to distribute the same after the deduction of the amount payable to the
Trustee under Section 7.6; and any receiver, assignee or trustee in bankruptcy
or reorganization is hereby authorized by each of the holders of Debt
Securities of such series to make such payments to the Trustee, and, in the
event that the Trustee shall consent to the making of such payments directly
to such Securityholders, to pay to the Trustee any amount due it under Section
7.6.
(d) All rights of action and of asserting claims under this
Indenture, or under any of the terms established with respect to Debt
Securities of that series, may be enforced by the Trustee without the
possession of any of such Debt Securities, or the production thereof at any
trial or other proceeding relative thereto, and any such suit or 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 payment
to the Trustee of any amounts due under Section 7.6, be for the ratable
benefit of the holders of the Debt Securities of such series.
In case of an Event of Default, the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this Indenture by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant
or agreement contained in this Indenture or in aid of the exercise of any
power granted in this Indenture, or to enforce any other legal or equitable
right vested in the Trustee by this Indenture or by law.
Nothing contained herein shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Securityholder
any plan of reorganization, arrangement, adjustment or
24
composition affecting the Debt Securities of that series or the rights of any
holder thereof or to authorize the Trustee to vote in respect of the claim of
any Securityholder in any such proceeding.
SECTION 6.3. Application of Moneys Collected
-------------------------------
Any moneys collected by the Trustee pursuant to this Article with
respect to a particular series of Debt Securities shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such moneys on account of principal (or premium, if any) or
interest, upon presentation of the Debt Securities of that series, and
notation thereon of the payment, if only partially paid, and upon surrender
thereof if fully paid:
FIRST: To the payment of costs and expenses of collection and of
all amounts payable to the Trustee under Section 7.6;
SECOND: To the payment of all Senior Indebtedness of the Company
if and to the extent required by Article XIII; and
THIRD: To the payment of the amounts then due and unpaid upon
Debt Securities of such series for principal (and premium, if any) and
interest, in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Debt Securities for
principal (and premium, if any) and interest, respectively.
SECTION 6.4. Limitation on Suits.
-------------------
(a) No holder of any Debt Security of any series shall have any
right by virtue or by availing of any provision of this Indenture to institute
any suit, action or proceeding in equity or at law upon or under or with
respect to this Indenture or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless (i) such holder previously shall have
given to the Trustee written notice of an Event of Default and of the
continuance thereof with respect to the Debt Securities of such series
specifying such Event of Default, as hereinbefore provided; (ii) the holders
of not less than 25% in aggregate principal amount of the Debt Securities of
such series then Outstanding shall have made written request upon the Trustee
to institute such action, suit or proceeding in its own name as trustee
hereunder; (iii) such holder or holders shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby; (iv) the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
failed to institute any such action, suit or proceeding; and (v) during such
60 day period, the holders of not less than a majority in principal amount of
the Debt Securities of that series do not give the Trustee a direction
inconsistent with the request.
(b) Notwithstanding anything contained herein to the contrary or
any other provisions of this Indenture, the right of any holder of any Debt
Security to receive payment of the principal of (and premium, if any) and
interest on such Debt Security, as therein provided, on or after the
respective due dates expressed in such Debt Security (or in the case of
redemption, on the redemption date), or to institute suit for the enforcement
of any such payment on or after such respective dates or redemption date,
shall not be impaired or affected without the consent of such holder, and by
accepting a Debt Security hereunder it is expressly understood, intended and
covenanted by the taker and holder of every Debt Security of such series with
every other such taker and holder and the Trustee, that no one or more holders
of Debt Securities of
25
such series shall have any right in any manner whatsoever by virtue or by
availing of any provision of this Indenture to affect, disturb or prejudice
the rights of the holders of any other of such Debt Securities, or to obtain
or seek to obtain priority over or preference to any other such holder, or to
enforce any right under this Indenture, except in the manner herein provided
and for the equal, ratable and common benefit of all holders of Debt
Securities of such series. For the protection and enforcement of the
provisions of this Section, each and every Securityholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
SECTION 6.5. Rights and Remedies Cumulative; Delay or Omission Not
-----------------------------------------------------
Waiver.
------
(a) Except as otherwise provided in Section 2.7, all powers and
remedies given by this Article to the Trustee or to the Securityholders shall,
to the extent permitted by law, be deemed cumulative and not exclusive of any
other powers and remedies available to the Trustee or the holders of the Debt
Securities, by judicial proceedings or otherwise, to enforce the performance
or observance of the covenants and agreements contained in this Indenture or
otherwise established with respect to such Debt Securities.
(b) No delay or omission of the Trustee or of any holder of any
of the Debt Securities to exercise any right or power accruing upon any Event
of Default occurring and continuing as aforesaid shall impair any such right
or power, or shall be construed to be a waiver of any such default or an
acquiescence therein; and, subject to the provisions of Section 6.4, every
power and remedy given by this Article or by law to the Trustee or the
Securityholders may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Securityholders.
SECTION 6.6. Control by Securityholders.
--------------------------
The holders of a majority in aggregate principal amount of the
Debt Securities of any or all series affected (voting as a class) at the time
Outstanding, determined in accordance with Section 8.4, 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 such series; provided, however, that such
-------- -------
direction shall not be in conflict with any rule of law or with this Indenture
or be unduly prejudicial to the rights of holders of Debt Securities of any
other series at the time Outstanding determined in accordance with Section
8.4. Subject to the provisions of Section 7.1, the Trustee shall have the
right to decline to follow any such direction if the Trustee in good faith
shall, by a Responsible Officer or Responsible Officers of the Trustee,
determine that the proceeding so directed would involve the Trustee in
personal liability. The holders of a majority in aggregate principal amount of
the Debt Securities of any series at the time Outstanding affected thereby,
determined in accordance with Section 8.4, may on behalf of the holders of all
of the Debt Securities of such series waive any past default in the
performance of any of the covenants contained herein or established pursuant
to Section 2.1 with respect to such series and its consequences, except (i) a
default in the payment of the principal of, or premium, if any, or interest
on, any of the Debt Securities of that series as and when the same shall
become due by the terms of such Debt Securities otherwise than by acceleration
(unless such default has been cured and a sum sufficient to pay all matured
installments of interest and principal and any premium has been deposited with
the Trustee (in accordance with Section 6.1(c)), or (ii) a default in the
covenants contained in Section 4.6. Upon any such waiver, the default covered
thereby shall be deemed to be cured for all purposes of this Indenture and the
Company, the Trustee and the holders of the Debt Securities of such series
shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
26
SECTION 6.7. Undertaking to Pay Costs.
