EXHIBIT 4(b)(1)
------------------------------------------------------------------
SOUTHWESTERN ELECTRIC POWER COMPANY,
Issuer
TO
THE BANK OF NEW YORK,
Trustee
---------
Subordinated Indenture
Dated as of September 1, 2003
------------------------------------------------------------------
SOUTHWESTERN ELECTRIC POWER COMPANY
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of _________________
Trust Indenture Act Section Indenture Section
ss.310(a)(1)................................. 909
(a)(2)................................. 909
(a)(3)................................. 915
(a)(4)................................. Not Applicable
(b).................................... 908
910
ss.311(a).................................... 913
(b).................................... 913
(c).................................... Not Applicable
ss.312(a).................................... 1001
(b).................................... 1001
(c).................................... 1001
ss.313(a).................................... 1002
(b)(1)................................. Not Applicable
(b)(2)................................. 1002
(c).................................... 1002
(d).................................... 1002
ss.314(a).................................... 1002
(a)(4)................................. 605
(b).................................... Not Applicable
(c)(1)................................. 102
(c)(2)................................. 102
(c)(3)................................. Not Applicable
(d).................................... Not Applicable
(e).................................... 102
ss.315(a).................................... 901(a)
(b).................................... 902
(c).................................... 901(b)
(d).................................... 901(c)
(d)(1)................................. 901(a)(1), 901(c)(1)
(d)(2)................................. 901(c)(2)
(d)(3)................................. 901(c)(3)
(e).................................... 814
ss.316(a).................................... 812
813
(a)(1)(A).............................. 802
812
(a)(1)(B).............................. 813
(a)(2)................................. Not Applicable
(b).................................... 808
ss.317(a)(1)................................. 803
(a)(2)................................. 804
(b).................................... 603
ss.318(a).................................... 107
SUBORDINATED INDENTURE, dated as of September 1, 2003 among SOUTHWESTERN
ELECTRIC POWER COMPANY, a corporation duly organized and existing under the laws
of the State of Delaware (herein called the "Company"), having its principal
office at ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, and The Bank of New York, a
New York banking corporation, having its principal corporate trust office at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as Trustee (herein called the
"Trustee").
RECITAL 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
subordinated debentures, notes or other evidences of indebtedness (herein called
the "Securities"), to be issued in one or more series as contemplated herein,
and all acts necessary to make this Indenture a valid agreement of the Company,
in accordance with its terms, have been performed.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof (except as otherwise contemplated herein), as follows:
ARTICLE ONE
Definitions And Other Provisions Of General Application
SECTION 101. Definitions
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States of America, and, except as otherwise herein
expressly provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United States of America
at the date of such computation;
(d) any reference to an "Article" or a "Section" refers to an
Article or a Section, as the case may be, of this Indenture; and
(e) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Nine, are defined in that
Article.
"Act" when used with respect to any Holder of a Security, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct generally the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any Person or Persons authorized by the
Trustee to act on behalf of the Trustee to authenticate the Securities of one or
more series.
"Authorized Officer" means the Chairman of the Board, the President, any
Vice President, the Treasurer, or any other Person duly authorized by the
Company, as the case requires, to act in respect of matters relating to this
Indenture.
"Board of Directors" means either the board of directors of the Company,
as the case requires, or any committee of that board duly authorized to act in
respect of matters relating to this Indenture.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company, as the case requires, to have been
duly adopted by the Board of Directors of the Company, as the case requires, and
to be in full force and effect on the date of such certification, and delivered
to the Trustee.
"Business Day", when used with respect to a Place of Payment or any other
particular location specified in the Securities or this Indenture, means any
day, other than a Saturday or Sunday, which is not a day on which banking
institutions or trust companies in such Place of Payment or other location are
generally authorized or required by law, regulation or executive order to remain
closed, except as may be otherwise specified as contemplated by Section 301.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
date of execution and delivery of this Indenture such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body, if any, performing such duties at such time.
"Common Securities" means any common trust interests issued by a Trust or
similar securities issued by permitted successors to such Trust in accordance
with the Trust Agreement pertaining to such Trust.
"Company" means the Person named as the "Company" in the first paragraph
of this Indenture until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Order" or "Company Request" mean, respectively, a written order
or request, as the case may be, signed in the name of the Company by an
Authorized Officer and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which office at the date of execution of this Indenture is located at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"corporation" means a corporation, association, company, joint stock
company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1403.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1402.
"Discount Security" means any Security which provides for an amount less
than the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 802.
"Dollar" or "$"means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"Eligible Obligations" means:
(a) with respect to Securities denominated in Dollars, Government
Obligations; or
(b) with respect to Securities denominated in a currency other than
Dollars or in a composite currency, such other obligations or instruments as
shall be specified with respect to such Securities, as contemplated by Section
301.
"Event of Default" has the meaning specified in Section 801.
"Exchange Act" means the Securities Exchange Act of 1934 and the rules and
regulations promulgated thereunder, as amended from time to time.
"Government Obligations" means securities which are (a) (i) direct
obligations of the United States where the payment or payments thereunder are
supported by the full faith and credit of the United States or (ii) obligations
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States where the timely payment or payments
thereunder are unconditionally guaranteed as a full faith and credit obligation
by the United States or (b) depository receipts issued by a bank (as defined in
Section 3(a)(2) of the Securities Act) as custodian with respect to any such
Government Obligation or a specific payment of interest on or principal of or
other amount with respect to any such Government Obligation held by such
custodian for the account of the holder of a depository receipt, provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the Government Obligation or
the specific payment of interest on or principal of or other amount with respect
to the Government Obligation evidenced by such depository receipt.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Indenture and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 301.
"interest", when used with respect to a Discount Security which by its
terms bears interest only after Maturity, means interest payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as provided in such Security or in this Indenture, whether at the
Stated Maturity, by declaration of acceleration, upon call for redemption or
otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 801(c).