------------------------
All parties to this Indenture agree, and each holder of any Debt
Securities by such holder's 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 shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Securityholder, or
group of Securityholders, holding more than 10% in aggregate principal amount
of the Outstanding Debt Securities of any series, or to any suit instituted by
any Securityholder for the enforcement of the payment of the principal of (or
premium, if any) or interest on any Debt Security of such series, on or after
the respective due dates expressed in such Debt Security or established
pursuant to this Indenture.
SECTION 6.8. Acknowledgement Regarding Trust Preferred Securities.
----------------------------------------------------
The Company acknowledges that, with respect to the Debt Securities
held by a WPSR Trust or a Trustee of a WPSR Trust, if the Property Trustee of
such WPSR Trust fails to enforce its rights under this Indenture as the holder
of the series of Debt Securities held as the assets of such WPSR Trust, the
holders of the Trust Preferred Securities of such WPSR Trust may institute
legal proceedings directly against the Company to ensure such rights under the
Indenture without first instituting any legal proceedings against such
Property Trustee or any other Person.
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.1. Certain Duties and Responsibilities of Trustee.
----------------------------------------------
(a) The Trustee, prior to the occurrence of an Event of Default
with respect to the Debt Securities of a series and after the curing of all
Events of Default with respect to the Debt Securities of that series that may
have occurred, shall undertake to perform with respect to the Debt Securities
of such series such duties and only such duties as are specifically set forth
in this Indenture, and no implied covenants shall be read into this Indenture
against the Trustee. In case an Event of Default with respect to the Debt
Securities of a series has occurred (that has not been cured or waived), the
Trustee shall exercise with respect to Debt Securities of that series such of
the rights and powers vested in it by this Indenture, and use the same degree
of care and skill in their exercise, as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs.
(b) 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) prior to the occurrence of an Event of Default with respect
to the Debt Securities of a series and after the curing or waiving of
all such Events of Default with respect to that series that may have
occurred:
27
(A) the duties and obligations of the Trustee shall, with
respect to the Debt Securities of such series, be determined solely by the
express provisions of this Indenture, and the Trustee shall not be liable with
respect to the Debt Securities of such series except for the performance of
such duties and obligations as are specifically set forth in this Indenture,
and no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(B) in the absence of bad faith on the part of the Trustee, the
Trustee may with respect to the Debt Securities of such series conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon any 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 that by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the requirement
of this Indenture;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of
the Trustee, 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 not less than a majority in principal amount
of the Debt Securities of any series at the time Outstanding 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 Debt
Securities of that series; and
(4) None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or
in the exercise of any of its rights or powers, if there is reasonable
ground for believing that the repayment of such funds or liability is
not reasonably assured to it under the terms of this Indenture or
adequate indemnity against such risk is not reasonably assured to it.
SECTION 7.2. Certain Rights of Trustee.
-------------------------
Except as otherwise provided in Section 7.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
security 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, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Board Resolution or an
Officers' Certificate (unless other evidence in respect thereof is
specifically prescribed herein);
(c) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted hereunder in good faith and in reliance thereon;
28
(d) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders, pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that may be incurred therein or thereby; nothing contained herein shall,
however, relieve the Trustee of the obligation, upon the occurrence of an
Event of Default with respect to a series of the Debt Securities (that has not
been cured or waived) to exercise with respect to Debt Securities of that
series such of the rights and powers vested in it by this Indenture, and to
use the same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his own
affairs;
(e) the Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Indenture;
(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, consent, order, approval, bond,
security, or other papers or documents, unless requested in writing so to do
by the holders of not less than a majority in principal amount of the
Outstanding Debt Securities of the particular series affected thereby
(determined as provided in Section 8.4); provided, however, that if the
-------- -------
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such costs, expenses or liabilities as a
condition to so proceeding. The reasonable expense of every such examination
shall be paid by the Company or, if paid by the Trustee, shall be repaid by
the Company upon demand; and
(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.
SECTION 7.3. Trustee Not Responsible for Recitals or Issuance of Debt.
--------------------------------------------------------
(a) The recitals contained herein and in the Debt Securities
shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same.
(b) The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debt Securities.
(c) The Trustee shall not be accountable for the use or
application by the Company of any of the Debt Securities or of the proceeds of
such Debt Securities, or for the use or application of any moneys paid over by
the Trustee in accordance with any provision of this Indenture or established
pursuant to Section 2.1, or for the use or application of any moneys received
by any paying agent other than the Trustee.
SECTION 7.4. May Hold Debt Securities.
------------------------
The Trustee or any paying agent or Security Registrar, in its
individual or any other capacity, may become the owner or pledgee of Debt
Securities with the same rights it would have if it were
29
not Trustee, paying agent or Security Registrar.
SECTION 7.5. Moneys Held in Trust.
--------------------
Subject to the provisions of Section 11.5, all moneys received by
the Trustee shall, until used or applied as herein provided, be held in trust
for the purposes for which they were received, but 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 moneys received by it hereunder except such
as it may agree with the Company to pay thereon. So long as no Event of
Default shall have occurred and be continuing, all interest allowed on any
such moneys shall be paid from time to time upon the written order of the
Company, signed by the Chairman, President or a Vice President or the
Treasurer or an Assistant Treasurer of the Company.
SECTION 7.6. Compensation and Reimbursement.
------------------------------
(a) The Company covenants and agrees to pay to the Trustee, and
the Trustee shall be entitled to, such reasonable compensation (which shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust), as the Company and the Trustee may from time to
time agree in writing, for all services rendered by it in the execution of the
trusts hereby created and in the exercise and performance of any of the powers
and duties hereunder of the Trustee, and, except as otherwise expressly
provided herein, the Company will pay or reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of
its counsel and of all Persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad
faith. The Company also covenants to indemnify the Trustee (and its officers,
agents, directors and employees) for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on the
part of the Trustee and arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself against any claim of liability in the premises.
(b) The obligations of the Company under this Section to
compensate and indemnify the Trustee and to pay or reimburse the Trustee for
expenses, disbursements and advances shall constitute additional indebtedness
hereunder and shall survive the satisfaction and discharge of this Indenture.
Such additional indebtedness shall be secured by a lien prior to that of the
Debt Securities upon all property and funds held or collected by the Trustee
as such, except funds held in trust for the benefit of the holders of
particular Debt Securities.
SECTION 7.7. Reliance on Officers' Certificate.
---------------------------------
Except as otherwise provided in Section 7.1, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking
or suffering or omitting to take any action hereunder, such matter (unless
other evidence in respect thereof be herein specifically prescribed) may, in
the absence of negligence or bad faith on the part of the Trustee, be deemed
to be conclusively proved and established by an Officers' Certificate
delivered to the Trustee, and such certificate, in the absence of negligence
or bad faith on the part of the Trustee, shall be full warrant to the Trustee
for any action taken, suffered or omitted to be taken by it under the
provisions of this Indenture upon the faith thereof.
30
SECTION 7.8. Qualification; Conflicting Interests.
------------------------------------
If the Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee
and the Company shall in all respects comply with the provisions of Section
310(b) of the Trust Indenture Act.
SECTION 7.9. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee with respect to the Debt
Securities issued hereunder which shall at all times be a corporation
organized and doing business under the laws of the United States of America or
any State or Territory thereof or of the District of Columbia, or a
corporation or other Person permitted to act as trustee by the Commission,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least fifty million U.S. dollars
($50,000,000), and subject to supervision or examination by federal, state,
territorial or District of Columbia authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. The Company may not, nor may any Person
directly or indirectly controlling, controlled by, or under common control
with the Company, serve as Trustee. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section, the
Trustee shall resign immediately in the manner and with the effect specified
in Section 7.10.
SECTION 7.10. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) The Trustee or any successor hereafter appointed, may at any
time resign with respect to the Debt Securities of one or more series by
giving written notice thereof to the Company and by transmitting notice of
resignation by mail, first class postage prepaid, to the Securityholders of
such series, as their names and addresses appear upon the Security Register.
Upon receiving such notice of resignation, the Company shall promptly appoint
a successor trustee with respect to Debt Securities of such series by written
instrument, in duplicate, executed by order of the Board of Directors, one
copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor trustee. If no successor trustee shall have been so
appointed and have accepted appointment within 30 days after the mailing 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 Debt Securities of such series, or any Securityholder of that series who
has been a bona fide holder of a Debt Security or Debt Securities for at least
six months may, subject to the provisions of Section 6.8, on behalf of himself
and all others similarly situated, petition any such court for the appointment
of a successor trustee. Such court may thereupon after such notice, if any,
as it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any one of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of
Section 7.8 after written request therefor by the Company or by any
Securityholder who has been a bona fide holder of a Debt Security or
Debt Securities for at least six months; or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 7.9 and shall fail to resign after written request
therefor by the Company or by any such Securityholder;
31
or
(3) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy
proceeding, or a receiver of the Trustee or of its property shall be
appointed or consented to, 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, the
Company may remove the Trustee with respect to all Debt Securities and
appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to
the successor trustee, or, subject to the provisions of Section 6.8,
unless the Trustee's duty to resign is stayed as provided herein, any
Securityholder who has been a bona fide holder of a Debt Security or
Debt Securities for at least six months may, on behalf of that holder
and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a
successor trustee. Such court may thereupon after such notice, if any,
as it may deem proper and prescribe, remove the Trustee and appoint a
successor trustee.
(c) The holders of a majority in aggregate principal amount of
the Debt Securities of any series at the time Outstanding may at any time
remove the Trustee with respect to such series by so notifying the Trustee and
the Company and may appoint a successor Trustee for such series with the
consent of the Company.
(d) Any resignation or removal of the Trustee and appointment of
a successor trustee with respect to the Debt Securities of a series pursuant
to any of the provisions of this Section shall become effective upon
acceptance of appointment by the successor trustee as provided in Section
7.11.
(e) Any successor trustee appointed pursuant to this Section may
be appointed with respect to the Debt Securities of one or more series or all
of such series, and at any time there shall be only one Trustee with respect
to the Debt Securities of any particular series.
SECTION 7.11. Acceptance of Appointment By Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor trustee
with respect to all Debt 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 Debt Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor trustee with respect to the
Debt 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 Debt
32
Securities of that or those series to which the appointment of such successor
trustee relates, (2) 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 Debt 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, 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 that no Trustee shall be responsible for any act or failure to act
on the part of any other Trustee hereunder; 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, such
retiring Trustee shall with respect to the Debt Securities of that or those
series to which the appointment of such successor trustee relates have no
further responsibility for the exercise of rights and powers or for the
performance of the duties and obligations vested in the Trustee under this
Indenture, 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 Debt 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, to the extent
contemplated by such supplemental indenture, the property and money held by
such retiring Trustee hereunder with respect to the Debt Securities of that or
those series to which the appointment of such successor trustee relates.
(c) Upon request of any such successor trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor trustee shall accept its appointment unless at
the time of such acceptance such successor trustee shall be qualified and
eligible under this Article.
(e) Upon acceptance of appointment by a successor trustee as
provided in this Section, the Company shall transmit notice of the succession
of such trustee hereunder by mail, first class postage prepaid, to the
Securityholders, as their names and addresses appear upon the Security
Register. If the Company fails to transmit such notice within ten days after
acceptance of appointment by the successor trustee, the successor trustee
shall cause such notice to be transmitted at the expense of the Company.
SECTION 7.12. 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 the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided that such
-------- ----
corporation shall be qualified under the provisions of Section 7.8 and
eligible under the provisions of Section 7.9, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding. In case any Debt 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 Debt
Securities so authenticated with the same effect as if such successor trustee
had itself authenticated such Debt Securities.
33
SECTION 7.13. Preferential Collection of Claims Against the Company.
-----------------------------------------------------
The Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship described in Section 311(b)
of the Trust Indenture Act. A Trustee who has resigned or been removed shall
be subject to Section 311(a) of the Trust Indenture Act to the extent included
therein.
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
SECTION 8.1. Evidence of Action by Securityholders.
-------------------------------------
Whenever in this Indenture it is provided that the holders of a
majority or specified percentage in aggregate principal amount of the Debt
Securities of a particular series may take any action (including the making of
any demand or request, the giving of any notice, consent or waiver or the
taking of any other action), the fact that at the time of taking any such
action the holders of such majority or specified percentage of that series
have joined therein may be evidenced by any instrument or any number of
instruments of similar tenor executed by such holders of Debt Securities of
that series in Person or by agent or proxy appointed in writing.
If the Company shall solicit from the Securityholders of any
series any request, demand, authorization, direction, notice, consent, waiver
or other action, the Company may, at its option, as evidenced by an Officers'
Certificate, fix in advance a record date for such series for the
determination of Securityholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action, but the
Company shall have no obligation to do so. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or
other action may be given before or after the record date, but only the
Securityholders of record at the close of business on the record date shall be
deemed to be Securityholders for the purposes of determining whether
Securityholders of the requisite proportion of Outstanding Debt Securities of
that series have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action, and for
that purpose the Outstanding Debt Securities of that series shall be computed
as of the record date; provided, however, that no such authorization,
-------- -------
agreement or consent by such Securityholders on the record date shall be
deemed effective unless it shall become effective pursuant to the provisions
of this Indenture not later than six months after the record date.
SECTION 8.2. Proof of Execution by Securityholders.
-------------------------------------
Subject to the provisions of Section 7.1, proof of the execution
of any instrument by a Securityholder (such proof will not require
notarization) or his agent or proxy and proof of the holding by any Person of
any of the Debt Securities shall be sufficient if made in the following
manner:
(a) The fact and date of the execution by any such Person of any
instrument may be proved in any reasonable manner acceptable to the Trustee.