"Officer's Certificate" means a certificate signed by an Authorized
Officer of the Company or the Guarantor, as the case requires, and delivered to
the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company or the Guarantor, and who shall be acceptable to the
Trustee.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(a) Securities theretofore canceled or delivered to the Trustee for
cancellation;
(b) Securities deemed to have been paid for all purposes of this
Indenture in accordance with Section 701 (whether or not the Company's
indebtedness in respect thereof shall be satisfied and discharged for any other
purpose); and
(c) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Trustee proof satisfactory to it
and the Company that such Securities are held by a bona fide purchaser in whose
hands such Securities are valid obligations of the Company;
provided, however, that in determining whether or not the Holders of the
requisite principal amount of the Securities Outstanding under this Indenture,
or the Outstanding Securities of any series or Tranche, have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or whether
or not a quorum is present at a meeting of Holders of Securities,
(x) Securities owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor
(unless the Company, such Affiliate or such obligor owns all Securities
Outstanding under this Indenture, or all Outstanding Securities of each
such series and each such Tranche, as the case may be, determined without
regard to this clause (x)) shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver or upon any such determination as to
the presence of a quorum, only Securities which the Trustee knows to be so
owned shall be so disregarded; provided, however, that Securities so owned
which have been pledged in good faith may be regarded as Outstanding if it
is established to the reasonable satisfaction of the Trustee that the
pledgee, and not the Company, or any such other obligor or Affiliate of
either thereof, has the right so to act with respect to such Securities
and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor;
(y) the principal amount of a Discount Security that shall be
deemed to be Outstanding for such purposes shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity thereof
pursuant to Section 802; and
(z) the principal amount of any Security which is denominated
in a currency other than Dollars or in a composite currency that shall be
deemed to be Outstanding for such purposes shall be the amount of Dollars
which could have been purchased by the principal amount (or, in the case
of a Discount Security, the Dollar equivalent on the date determined as
set forth below of the amount determined as provided in (y) above) of such
currency or composite currency evidenced by such Security, in each such
case certified to the Trustee in an Officer's Certificate, based (i) on
the average of the mean of the buying and selling spot rates quoted by
three banks which are members of the New York Clearing House Association
selected by the Company in effect at 11:00 a.m. (New York time) in The
City of New York on the fifth Business Day preceding any such
determination, or (ii) if on such fifth Business Day it shall not be
possible or practicable to obtain such quotations from such three banks,
on such other quotations or alternative methods of determination which
shall be as consistent as practicable with the method set forth in (i)
above;
provided, further, that in the case of any Security the principal of which is
payable from time to time without presentment or surrender, the principal amount
of such Security that shall be deemed to be Outstanding at any time for all
purposes of this Indenture shall be the original principal amount thereof less
the aggregate amount of principal thereof theretofore paid.
"Paying Agent" means any Person, including the Company, authorized by the
Company to pay the principal of, and premium, if any, or interest, on any
Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of a series from time
to time any or all of the specific terms of which Securities, including without
limitation the rate or rates of interest, thereon, the Stated Maturity or
Maturities thereof and the redemption provisions, if any, with respect thereto,
are to be determined by the Company or its agents from time to time subsequent
to the initial request for the authentication and delivery of such Securities by
the Trustee, as contemplated in Section 301 and clause (b) of Section 303.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, trust or unincorporated organization or any government
or any political subdivision, instrumentality or agency thereof.
"Place of Payment", when used with respect to the Securities of any
series, or Tranche thereof, means the place or places, specified as contemplated
by Section 301, at which, subject to Section 602, principal of and premium, if
any, and interest on the Securities of such series or Tranche are payable.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Securities" means any preferred trust interests issued by a
Trust or similar securities issued by permitted successors to such Trust in
accordance with the Trust Agreement pertaining to such Trust.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Required Currency" has the meaning specified in Section 311.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any senior trust officer, any trust officer or assistant
trust officer, the controller or any assistant controller or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer of the Trustee to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any securities authenticated and delivered under
this Indenture.
"Securities Act" means the Securities Act of 1933, and the rules and
regulations promulgated thereunder, as amended from time to time.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Senior Indebtedness", when used with respect to the Company, means all
obligations (other than non-recourse obligations and the indebtedness issued
under this Indenture) of, or guaranteed or assumed by, the Company, as the case
may be, for borrowed money, including both senior and subordinated indebtedness
for borrowed money (other than the Securities and the Outstanding Junior
Subordinated Debentures issued pursuant to the Indenture dated as of May 1,
1997), or for the payment of money relating to any lease which is capitalized on
the consolidated balance sheet of the Company, as the case may be, and its
subsidiaries in accordance with generally accepted accounting principles as in
effect from time to time, or evidenced by bonds, debentures, notes or other
similar instruments, and in each case, amendments, renewals, extensions,
modifications and refundings of any such indebtedness or obligations, whether
existing as of the date of this Indenture or subsequently incurred by the
Company, as the case may be, unless, in the case of any particular indebtedness,
renewal, extension or refunding, the instrument creating or evidencing the same
or the assumption or guarantee of the same expressly provides that such
indebtedness, renewal, extension or refunding is not superior in right of
payment to or is pari passu with the Securities; provided that the following
shall not constitute Senior Indebtedness: (a) indebtedness for goods or
materials purchased in the ordinary course of business or for services obtained
in the ordinary course of business or indebtedness consisting of trade payables,
(b) any obligations of the Company to any of its subsidiaries, (c) obligations
of the Company to an employee, (d) any obligations in respect of debt securities
issued to any trust, or a trustee of such trust, partnership or other entity
affiliated with the Company that is a financing entity of the Company in
connection with the issuance by such financing entity of securities that are
similar to the Preferred Securities, or (e) indebtedness that is subordinated to
any obligation of the type specified as Senior Indebtedness above..
"Special Record Date" for the payment of any Defaulted Interest on the
Securities of any series means a date fixed by the Trustee pursuant to Section
307.
"Stated Interest Rate" means a rate (whether fixed or variable) at which
an obligation by its terms is stated to bear simple interest. Any calculation or
other determination to be made under this Indenture by reference to the Stated
Interest Rate on a Security shall be made without regard to the effective
interest cost to the Company of such Security and without regard to the Stated
Interest Rate on, or the effective cost to the Company of, any other
indebtedness the Company's obligations in respect of which are evidenced or
secured in whole or in part by such Security.