(b) The ownership of Debt Securities shall be proved by the
Security Register of such Debt Securities or by a certificate of the Security
Registrar thereof.
34
(c) The Trustee may require such additional proof of any matter
referred to in this Section as it shall deem necessary.
SECTION 8.3. Who May be Deemed Owners.
------------------------
Prior to the due presentment for registration of transfer of any
Debt Security, the Company, the Trustee, any paying agent and any Security
Registrar may deem and treat the Person in whose name such Debt Security shall
be registered upon the books of the Company as the absolute owner of such Debt
Security (whether or not such Debt Security shall be overdue and
notwithstanding any notice of ownership or writing thereon made by anyone
other than the Security Registrar) for the purpose of receiving payment of or
on account of the principal of, premium, if any, and (subject to Section 2.3)
interest on such Debt Security and for all other purposes; and neither the
Company nor the Trustee nor any paying agent nor any Security Registrar shall
be affected by any notice to the contrary.
SECTION 8.4. Certain Debt Securities Owned by Company Disregarded.
----------------------------------------------------
In determining whether the holders of the requisite aggregate
principal amount of Debt Securities of a particular series have concurred in
any direction, consent or waiver under this Indenture, the Debt Securities of
that series that are owned by the Company or any other obligor on the Debt
Securities of that series or by any Person directly or indirectly controlling
or controlled by or under common control with the Company or any other obligor
on the Debt Securities of that series (other than a WPSR Trust) shall be
disregarded and deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, consent or waiver, only
Debt Securities of such series that the Trustee actually knows are so owned
shall be so disregarded. The Debt Securities so owned that have been pledged
in good faith may be regarded as Outstanding for the purposes of this Section,
if the pledgee shall establish to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Debt Securities and that the
pledgee is not a Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company or any such other
obligor. In case of a dispute as to such right, any decision by the Trustee
taken upon the advice of counsel shall be full protection to the Trustee.
SECTION 8.5. Actions Binding on Future Securityholders.
-----------------------------------------
At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 8.1, of the taking of any action by the
holders of a majority or specified percentage in aggregate principal amount of
the Debt Securities of a particular series in connection with such action, any
holder of a Debt Security of that series that is shown by the evidence to be
included in the Debt Securities the holders of which have consented to such
action may, by filing written notice with the Trustee, and upon proof of
holding as provided in Section 8.2, revoke such action so far as concerns such
Debt Security. Except as aforesaid, any such action taken by the holder of any
Debt Security shall be conclusive and binding upon such holder and upon all
future holders and owners of such Debt Security, and of any Debt Security
issued in exchange therefor, on registration of transfer thereof or in place
thereof, irrespective of whether or not any notation in regard thereto is made
upon such Debt Security. Any action taken by the holders of a majority or
specified percentage in aggregate principal amount of the Debt Securities of a
particular series in connection with such action shall be conclusively binding
upon the Company, the Trustee and the holders of all the Debt Securities of
that series.
35
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures Without the Consent of Securityholders.
--------------------------------------------------------------
In addition to any supplemental indenture otherwise authorized by
this Indenture, the Company and the Trustee may from time to time and at any
time enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act as then in effect),
without the consent of the Securityholders, for one or more of the following
purposes:
(a) to cure any ambiguity, defect or inconsistency herein or in
the Debt Securities of any series;
(b) to comply with Article X;
(c) to provide for uncertificated Debt Securities in addition to
or in place of certificated Debt Securities;
(d) to add to the covenants of the Company for the benefit of the
holders of all or any series of Debt Securities (and if such covenants are to
be for the benefit of less than all series of Debt 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;
(e) to add to, delete from, or revise the conditions, limitations
and restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Debt Securities, as herein set forth;
(f) to make any change that does not adversely affect the rights
of any Securityholder in any material respect; or
(g) to provide for the issuance of and establish the form and
terms and conditions of the Debt Securities of any series as provided in
Section 2.1, to establish the form of any certifications required to be
furnished pursuant to the terms of this Indenture or any series of Debt
Securities, or to add to the rights of the holders of any series of Debt
Securities.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, and to make any further
appropriate agreements and stipulations that may be therein contained, but the
Trustee shall not be obligated to enter into any such supplemental indenture
that affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed by the Company and the Trustee without the consent of
the holders of any of the Debt Securities at the time Outstanding
notwithstanding any of the provisions of Section 9.2.
SECTION 9.2. Supplemental Indentures With Consent of Securityholders.
-------------------------------------------------------
With the consent (evidenced as provided in Section 8.1) of the
holders of not less than a
36
majority in aggregate principal amount of the Debt Securities of each series
affected by such supplemental indenture or indentures at the time Outstanding,
the Company, when authorized by a Board Resolution, and the Trustee may from
time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act as then in effect) for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any manner not
covered by Section 9.1 the rights of the holders of the Debt Securities of
such series under this Indenture; provided, however, that no such supplemental
-------- -------
indenture shall, without the consent of the holders of each Debt Security then
Outstanding and affected thereby, (i) extend the fixed maturity of any Debt
Securities of any series, or reduce the principal amount thereof, or reduce
the rate or extend the time of payment of interest thereon, or reduce any
premium payable upon the redemption thereof or (ii) reduce the aforesaid
percentage of Debt Securities, the holders of which are required to consent to
any such supplemental indenture.
It shall not be necessary for the consent of the Securityholders
of any series affected thereby under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if
such consent shall approve the substance thereof.
SECTION 9.3. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture pursuant to the
provisions of this Article or of Section 10.1, this Indenture shall, with
respect to such series, be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the holders of Debt Securities of the series affected thereby
shall thereafter be determined, exercised and enforced hereunder subject in
all respects to such modifications and amendments, and all the terms and
conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
SECTION 9.4. Debt Securities Affected by Supplemental Indentures.
---------------------------------------------------
Debt Securities of any series, affected by a supplemental
indenture, authenticated and delivered after the execution of such
supplemental indenture pursuant to the provisions of this Article or of
Section 10.1, may bear a notation in form approved by the Company, provided
such form meets the requirements of any securities exchange upon which such
series may be listed, as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Debt Securities of that
series so modified as to conform, in the opinion of the Board of Directors of
the Company, to any modification of this Indenture contained in any such
supplemental indenture may be prepared by the Company, authenticated by the
Trustee and delivered in exchange for the Debt Securities of that series then
Outstanding.
SECTION 9.5. Execution of Supplemental Indentures.
------------------------------------
Upon the request of the Company, accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders required
to consent thereto as aforesaid, the Trustee shall join with the Company in
the execution of such supplemental indenture unless such supplemental
indenture affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion but
shall not be obligated to enter into such supplemental indenture. The
Trustee, subject to the
37
provisions of Section 7.1, may receive an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant to this Article is
authorized or permitted by, and conforms to, the terms of this Article and
that it is proper for the Trustee under the provisions of this Article to join
in the execution thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall transmit by mail, first class postage prepaid, a notice, setting forth
in general terms the substance of such supplemental indenture, to the
Securityholders of all series affected thereby as their names and addresses
appear upon the Security Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
ARTICLE X
SUCCESSOR CORPORATION
SECTION 10.1. Company May Consolidate, Etc.
----------------------------
Nothing contained in this Indenture or in any of the Debt
Securities shall prevent any consolidation or merger of the Company with or
into any other corporation or corporations (whether or not affiliated with the
Company), or successive consolidations or mergers in which the Company or its
successor or successors shall be a party or parties, or shall prevent any
sale, conveyance, transfer or other disposition of the property of the Company
or its successor or successors as an entirety, or substantially as an
entirety, to any other corporation (whether or not affiliated with the Company
or its successor or successors) authorized to acquire and operate the same;
provided, however, that (i) the entity formed by such consolidation, or into
-------- -------
which the Company shall have been merged, or which shall have acquired such
property (the "successor corporation") shall be a corporation organized under
a state of the United States or the District of Columbia, (ii) upon such
consolidation, merger, sale, conveyance, transfer or other disposition, the
successor corporation shall expressly assume, by supplemental indenture (which
shall conform to the provisions of the Trust Indenture Act, as then in
effect), satisfactory in form to the Trustee and executed and delivered to the
Trustee, the due and punctual payment of the principal of (premium, if any)
and interest on all of the Debt Securities of all series in accordance with
the terms of each series, according to their tenor and the due and punctual
performance and observance of all the covenants and conditions of this
Indenture with respect to each series or established with respect to such
series pursuant to Section 2.1 to be kept or performed by the Company, and
(iii) immediately following such consolidation, merger, sale, conveyance,
transfer or other disposition, no Event of Default and no event which, after
notice or lapse of time, or both, would become an Event of Default shall have
occurred and be continuing.
SECTION 10.2 Successor Corporation Substituted.
---------------------------------
(a) In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition and upon the assumption by the successor
corporation, by supplemental indenture, executed and delivered to the Trustee
and satisfactory in form to the Trustee, of the due and punctual payment of
the principal of, premium, if any, and interest on all of the Debt Securities
of all series Outstanding and the due and punctual performance of all of the
covenants and conditions of this Indenture or established with respect to each
series of the Debt Securities pursuant to Section 2.1 to be performed by the
Company, with respect to each series, such successor corporation shall succeed
to and be substituted for the Company, with the same effect as if it had been
named as the Company herein and thereupon the Company shall be relieved
38
of all obligations and covenants under this Indenture and the Debt Securities.
(b) In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition, such changes in phraseology and form (but not
in substance) may be made in the Debt Securities thereafter to be issued as
may be appropriate.
(c) Nothing contained in this Indenture or in any of the Debt
Securities shall prevent the Company from merging any other Person (whether or
not affiliated with the Company) into itself or acquiring by purchase or
otherwise all or any part of the property of any other Person (whether or not
affiliated with the Company).
SECTION 10.3 Evidence of Consolidation, Etc. to Trustee.
------------------------------------------
The Trustee, subject to the provisions of Section 7.1, may receive
an Opinion of Counsel as conclusive evidence that any such consolidation,
merger, sale, conveyance, transfer or other disposition, and any such
assumption, comply with the provisions of this Article.
39
ARTICLE XI
SATISFACTION AND DISCHARGE
SECTION 11.1. Satisfaction and Discharge of Indenture.
---------------------------------------
If at any time: (a) the Company shall have delivered to the
Trustee for cancellation all Debt Securities of a series theretofore
authenticated (other than any Debt Securities that shall have been destroyed,
lost or stolen and that shall have been replaced or paid as provided in
Section 2.7 and Debt Securities for whose payment money or Governmental
Obligations have theretofore been deposited in trust or segregated and held in
trust by the Company (and thereupon repaid to the Company or discharged from
such trust, as provided in Section 11.5)); or (b) all such Debt Securities of
a particular series not theretofore delivered to the Trustee for cancellation
shall have become due and payable, or are by their terms to become due and
payable within one year or are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of notice of
redemption, and the Company shall deposit or cause to be deposited with the
Trustee as trust funds the entire amount in moneys or Governmental Obligations
or a combination thereof, sufficient in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay at maturity or upon redemption all
Debt Securities of that series not theretofore delivered to the Trustee for
cancellation, including principal (and premium, if any) and interest due or to
become due to such date of maturity or date fixed for redemption, as the case
may be, and if the Company shall also pay or cause to be paid all other sums
payable hereunder with respect to such series by the Company; and if the
Company has delivered to the Trustee an Opinion of Counsel based on the fact
that (x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (y) since the date hereof, there has been
a change in the applicable United States federal income tax law, in either
case to the effect that, and such opinion shall confirm that, the holders of
the ▇▇▇ Securities of such series will not recognize income, gain or loss for
United States federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to United States federal income
tax on the same amount and in the same manner and at the same times, as would
have been the case if such deposit, defeasance and discharge had not occurred,
then this Indenture shall thereupon cease to be of further effect with respect
to such series except for the provisions of Sections 2.3, 2.5, 2.7, 4.1, 4.2,
4.3 and 7.10, that shall survive until the date of maturity or redemption
date, as the case may be, and Sections 7.6 and 11.5, that shall survive to
such date and thereafter, and the Trustee, on demand of the Company and at the
cost and expense of the Company, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture with respect to
such series.
SECTION 11.2. Discharge of Obligations.
------------------------
If at any time all Debt Securities of a particular series not
heretofore delivered to the Trustee for cancellation or that have not become
due and payable as described in Section 11.1 shall have been paid by the
Company by depositing irrevocably with the Trustee as trust funds the entire
amount in moneys or Governmental Obligations, or a combination thereof,
sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof, delivered to
the Trustee to pay at maturity or upon redemption under arrangements
satisfactory to the Trustee for the giving of notice of redemption all such
Debt Securities of that series not theretofore delivered to the Trustee for
cancellation, including principal (and premium, if any) and interest due or to
become due to such date of maturity or date fixed for redemption, as the case
may be, and if the Company shall also pay or cause to be paid all other sums
payable hereunder by the Company with respect to such series, then after the
date such
40
moneys or Governmental Obligations, as the case may be, are deposited with the
Trustee then, and if the Company has delivered to the Trustee an Opinion of
Counsel based on the fact that (x) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling or (y) since the date
hereof, there has been a change in the applicable United States federal income
tax law, in either case to the effect that, and such opinion shall confirm
that, the holders of the Debt Securities of such series will not recognize
income, gain or loss for United States federal income tax purposes as a result
of such deposit, defeasance and discharge and will be subject to United States
federal income tax on the same amount and in the same manner and at the same
times, as would have been the case if such deposit, defeasance and discharge
had not occurred, the obligations of the Company, under this Indenture with
respect to such series shall cease to be of further effect excpt for the
provisions of Sections 2.3, 2.5, 2.7, 4.1, 4.2, 4.3, and 7.10 hereof that
shall survive until such Debt Securities shall mature and be paid, and
Sections 7.6 and 11.5 shall survive to such date and thereafter.