"Stated Maturity", when used with respect to any Security or any
obligation or any installment of principal thereof or interest thereon, means
the date on which the principal of such obligation or such installment of
principal or interest is stated to be due and payable (without regard to any
provisions for redemption, prepayment, acceleration, purchase or extension).
"Tranche" means a group of Securities which (a) are of the same series and
(b) have identical terms except as to principal amount and/or date of issuance.
"Trust" means SWEPCo Capital Trust I, a statutory business trust formed
under the laws of the State of Delaware, or any other trust designated pursuant
to Section 301 hereof or any permitted successor under the Trust Agreement
pertaining to such Trust.
"Trust Agreement" means the Amended and Restated Trust Agreement, dated as
of September 1, 2003, relating to SWEPCo Capital Trust I, or an Amended and
Restated Trust Agreement relating to a Trust designated pursuant to Section 301
hereof, in each case, among Southwestern Electric Power Company, as Depositor
and Trust Securities Guarantor, the trustees named therein and the several
holders referred to therein, as such agreement or agreements, as the case may
be, may be amended from time to time.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this Indenture until a successor Trustee shall have become such with respect
to one or more series of Securities pursuant to the applicable provisions of
this Indenture, and thereafter "Trustee" shall mean or include each Person who
is then a Trustee hereunder, and if at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any series shall
mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means, as of any time, the Trust Indenture Act of
1939 as in force at such time.
"Trust Securities Guarantee" means the Guarantee Agreement between the
Guarantor, as Trust Securities Guarantor, and a guarantee trustee for the
benefit of the holders of Preferred Securities and Common Securities issued by
such Trust.
"United States" means the United States of America, its territories, its
possessions and other areas subject to its jurisdiction.
"U.S. Government Obligations" has the meaning specified in Section 1404.
SECTION 102. Compliance Certificates and Opinions
Except as otherwise expressly provided in this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officer's Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee
(a) Any Officer's Certificate may be based (without further
examination or investigation), insofar as it relates to or is dependent upon
legal matters, upon an opinion of, or representations by, counsel, unless, in
any case, such officer has actual knowledge that the certificate or opinion or
representations with respect to the matters upon which such Officer's
Certificate may be based as aforesaid are erroneous.
Any Opinion of Counsel may be based (without further examination or
investigation), insofar as it relates to or is dependent upon factual matters,
information with respect to which is in the possession of the Company, upon a
certificate of, or representations by, an officer or officers of the Company, as
the case may be, unless such counsel has actual knowledge that the certificate
or opinion or representations with respect to the matters upon which his opinion
may be based as aforesaid are erroneous. In addition, any Opinion of Counsel may
be based (without further examination or investigation), insofar as it relates
to or is dependent upon matters covered in an Opinion of Counsel rendered by
other counsel, upon such other Opinion of Counsel, unless such counsel has
actual knowledge that the Opinion of Counsel rendered by such other counsel with
respect to the matters upon which his Opinion of Counsel may be based as
aforesaid are erroneous. If, in order to render any Opinion of Counsel provided
for herein, the signer thereof shall deem it necessary that additional facts or
matters be stated in any Officer's Certificate provided for herein, then such
certificate may state all such additional facts or matters as the signer of such
Opinion of Counsel may request.
(b) In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents. Where (i) any
Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this
Indenture, or (ii) two or more Persons are each required to make, give or
execute any such application, request, consent, certificate, statement, opinion
or other instrument, any such applications, requests, consents, certificates,
statements, opinions or other instruments may, but need not, be consolidated and
form one instrument.
(c) Whenever, subsequent to the receipt by the Trustee of any Board
Resolution, Officer's Certificate, Opinion of Counsel or other document or
instrument, a clerical, typographical or other inadvertent or unintentional
error or omission shall be discovered therein, a new document or instrument may
be substituted therefor in corrected form with the same force and effect as if
originally filed in the corrected form and, irrespective of the date or dates of
the actual execution and/or delivery thereof, such substitute document or
instrument shall be deemed to have been executed and/or delivered as of the date
or dates required with respect to the document or instrument for which it is
substituted. Anything in this Indenture to the contrary notwithstanding, if any
such corrective document or instrument indicates that action has been taken by
or at the request of the Company which could not have been taken had the
original document or instrument not contained such error or omission, the action
so taken shall not be invalidated or otherwise rendered ineffective but shall be
and remain in full force and effect, except to the extent that such action was a
result of willful misconduct or bad faith. Without limiting the generality of
the foregoing, any Securities issued under the authority of such defective
document or instrument shall nevertheless be the valid obligations of the
Company entitled to the benefits of this Indenture equally and ratably with all
other Outstanding Securities, except as aforesaid.
SECTION 104. Acts of Holders
(a) Any request, demand, authorization, direction, notice, consent,
election, waiver or other action provided by this Indenture to be made, given or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing or, alternatively, may be embodied in and evidenced by the
record of Holders voting in favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders duly called and held in
accordance with the provisions of Article Thirteen, or a combination of such
instruments and any such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record
or both are delivered to the Trustee and, where it is hereby expressly required,
to the Company. Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments and so voting
at any such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a Security, shall
be sufficient for any purpose of this Indenture and (subject to Section 901)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section. The record of any meeting of Holders shall be proved
in the manner provided in Section 1306.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof or may be
proved in any other manner which the Trustee and the Company deem sufficient.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.
(c) The ownership, principal amount (except as otherwise
contemplated in clause (y) of the first proviso to the definition of
Outstanding) and serial numbers of Securities held by any Person, and the date
of holding the same, shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent,
election, waiver or other Act of a Holder shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee, the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
(e) Until such time as written instruments shall have been delivered
to the Trustee with respect to the requisite percentage of principal amount of
Securities for the action contemplated by such instruments, any such instrument
executed and delivered by or on behalf of a Holder may be revoked with respect
to any or all of such Securities by written notice by such Holder or any
subsequent Holder, proven in the manner in which such instrument was proven.