SECTION 11.3. Deposited Moneys to be Held In Trust.
------------------------------------
All moneys or Governmental Obligations deposited with the Trustee
pursuant to Sections 11.1 or 11.2 shall be held in trust and shall be
available for payment as due, either directly or through any paying agent
(including the Company acting as its own paying agent), to the holders of the
particular series of Debt Securities for the payment or redemption of which
such moneys or Governmental Obligations have been deposited with the Trustee.
SECTION 11.4. Payment of Moneys Held by Paying Agents.
---------------------------------------
In connection with the satisfaction and discharge of this
Indenture, or the Company's obligation with respect to the Debt Securities of
a series, all moneys or Governmental Obligations then held by any paying agent
under the provisions of this Indenture shall, upon demand of the Company, be
paid to the Trustee and thereupon such paying agent shall be released from all
further liability with respect to such moneys or Governmental Obligations.
SECTION 11.5. Repayment to Company.
--------------------
Any moneys or Governmental Obligations deposited with any paying
agent or the Trustee, or then held by the Company, in trust for payment of
principal of or premium or interest on the Debt Securities of a particular
series that are not applied but remain unclaimed by the holders of such Debt
Securities for at least two years after the date upon which the principal of
(and premium, if any) or interest on such Debt Securities shall have
respectively become due and payable, shall be repaid to the Company on May 31
of each year or (if then held by the Company) shall be discharged from such
trust; and thereupon the paying agent and the Trustee shall be released from
all further liability with respect to such moneys or Governmental Obligations,
and the holder of any of the Debt Securities entitled to receive such payment
shall thereafter, as an unsecured general creditor, look only to the Company
for the payment thereof.
41
ARTICLE XII
IMMUNITY OF INCORPORATORS, SHAREHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.1. No Recourse.
-----------
No recourse under or upon any obligation, covenant or agreement of
this Indenture, or of any Debt Security, or for any claim based thereon or
otherwise in respect thereof, shall be had against any incorporator,
shareholder, officer or director, past, present or future as such, of the
Company or of any predecessor or successor corporation, either directly or
through the Company or any such predecessor or successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise; it being expressly understood that
this Indenture and the obligations issued hereunder are solely corporate
obligations, and that no such personal liability whatever shall attach to, or
is or shall be incurred by, the incorporators, shareholders, officers or
directors as such, of the Company or of any predecessor or successor
corporation, or any of them, because of the creation of the indebtedness
hereby authorized, or under or by reason of the obligations, covenants or
agreements contained in this Indenture or in any of the Debt Securities or
implied herefrom; and that any and all such personal liability of every name
and nature, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against, every such
incorporator, shareholder, officer or director as such, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Debt Securities or implied therefrom, are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issuance of such Debt Securities.
ARTICLE XIII
SUBORDINATION OF DEBT SECURITIES
SECTION 13.1. Agreement to Subordinate.
------------------------
The Company covenants and agrees, and each holder of Debt
Securities issued hereunder, by such Securityholder's acceptance thereof,
likewise covenants and agrees, that all Debt Securities shall be issued
subject to the provisions of this Article XIII, and each Holder of a Debt
Security, whether upon original issue or upon transfer or assignment thereof,
accepts and agrees to be bound by such provisions.
The payment by the Company of the principal of, premium, if any,
and interest on all Debt Securities issued hereunder shall, to the extent and
in the manner hereinafter set forth, be subordinated and junior in right of
payment to the prior payment in full of all Senior Indebtedness of the
Company, whether outstanding at the date of this Indenture or thereafter
incurred. Senior Indebtedness shall continue to be Senior Indebtedness and
entitled to the benefits of this Article XIII irrespective of any amendment,
modification or waiver of any term of such Senior Indebtedness.
42
No provision of this Article XIII shall prevent the occurrence of
any default or Event of Default hereunder.
SECTION 13.2. Default on Senior Indebtedness.
------------------------------
In the event that any default by the Company in the payment of
principal, premium, interest or any other payment due on any Senior
Indebtedness of the Company has occurred and is continuing and any applicable
grace period with respect to such default has expired and such default has not
been cured or waived or ceased to exist, or in the event that the maturity of
any Senior Indebtedness of the Company has been accelerated because of a
default, then, in either case, no payment shall be made by the Company with
respect to the principal (including redemption and sinking fund payments) of,
or premium, if any, or interest on the Debt Securities.
In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee when such payment is prohibited by the
preceding paragraph of this Section 13.2, such payment shall be held in trust
for the benefit of, and shall be paid over or delivered to, the holders of
Senior Indebtedness or their respective representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior Indebtedness
may have been issued, as their respective interests may appear, but only to
the extent that the holders of the Senior Indebtedness (or their
representative or representatives or a trustee) notify the Trustee in writing
within 90 days of such payment of the amounts then due and owing on the Senior
Indebtedness and only the amounts specified in such notice to the Trustee
shall be paid to the holders of Senior Indebtedness.
SECTION 13.3 Liquidation; Dissolution; Bankruptcy.
------------------------------------
Upon any payment by the Company or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution or winding-up or liquidation or reorganization
of the Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due upon all Senior
Indebtedness of the Company shall first be paid in full, or payment thereof
provided for in money in accordance with its terms, before any payment is made
by the Company on account of the principal (and premium, if any) or interest
on the Debt Securities; and upon any such dissolution or winding-up or
liquidation or reorganization, any payment by the Company, or distribution of
assets of the Company of any kind or character, whether in cash, property or
securities, to which the Securityholders or the Trustee would be entitled to
receive from the Company, except for the provisions of this Article XIII,
shall be paid by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or
distribution, or by the Securityholders or by the Trustee under the Indenture
if received by them or it, directly to the holders of Senior Indebtedness of
the Company (pro rata to such holders on the basis of the respective amounts
of Senior Indebtedness held by such holders, as calculated by the Company) or
their representative or representatives, or to the trustee or trustees under
any indenture pursuant to which any instruments evidencing such Senior
Indebtedness may have been issued, as their respective interests may appear,
to the extent necessary to pay such Senior Indebtedness in full, in money or
money's worth, after giving effect to any concurrent payment or distribution
to or for the holders of such Senior Indebtedness, before any payment or
distribution is made to the Securityholders or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, prohibited by the foregoing, shall
43
be received by the Trustee before all Senior Indebtedness of the Company is
paid in full, or provision is made for such payment in money in accordance
with its terms, such payment or distribution shall be held in trust for the
benefit of and shall be paid over or delivered to the holders of such Senior
Indebtedness or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing such
Senior Indebtedness may have been issued, and their respective interests may
appear, as calculated by the Company, for application to the payment of all
Senior Indebtedness of the Company remaining unpaid to the extent necessary to
pay such Senior Indebtedness in full in money in accordance with its terms,
after giving effect to any concurrent payment or distribution to or for the
benefit of the holders of such Senior Indebtedness.