(f) Securities of any series, or any Tranche thereof, authenticated
and delivered after any Act of Holders may, and shall if required by the
Trustee, bear a notation in form approved by the Trustee as to any action taken
by such Act of Holders. If the Company shall so determine, new Securities of any
series, or any Tranche thereof, so modified as to conform, in the opinion of the
Trustee and the Company, to such action may be prepared and executed by the
Company and the Guarantor and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series or Tranche.
(g) The Company may, at its option, by Company Order, as
appropriate, fix in advance a record date for the determination of Holders
entitled to give any request, demand, authorization, direction, notice, consent,
waiver or other Act solicited by the Company, but the Company shall have no
obligation to do so; provided, however, that the Company may not fix a record
date for the giving or making of any notice, declaration, request or direction
referred to in the next sentence. In addition, the Trustee may, at its option,
fix in advance a record date for the determination of Holders entitled to join
in the giving or making of any Notice of Default, any declaration of
acceleration referred to in Section 802, any request to institute proceedings
referred to in Section 807 or any direction referred to in Section 812. If any
such record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act, or such notice, declaration, request or
direction, may be given before or after such record date, but only the Holders
of record at the close of business on the record date shall be deemed to be
Holders for the purposes of determining (i) whether Holders of the requisite
proportion of the Outstanding Securities have authorized or agreed or consented
to such Act (and for that purpose the Outstanding Securities shall be computed
as of the record date) and/or (ii) which Holders may revoke any such Act
(notwithstanding subsection (e) of this Section ); and any such Act, given as
aforesaid, shall be effective whether or not the Holders which authorized or
agreed or consented to such Act remain Holders after such record date and
whether or not the Securities held by such Holders remain Outstanding after such
record date.
SECTION 105. Notices, Etc. to Trustee or Company
Any request, demand, authorization, direction, notice, consent, election,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with, the Trustee by
any Holder or by the Company, or the Company by the Trustee or by any Holder,
shall be sufficient for every purpose hereunder (unless otherwise expressly
provided herein) if in writing and delivered personally to an officer or other
responsible employee of the addressee, or transmitted by facsimile transmission,
telex or other direct written electronic means to such telephone number or other
electronic communications address set forth for such party below or such other
address as the parties hereto shall from time to time designate, or transmitted
by registered mail, charges prepaid, to the applicable address set forth for
such party below or to such other address as any party hereto may from time to
time designate:
If to the Trustee, to:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Company, to:
Southwestern Electric Power Company
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Any communication contemplated herein shall be deemed to have been made,
given, furnished and filed if personally delivered, on the date of delivery, if
transmitted by facsimile transmission, telex or other direct written electronic
means, on the date of transmission, and if transmitted by registered mail, on
the date of receipt.
SECTION 106. Notice to Holders of Securities; Waiver
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given, and shall be deemed given, to Holders if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at the
address of such Holder as it appears in the Security Register, not later than
the latest date, and not earlier than the earliest date, prescribed for the
giving of such Notice.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice to Holders by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder. In any
case where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders.
Any notice required by this Indenture may be waived in writing by the
Person entitled to receive such notice, either before or after the event
otherwise to be specified therein, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 107. Conflict with Trust Indenture Act
If any provision of this Indenture limits, qualifies or conflicts with
another provision hereof which is required or deemed to be included in this
Indenture by, or is otherwise governed by, any provision of the Trust Indenture
Act, such other provision shall control; and if any provision hereof otherwise
conflicts with the Trust Indenture Act, the Trust Indenture Act shall control.
SECTION 108. Effect of Headings
The Article and Section headings in this Indenture are for convenience
only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause
In case any provision in this Indenture or the Securities shall be held to
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 111. Benefits of Indenture
Nothing in this Indenture or the Securities, express or implied, shall
give to any Person, other than the parties hereto, their successors hereunder,
the Holders and the holders of Senior Indebtedness, any benefit or any legal or
equitable right, remedy or claim under this Indenture, provided, however, that
for so long as any Preferred Securities remain outstanding, the holders of such
Preferred Securities, subject to certain limitations set forth in this
Indenture, may enforce the Company's obligations hereunder, directly against the
Company, as third party beneficiaries of this Indenture without proceeding
against the Trust issuing such Preferred Securities.
SECTION 112. Governing Law
This Indenture and the Securities shall be governed by and construed in
accordance with the law of the State of New York (including without limitation
Section 5-1401 of the New York General Obligations Law or any successor to such
statute), except to the extent that the Trust Indenture Act shall be applicable.
SECTION 113. Legal Holidays
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
other than a provision in Securities of any series, or any Tranche thereof, or
in the indenture supplemental hereto, Board Resolution or Officer's Certificate
which establishes the terms of the Securities of such series or Tranche, which
specifically states that such provision shall apply in lieu of this Section)
payment of interest or principal and premium, if any, need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day, without additional interest, at such Place of Payment, except that if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on the Interest Payment Date, Redemption Date, or Stated
Maturity, and, if such payment is made or duly provided for on such Business
Day, no interest shall accrue on the amount so payable for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be, to such Business Day.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally
The definitive Securities of each series and the Guarantees to be endorsed
thereon as contemplated by Article Fourteen shall be in substantially the form
or forms thereof established in the indenture supplemental hereto establishing
such series or in a Board Resolution establishing such series, or in an
Officer's Certificate pursuant to such a supplemental indenture or Board
Resolution, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities or Guarantees endorsed
thereon, as the case may be, as evidenced by their execution thereof. If the
form or forms of Securities of any series or Guarantees endorsed thereon are
established in a Board Resolution or in an Officer's Certificate pursuant to a
Board Resolution, such Board Resolution and Officer's Certificate, if any, shall
be delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities.
Unless otherwise specified as contemplated by Section 301 or 1201(g), the
Securities of each series shall be issuable in registered form without coupons.
The definitive Securities and Guarantees endorsed thereon shall be produced in
such manner as shall be determined by the officers executing such Securities or
Guarantees, as evidenced by their execution thereof.
SECTION 202. Form of Trustee's Certificate of Authentication
The Trustee's certificate of authentication shall be in substantially the
form set forth below:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
--------------------------------,
as Trustee
By: ___________________________
Authorized Officer
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited; provided, however, that all
Securities shall be issued to a Trust to evidence loans by a Trust of the
proceeds of the issuance of Preferred Securities and Common Securities of such
Trust.
The Securities may be issued in one or more series. Subject to the last
paragraph of this Section, prior to the authentication and delivery of
Securities of any series there shall be established by specification in a
supplemental indenture or in a Board Resolution of the Company or in an
Officer's Certificate of the Company (which need not comply with Section 102)
pursuant to a supplemental indenture or a Board Resolution:
(a) the title of the Securities of such series (which shall
distinguish the Securities of such series from Securities of all other series);
(b) any limit upon the aggregate principal amount of the Securities
of such series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of such series pursuant
to Section 304, 305, 306, 406 or 1206 and except for any Securities which,
pursuant to Section 303, are deemed never to have been authenticated and
delivered hereunder);
(c) the Person or Persons (without specific identification) to whom
any interest on Securities of such series, or any Tranche thereof, shall be
payable, if other than the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest;
(d) the date or dates on which the principal of the Securities of
such series or any Tranche thereof, is payable or any formulary or other method
or other means by which such date or dates shall be determined, by reference to
an index or other fact or event ascertainable outside of this Indenture or
otherwise (without regard to any provisions for redemption, prepayment,
acceleration, purchase or extension);
(e) the rate or rates at which the Securities of such series, or any
Tranche thereof, shall bear interest (including the rate or rates at which
overdue principal shall bear interest after Maturity if different from the rate
or rates at which such Securities shall bear interest prior to Maturity, and, if
applicable, the rate or rates at which overdue premium or interest shall bear
interest), or any formulary or other method or other means by which such rate or
rates shall be determined by reference to an index or other fact or event
ascertainable outside of this Indenture or otherwise, the date or dates from
which such interest shall accrue; the Interest Payment Dates and the Regular
Record Dates, if any, for the interest payable on such Securities on any
Interest Payment Date; the right of the Company, if any, to extend the interest
payment periods and the duration of any such extension as contemplated by
Section 312; and the basis of computation of interest, if other than as provided
in Section 310;
(f) the place or places at which or methods (if other than as
provided elsewhere in this Indenture) by which (i) the principal of and premium,
if any, and interest on Securities of such series, or any Tranche thereof, shall
be payable; (ii) registration of transfer of Securities of such series, or any
Tranche thereof, may be effected; (iii) exchanges of Securities of such series,
or any Tranche thereof, may be effected; and (iv) notices and demands to or upon
the Company in respect of the Securities of such series, or any Tranche thereof,
and this Indenture may be served; the Security Registrar and any Paying Agent or
Agents for such series or Tranche; and if such is the case, that the principal
of such Securities shall be payable without presentment or surrender thereof;
(g) the period or periods within which, or the date or dates on
which, the price or prices at which and the terms and conditions upon which the
Securities of such series, or any Tranche thereof, may be redeemed, in whole or
in part, at the option of the Company and any restrictions on such redemptions;
(h) the obligation, if any, of the Company to redeem or purchase or
repay the Securities of such series, or any Tranche thereof, pursuant to any
sinking fund or other mandatory redemption provisions or at the option of a
Holder thereof and the period or periods within which or the date or dates on
which, the price or prices at which and the terms and conditions upon which such
Securities shall be redeemed or purchased or repaid, in whole or in part,
pursuant to such obligation and applicable exceptions to the requirements of
Section 404 in the case of mandatory redemption or redemption or repayment at
the option of the Holder;
(i) the denominations in which Securities of such series, or any
Tranche thereof, shall be issuable if other than denominations of $25 and any
integral multiple thereof;
(j) if the principal of or premium, if any, or interest on the
Securities of such series, or any Tranche thereof, are to be payable, at the
election of the Company or a Holder thereof, in a coin or currency other than
that in which the Securities are stated to be payable, the period or periods
within which, and the terms and conditions upon which, such election may be made
and the manner in which the amount of such coin or currency payable is to be
determined;
(k) the currency or currencies, including composite currencies, in
which payment of the principal of and premium, if any, and interest on the
Securities of such series, or any Tranche thereof, shall be payable (if other
than Dollars) and the manner in which the equivalent of the principal amount
thereof in Dollars is to be determined for any purpose, including for the
purpose of determining the principal amount deemed to be Outstanding at any
time;
(l) if the principal of or premium, if any, or interest on the
Securities of such series, or any Tranche thereof, are to be payable, or are to
be payable at the election of the Company or a Holder thereof, in securities or
other property, the type and amount of such securities or other property, or the
formulary or other method or other means by which such amount shall be
determined, and the period or periods within which, and the terms and conditions
upon which, any such election may be made;
(m) if the amount payable in respect of principal of or premium, if
any, or interest on the Securities of such series, or any Tranche thereof, may
be determined with reference to an index or other fact or event ascertainable
outside this Indenture, the manner in which such amounts shall be determined to
the extent not established pursuant to clause (e) of this paragraph;
(n) if other than the entire principal amount thereof, the portion
of the principal amount of Securities of such series, or any Tranche thereof,
which shall be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 802;
(o) any Events of Default, in addition to those specified in Section
801, or any exceptions to those specified in Section 801, with respect to the
Securities of such series, and any covenants of the Company or the Guarantor for
the benefit of the Holders of the Securities of such series, or any Tranche
thereof, in addition to those set forth in Article Six, or any exceptions to
those set forth in Article Six;
(p) the terms, if any, pursuant to which the Securities of such
series, or any Tranche thereof, may be converted into or exchanged for shares of
capital stock or other securities of the Company or any other Person;
(q) the obligations or instruments, if any, which shall be
considered to be Eligible Obligations in respect of the Securities of such
series, or any Tranche thereof, denominated in a currency other than Dollars or
in a composite currency, and any provisions for satisfaction and discharge of
Securities of any series, in addition to those set forth in Section 701 and 702,
or any exceptions to those set forth in Section 701 and 702;
(r) if the Securities of such series, or any Tranche thereof, are to
be issued in global form, (i) any limitations on the rights of the Holder or
Holders of such Securities to transfer or exchange the same or to obtain the
registration of transfer thereof; (ii) any limitations on the rights of the
Holder or Holders thereof to obtain certificates therefor in definitive form in
lieu of global form; and (iii) any other matters incidental to such Securities;
(s) if the Securities of such series, or any Tranche thereof, are to
be issuable as bearer securities, any and all matters incidental thereto which
are not specifically addressed in a supplemental indenture as contemplated by
clause (g) of Section 1201;
(t) to the extent not established pursuant to clause (r) of this
paragraph, any limitations on the rights of the Holders of the Securities of
such Series, or any Tranche thereof, to transfer or exchange such Securities or
to obtain the registration of transfer thereof; and if a service charge will be
made for the registration of transfer or exchange of Securities of such series,
or any Tranche thereof, the amount or terms thereof;
(u) any exceptions to Section 113, or variation in the definition of
Business Day, with respect to the Securities of such series, or any Tranche
thereof;
(v) the designation of the Trust to which Securities of such series
are to be issued;
(w) any other terms of the Securities of such series, or any Tranche
thereof.