For purposes of this Article XIII, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this
Article XIII with respect to the Debt Securities to the payment of all Senior
Indebtedness of the Company that may at the time be outstanding, provided that
(i) such Senior Indebtedness is assumed by the new corporation, if any,
resulting from any such reorganization or readjustment, and (ii) the rights of
the holders of such Senior Indebtedness are not, without the consent of such
holders, altered by such reorganization or readjustment. The consolidation of
the Company with, or the merger of the Company into, another corporation or
the liquidation or dissolution of the Company following the conveyance or
transfer of its property as an entirety, or substantially as an entirety, to
another corporation upon the terms and conditions provided for in Article X of
this Indenture shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 13.3 if such other corporation
shall, as a part of such consolidation, merger, conveyance or transfer, comply
with the conditions stated in Article X of this Indenture. Nothing in Section
13.2 or in this Section 13.3 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.6 of this Indenture.
SECTION 13.4. Subrogation.
-----------
Subject to the payment in full of all Senior Indebtedness of the
Company, the rights of the Securityholders shall be subrogated to the rights
of the holders of such Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company applicable to
such Senior Indebtedness until the principal of (and premium, if any) and
interest on the Debt Securities shall be paid in full; and, for the purposes
of such subrogation, no payments or distributions to the holders of such
Senior Indebtedness of any cash, property or securities to which the
Securityholders or the Trustee would be entitled except for the provisions of
this Article XIII, and no payment pursuant to the provisions of this Article
XIII to or for the benefit of the holders of such Senior Indebtedness by
Securityholders or the Trustee, shall, as between the Company, its creditors
other than holders of Senior Indebtedness of the Company, and the holders of
the Debt Securities, be deemed to be a payment by the Company to or on account
of such Senior Indebtedness. It is understood that the provisions of this
Article XIII are and are intended solely for the purposes of defining the
relative rights of the holders of the Debt Securities, on the one hand, and
the holders of such Senior Indebtedness on the other hand.
Nothing contained in this Article XIII or elsewhere in this
Indenture or in the Debt Securities is intended to or shall impair, as between
the Company, its creditors other than the holders of Senior Indebtedness of
the Company, and the holders of the Debt Securities, the obligation of the
Company, which is absolute and unconditional, to pay to the holders of the
Debt Securities the principal of (and premium, if any) and interest on the
Debt Securities as and when the same shall become due and payable in
44
accordance with their terms, or is intended to or shall affect the relative
rights of the holders of the Debt Securities and creditors of the Company,
other than the holders of Senior Indebtedness of the Company, nor shall
anything herein or therein prevent the Trustee or the holder of any Debt
Security from exercising all remedies otherwise permitted by applicable law
upon default under the Indenture, subject to the rights, if any, under this
Article XIII of the holders of such Senior Indebtedness in respect of cash,
property or securities of the Company received upon the exercise of any such
remedy.
Upon any payment or distribution of assets of the Company referred
to in this Article XIII, the Trustee, subject to the provisions of Section 7.1
of this Indenture, and the Securityholders shall be entitled to conclusively
rely upon any order or decree made by any court of competent jurisdiction in
which such dissolution, winding-up, liquidation or reorganization proceedings
are pending, or a certificate of the receiver, trustee in bankruptcy,
liquidation trustee, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Securityholders, for the
purposes of ascertaining the Persons entitled to participate in such
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article
XIII.
SECTION 13.5. Trustee to Effectuate Subordination.
-----------------------------------
Each Securityholder by such Securityholder's acceptance thereof
authorizes and directs the Trustee on such Securityholder's behalf to take
such action as may be necessary or appropriate to effectuate the subordination
provided in this Article XIII and appoints the Trustee such Securityholder's
attorney-in-fact for any and all such purposes.
SECTION 13.6. Notice by the Company.
---------------------
The Company shall give prompt written notice to a Responsible
Officer of the Trustee of any fact known to the Company that would prohibit
the making of any payment of monies to or by the Trustee in respect of the
Debt Securities pursuant to the provisions of this Article XIII.
Notwithstanding the provisions of this Article XIII or any other provision of
this Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts that would prohibit the making of any payment of monies
to or by the Trustee in respect of the Debt Securities pursuant to the
provisions of this Article XIII, unless and until a Responsible Officer of the
Trustee shall have received written notice thereof from the Company or a
holder or holders of Senior Indebtedness of the Company or from any trustee
therefor; and before the receipt of any such written notice, the Trustee,
subject to the provisions of Section 7.1 of this Indenture, shall be entitled
in all respects to assume that no such facts exist; provided, however, that if
-------- -------
the Trustee shall not have received the notice provided for in this Section
13.6 at least two Business Days prior to the date upon which by the terms
hereof any money may become payable for any purpose (including, without
limitation, the payment of the principal of (or premium, if any) or interest
on any Debt Security), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive
such money and to apply the same to the purposes for which they were received,
and shall not be affected by any notice to the contrary that may be received
by it within two Business Days prior to such date.
The Trustee, subject to the provisions of Section 7.1 of the
Indenture, shall be entitled to conclusively rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior
Indebtedness of the Company (or a trustee on behalf of such holder), to
establish that such notice has been given by a holder of such Senior
Indebtedness or a trustee on behalf of any such holder or holders. In
45
the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of such Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article XIII, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of such Senior
Indebtedness held by such Person, the extent to which such Person is entitled
to participate in such payment or distribution and any other facts pertinent
to the rights of such Person under this Article XIII, and, if such evidence is
not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
SECTION 13.7. Rights of the Trustee; Holders of Senior Indebtedness.
-----------------------------------------------------
The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article XIII in respect of any Senior
Indebtedness at any time held by it, to the same extent as any other holder of
Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee
of any of its rights as such holder.