With respect to Securities of a series subject to a Periodic Offering, the
indenture supplemental hereto or the Board Resolution which establishes such
series, or the Officer's Certificate pursuant to such supplemental indenture or
Board Resolution, as the case may be, may provide general terms or parameters
for Securities of such series and provide either that the specific terms of
Securities of such series, or any Tranche thereof, shall be specified in a
Company Order or that such terms shall be determined by the Company or its
agents in accordance with procedures specified in a Company Order as
contemplated in clause (b) of Section 303.
All Securities of any one series shall be substantially identical, except
as to principal amount and date of issue and except as may be set forth in the
terms of such series as contemplated above. The Securities of each series shall
be subordinated in right of payment to Senior Indebtedness of the Company as
provided in Article Fifteen.
Unless otherwise provided with respect to a series of Securities as
contemplated in Section 301(b), the aggregate principal amount of a series of
Securities may be increased and additional Securities of such series may be
issued up to the maximum aggregate principal amount authorized with respect to
such series as increased.
SECTION 302. Denominations
Unless otherwise provided as contemplated by Section 301 with respect to
any series of Securities, or any Tranche thereof, the Securities of each series
shall be issuable in denominations of $25 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating
Unless otherwise provided as contemplated by Section 301 with respect to
any series of Securities or any Tranche thereof, the Securities shall be
executed on behalf of the Company by an Authorized Officer of the Company, and
may have the corporate seal of the Company affixed thereto or reproduced thereon
attested by its Secretary, one of its Assistant Secretaries or any other
Authorized Officer. The signature of any or all of these officers on the
Securities may be manual or facsimile.
A Security bearing the manual or facsimile signature of an individual who
was at the time of execution an Authorized Officer of the Company shall bind the
Company, notwithstanding that any such individual has ceased to be an Authorized
Officer prior to the authentication and delivery of the Security or did not hold
such office at the date of such Security.
The Trustee shall authenticate and deliver Securities of a series, for
original issue, at one time or from time to time in accordance with the Company
Order referred to below, upon receipt by the Trustee of:
(a) the instrument or instruments establishing the form or forms and
terms of the Securities of such series, as provided in Sections 201 and 301;
(b) a Company Order requesting the authentication and delivery of
such Securities, and, to the extent that the terms of such Securities shall not
have been established in an indenture supplemental hereto or in a Board
Resolution, or in an Officer's Certificate pursuant to a supplemental indenture
or Board Resolution, all as contemplated by Sections 201 and 301, either (i)
establishing such terms, or (ii) in the case of Securities of a series subject
to a Periodic Offering, specifying procedures, acceptable to the Trustee, by
which such terms are to be established (which procedures may provide, to the
extent acceptable to the Trustee, for authentication and delivery pursuant to
oral or electronic instructions from the Company or any agent or agents thereof,
which oral instructions are to be promptly confirmed electronically or in
writing), in either case in accordance with the instrument or instruments
delivered pursuant to clause (a) above;
(c) Securities of such series, each executed on behalf of the
Company by an Authorized Officer of the Company;
(d) an Opinion of Counsel to the effect that:
(i) (A) the forms of such Securities have been duly authorized
by the Company and the forms of the Securities have been established in
conformity with the provisions of this Indenture;
(ii) (A) the terms of such Securities have been duly
authorized by the Company and the terms of the Securities have been
established in conformity with the provisions of this Indenture; and
(iii) such Securities endorsed thereon, when authenticated and
delivered by the Trustee and issued and delivered by the Company in the
manner and subject to any conditions specified in such Opinion of Counsel,
will have been duly issued under this Indenture and will constitute valid
and legally binding obligations of the Company, entitled to the benefits
provided by this Indenture, and enforceable in accordance with their
terms, subject, as to enforcement, to laws relating to or affecting
generally the enforcement of creditors' rights, including, without
limitation, bankruptcy and insolvency laws and to general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity as at law);
provided, however, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication and
delivery of Securities of such series, and that in lieu of the opinions
described in clauses (ii) and (iii) above such Opinion of Counsel may,
alternatively, state, respectively,
(x) that, when the terms of such Securities to be endorsed
thereon shall have been established pursuant to a Company Order or Orders
or Orders or pursuant to such procedures as may be specified from time to
time by a Company Order or Orders, all as contemplated by and in
accordance with the instrument or instruments delivered pursuant to clause
(a) above, such terms will have been duly authorized by the Company, and
will have been established in conformity with the provisions of this
Indenture; and
(y) that such Securities, when (1) executed by the Company,
(2) authenticated and delivered by the Trustee in accordance with this
Indenture, (3) issued and delivered by the Company and (4) paid for, all
as contemplated by and in accordance with the aforesaid Company Order or
Orders or specified procedures, as the case may be, will have been duly
issued under this Indenture and will constitute valid and legally binding
obligations of the Company and entitled to the benefits provided by the
Indenture, and enforceable in accordance with their terms, subject, as to
enforcement, to laws relating to or affecting generally the enforcement of
creditors' rights, including, without limitation, bankruptcy and
insolvency laws and to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
With respect to Securities of a series subject to a Periodic Offering, the
Trustee may conclusively rely, as to the authorization by the Company of any of
such Securities, the forms and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and other
documents delivered pursuant to Sections 201 and 301 and this Section, as
applicable, at or prior to the time of the first authentication of Securities of
such series, unless and until such opinion or other documents have been
superseded or revoked or expire by their terms. In connection with the
authentication and delivery of Securities of a series, pursuant to a Periodic
Offering, the Trustee shall be entitled to assume that the Company's
instructions to authenticate and deliver such Securities, do not violate any
applicable law or any applicable rule, regulation or order of any governmental
agency or commission having jurisdiction over the Company.
If the forms or terms of the Securities of any series have been
established by or pursuant to a Board Resolution or an Officer's Certificate as
permitted by Sections 201 or 301, the Trustee shall not be required to
authenticate such Securities if the issuance of such Securities pursuant to this
Indenture will adversely affect the Trustee's own rights, duties or immunities
under the Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Except as otherwise specified as contemplated by Section 301 with respect
to any series of securities, or any Tranche thereof, each Security, shall each
be dated the date of its authentication.
Except as otherwise specified as contemplated by Section 301 with respect
to any series of Securities, or any Tranche thereof, no Security shall be
entitled to any benefit under this Indenture or be valid or obligatory for any
purpose unless there appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee or its
agent by manual signature of an authorized officer thereof, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture. Notwithstanding the foregoing, if any Security
shall have been authenticated and delivered hereunder to the Company, or any
Person acting on its behalf, but shall never have been issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits hereof.
SECTION 304. Temporary Securities
Pending the preparation of definitive Securities of any series, or any
Tranche thereof, the Company may execute, and upon Company Order the Trustee
shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued, with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities; provided,
however, that temporary Securities need not recite specific redemption, sinking
fund, conversion or exchange provisions.
If temporary Securities of any series or Tranche are issued, the Company
shall cause definitive Securities of such series or Tranche to be prepared
without unreasonable delay. After the preparation of definitive Securities of
such series or Tranche, the temporary Securities of such series or Tranche shall
be exchangeable for definitive Securities of such series or Tranche, upon
surrender of the temporary Securities of such series or Tranche at the office or
agency of the Company maintained pursuant to Section 602 in a Place of Payment
for such series or Tranche, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any series or Tranche,
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor definitive Securities of the same series or Tranche, of
authorized denominations and of like tenor and aggregate principal amount.
Until exchanged in full as hereinabove provided, temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities of the same series and Tranche and of like tenor
authenticated and delivered hereunder.
SECTION 305. Registration, Registration of Transfer and Exchange
The Company shall cause to be kept in one of the offices or agencies
designated pursuant to Section 602, with respect to the Securities of each
series or any Tranche thereof, a register (the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities of such series or Tranche and the
registration of transfer thereof. The Company shall designate one Person to
maintain the Security Register for the Securities of each series, and such
Person is referred to herein, with respect to such series, as the "Security
Registrar." Anything herein to the contrary notwithstanding, the Company may
designate one or more of its offices or an office of any Affiliate (including
the Guarantor) as an office in which a register with respect to the Securities
of one or more series, or any Tranche or Tranches thereof, shall be maintained,
and the Company may designate itself or any Affiliate as the Security Registrar
with respect to one or more of such series. The Security Register shall be open
for inspection by the Trustee and the Company at all reasonable times.
Except as otherwise specified as contemplated by Section 301 with respect
to the Securities of any series, or any Tranche thereof, upon surrender for
registration of transfer of any Security of such series or Tranche at the office
or agency of the Company maintained pursuant to Section 602 in a Place of
Payment for such series or Tranche, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of the same series and Tranche, of
authorized denominations and of like tenor and aggregate principal amount.
Except as otherwise specified as contemplated by Section 301 with respect
to the Securities of any series, or any Tranche thereof, any Security of such
series or Tranche may be exchanged at the option of the Holder for one or more
new Securities of the same series and Tranche, of authorized denominations and
of like tenor and aggregate principal amount, upon surrender of the Securities
to be exchanged at any such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities, which the Holder making the exchange
is entitled to receive.
All Securities delivered upon any registration of transfer or exchange of
Securities shall be valid obligations of the Company evidencing the same
obligation, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed or shall be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Trustee, duly executed by the Holder thereof
or his attorney duly authorized in writing.
Unless otherwise specified as contemplated by Section 301, with respect to
Securities of any series, or any Tranche thereof, no service charge shall be
made for any registration of transfer or exchange of Securities, but the Company
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to Section 304, 406 or
1206 not involving any transfer.
The Company shall not be required to execute or to provide for the
registration of transfer of or the exchange of (a) Securities of any series, or
any Tranche thereof, during a period of 15 days immediately preceding the date
notice is to be given identifying the serial numbers of the Securities of such
series or Tranche called for redemption or (b) any Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and Tranche, and of like tenor and principal
amount, having a Guarantee of the Guarantor endorsed thereon and bearing a
number not contemporaneously outstanding.
If there shall be delivered to the Company, the Guarantor and the Trustee
(a) evidence to their satisfaction of the ownership of and the destruction, loss
or theft of any Security and (b) such security or indemnity as may be reasonably
required by them to save each of them and any agent of any of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security
has been acquired by a bona fide purchaser, the Company shall execute and the
Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security, a new Security of the same series and Tranche, and of like
tenor and principal amount and bearing a number not contemporaneously
outstanding.
Notwithstanding the foregoing, in case any such mutilated, destroyed, lost
or stolen Security has become or is about to become due and payable, the Company
in its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other reasonable expenses
(including the fees and expenses of the Trustee) in connection therewith.
Every new Security of any series issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone other than
the Holder of such new security, and any such new Security shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Securities of such series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved
Unless otherwise provided as contemplated by Section 301 with respect to
the Securities of any series, or any Tranche thereof, interest on any Security
which is payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest.
Subject to Section 312, any interest on any Security of any series which
is payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the related Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on a date (a
"Special Record Date") for the payment of such Defaulted Interest, which shall
be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each Security
of such series and the date of the proposed payment, and at the same time the
Company, as the case may be, shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted Interest as
in this clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall promptly cause
notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first-class postage prepaid, to each Holder of
Securities of such series at the address of such Holder as it appears in the
Security Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such Special
Record Date.