With respect to the holders of Senior Indebtedness of the Company,
the Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article XIII, and no implied
covenants or obligations with respect to the holders of such Senior
Indebtedness shall be read into this Indenture or against the Trustee. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of such
Senior Indebtedness and, subject to the provisions of Section 7.1 of this
Indenture, the Trustee shall not be liable to any holder of such Senior
Indebtedness if it shall pay over or deliver to Securityholders, the Company
or any other Person money or assets to which any holder of such Senior
Indebtedness shall be entitled by virtue of this Article XIII or otherwise.
SECTION 13.8. Subordination May Not Be Impaired.
---------------------------------
No right of any present or future holder of any Senior
Indebtedness of the Company to enforce subordination as herein provided shall
be at any time in any way prejudiced or impaired by any act or failure to act
on the part of the Company or by any act or failure to act, in good faith, by
any such holder, or by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge
thereof that any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness of the Company may, at any time
and from time to time, without the consent of or notice to the Trustee or the
Securityholders, without incurring responsibility to the Securityholders and
without impairing or releasing the subordination provided in this Article XIII
or the obligations hereunder of the holders of the Debt Securities to the
holders of such Senior Indebtedness, do any one or more of the following: (i)
change the manner, place or terms of payment or extend the time of payment of,
or renew or alter, such Senior Indebtedness, or otherwise amend or supplement
in any manner such Senior Indebtedness or any instrument evidencing the same
or any agreement under which such Senior Indebtedness is outstanding; (ii)
sell, exchange, release or otherwise deal with any property pledged, mortgaged
or otherwise securing such Senior Indebtedness; (iii) release any Person
liable in any manner for the collection of such Senior Indebtedness; and (iv)
exercise or refrain from exercising any rights against the Company and any
other Person.
46
ARTICLE XIV
MISCELLANEOUS PROVISIONS
SECTION 14.1. Effect on Successors and Assigns.
--------------------------------
All the covenants, stipulations, promises and agreements in this
Indenture contained by or on behalf of the Company shall bind successors and
assigns of the Company, whether so expressed or not.
SECTION 14.2. Actions by Successor.
--------------------
Any act or proceeding by any provision of this Indenture
authorized or required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with like force and
effect by the corresponding board, committee or officer of any corporation
that shall at the time be the lawful successor of the Company.
SECTION 14.3. Surrender of Company Powers.
---------------------------
The Company by instrument in writing executed by authority of 2/3
(two-thirds) of the Board of Directors and delivered to the Trustee may
surrender any of the powers reserved to the Company, and thereupon such power
so surrendered shall terminate both as to the Company and as to any successor
corporation.
SECTION 14.4. Notices.
-------
Except as otherwise expressly provided herein, any notice or
demand that by any provision of this Indenture is required or permitted to be
given or served by the Trustee or by the holders of Debt Securities to or on
the Company may be given or served by being deposited first class postage
prepaid in a post office letterbox addressed (until another address is filed
in writing by the Company with the Trustee), as follows: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇ 54307-9001, Attention:
Treasurer. Any notice, election, request or demand by the Company or any
Securityholder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made in writing at
the Corporate Trust Office of the Trustee.
SECTION 14.5. Governing Law.
-------------
This Indenture and each Debt Security shall be deemed to be a
contract made under the internal laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of said State.
SECTION 14.6. Treatment of the Debt Securities as Debt.
----------------------------------------
It is intended that the Debt Securities will be treated as
indebtedness and not as equity for federal income tax purposes. The
provisions of this Indenture shall be interpreted to further this intention.
47
SECTION 14.7. Compliance Certificates and Opinions.
------------------------------------
(a) Upon any application or demand by the Company to the Trustee
to take any action under any of the provisions of this Indenture, the Company
shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
(b) Each certificate or opinion provided for in this Indenture
and delivered to the Trustee with respect to compliance with a condition or
covenant in this Indenture shall include (1) a statement that the Person
making such certificate or opinion has read such covenant or condition; (2) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based; (3) a statement that, in the opinion of such Person, 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 (4) a statement as to whether or not, in the opinion of
such Person, such condition or covenant has been complied with.
SECTION 14.8. Payments on Business Days.
-------------------------
Except as provided pursuant to Section 2.1 pursuant to a Board
Resolution, and as set forth in an Officers' Certificate, or established in
one or more indentures supplemental to this Indenture, in any case where the
date of maturity of interest or principal of any Debt Security or the date of
redemption of any Debt Security shall not be a Business Day, then payment of
interest or principal (and premium, if any) may be made on the next succeeding
Business Day with the same force and effect as if made on the nominal date of
maturity or redemption, and no interest shall accrue for the period after such
nominal date; except that, if such Business Day is in the next succeeding
calendar year, then such payment shall be made on the immediately preceding
Business Day, as if made on the nominal date of maturity or redemption.
SECTION 14.9. Conflict with Trust Indenture Act.
---------------------------------
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 14.10. Counterparts.
------------
This Indenture may be executed in any number of counterparts, each
of which shall be an original, but such counterparts shall together constitute
but one and the same instrument.
48
SECTION 14.11. Separability.
------------
In case any one or more of the provisions contained in this
Indenture or in the Debt Securities of any series shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
Indenture or of such Debt Securities, but this Indenture and such Debt
Securities shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
SECTION 14.12. Assignment.
----------
The Company will have the right at all times to assign any of its
respective rights or obligations under this Indenture to a direct or indirect
wholly-owned Subsidiary of the Company, provided that, in the event of any
-------- ----
such assignment, the Company will remain liable for all such obligations.
Subject to the foregoing, the Indenture is binding upon and inures to the
benefit of the parties thereto and their respective successors and assigns.
This Indenture may not otherwise be assigned by the parties thereto.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed as of the day and year first above written.
WPS RESOURCES CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman, President and
Chief Executive Officer
STATE STREET BANK AND TRUST COMPANY
not in its individual capacity but solely
as Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
49
STATE OF WISCONSIN )
) SS:
COUNTY OF ▇▇▇▇▇ )
On the 27th day of July, 1998, before me personally came ▇▇▇▇▇ ▇.
▇▇▇▇▇▇ to me known, who, being by me duly sworn, did depose and say that he is
the Chairman, President and Chief Executive Officer of WPS RESOURCES
CORPORATION, one of the corporations described in and which executed the above
instrument, and that he signed his name thereto by authority of the Board of
Directors of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal of
office this 27th day of July, 1998.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Notary Public
STATE OF WISCONSIN )
) SS:
COUNTY OF MILWAUKEE )
On the 29th day of July, 1998, before me personally came ▇▇▇▇ ▇.
▇▇▇▇▇ to me known, who, being by me duly sworn, did depose and say that he is
Vice President of STATE STREET BANK AND TRUST COMPANY, one of the corporations
described in and which executed the above instrument, and that he signed his
name thereto by authority of the Board of Directors of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
seal of office this 29th day of July, 1998.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Notary Public
50