(b) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be listed,
and upon such notice as may be required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the absolute owner of such
Security for the purpose of receiving payment of principal of and premium, if
any, and (subject to Sections 305 and 307) interest on such Security and for all
other purposes whatsoever, whether or not such Security be overdue, and none of
the Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 309. Cancellation
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and, if not theretofore canceled, shall be promptly canceled by the Trustee. The
Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever or which the Company shall not have issued and
sold, and all Securities so delivered shall be promptly canceled by the Trustee.
No Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as expressly permitted
by this Indenture. All canceled Securities held by the Trustee shall be disposed
of in accordance with the Trustee's customary procedures, and the Trustee shall
promptly deliver a certificate of disposition to the Company unless, by a
Company Order, the Company shall direct that canceled Securities be returned to
it.
SECTION 310. Computation of Interest
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, or Tranche thereof, interest on the Securities of each
series shall be computed on the basis of a 360-day year consisting of twelve
30-day months, and with respect to any period less than a full calendar month,
on the basis of the actual number of days elapsed during such period.
SECTION 311. Payment to Be in Proper Currency
In the case of any Security denominated in any currency other than Dollars
or in a composite currency (the "Required Currency"), except as otherwise
specified with respect to such Security as contemplated by Section 301, the
obligation of the Company to make any payment of the principal thereof, or the
premium or interest thereon, shall not be discharged or satisfied by any tender
by the Company, or recovery by the Trustee, in any currency other than the
Required Currency, except to the extent that such tender or recovery shall
result in the Trustee timely holding the full amount of the Required Currency
then due and payable. If any such tender or recovery is in a currency other than
the Required Currency, the Trustee may take such actions as it considers
appropriate to exchange such currency for the Required Currency. The costs and
risks of any such exchange, including without limitation the risks of delay and
exchange rate fluctuation, shall be borne by the Company and the Company shall
remain fully liable for any shortfall or delinquency in the full amount of
Required Currency then due and payable, and in no circumstances shall the
Trustee be liable therefor except in the case of its negligence or willful
misconduct. The Company hereby waives any defense of payment based upon any such
tender or recovery which is not in the Required Currency, or which, when
exchanged for the Required Currency by the Trustee, is less than the full amount
of Required Currency then due and payable.
SECTION 312. Extension of Interest Payment
The Company shall have the right at any time, so long as no Event of
Default hereunder has occurred and is continuing with respect to the Securities
of any series, to extend interest payment periods from time to time on all
Securities of such series, if so specified as contemplated by Section 301 with
respect to such Securities and upon such terms as may be specified as
contemplated by Section 301 with respect to such Securities.
ARTICLE FOUR
Redemption Of Securities
SECTION 401. Applicability of Article
Securities of any series, or any Tranche thereof, which are redeemable
before their Stated Maturity shall be redeemable in accordance with their terms
and (except as otherwise specified as contemplated by Section 301 for Securities
of such series or Tranche) in accordance with this Article.
SECTION 402. Election to Redeem; Notice to Trustee
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution or an Officer's Certificate. The Company shall, at least 60
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee and in the case of
Securities of a series held by a Trust, the Property Trustee under the related
Trust Agreement in writing of such Redemption Date and of the principal amount
of such Securities to be redeemed. In the case of any redemption of Securities
(a) prior to the expiration of any restriction on such redemption provided in
the terms of such Securities or elsewhere in this Indenture or (b) pursuant to
an election of the Company which is subject to a condition specified in the
terms of such Securities, the Company shall furnish the Trustee with an
Officer's Certificate evidencing compliance with such restriction or condition.
SECTION 403. Selection of Securities to Be Redeemed
If less than all the Securities of any series, or any Tranche thereof, are
to be redeemed, the particular Securities to be redeemed shall be selected by
the Trustee from the Outstanding Securities of such series or Tranche not
previously called for redemption, by such method as shall be provided for such
particular series or Tranche, or in the absence of any such provision, by such
method of random selection as the Trustee shall deem fair and appropriate and
which may, in any case, provide for the selection for redemption of portions
(equal to any authorized denomination for Securities of such series or Tranche)
of the principal amount of Securities of such series or Tranche of a
denomination larger than the minimum authorized denomination for Securities of
such series or Tranche; provided, however, that if, as indicated in an Officer's
Certificate, the Company shall have offered to purchase all or any principal
amount of the Securities then Outstanding of any series, or any Tranche thereof,
and less than all of such Securities as to which such offer was made shall have
been tendered to the Company for such purchase, the Trustee, if so directed by
Company Order, shall select for redemption all or any principal amount of such
Securities which have not been so tendered.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected to be
redeemed in part, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 404. Notice of Redemption
Notice of redemption shall be given in the manner provided in Section 106
to the Holders of Securities to be redeemed not less than 30 nor more than 60
days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any series or Tranche are to
be redeemed, the identification of the particular Securities to be redeemed and
the portion of the principal amount of any Security to be redeemed in part,
(d) that on the Redemption Date the Redemption Price, together with
accrued interest to the Redemption Date, will become due and payable upon each
such Security to be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(e) the place or places where such Securities are to be surrendered
for payment of the Redemption Price and accrued interest unless it shall have
been specified as contemplated by Section 301 with respect to such Securities
that such surrender shall not be required,
(f) CUSIP numbers, if any,
(g) that the redemption is for a sinking or other fund, if such is
the case, and
(h) such other matters as the Company shall deem desirable or
appropriate.
Unless otherwise specified with respect to any Securities in accordance
with Section 301, with respect to any notice of redemption of Securities at the
election of the Company, unless, upon the giving of such notice, such Securities
shall be deemed to have been paid in accordance with Section 701, such notice
may state that such redemption shall be conditional upon the receipt by the
Paying Agent or Agents for such Securities, on or prior to the date fixed for
such redemption, of money sufficient to pay the principal of and premium, if
any, and interest on such Securities and that if such money shall not have been
so received such notice shall be of no force or effect and the Company shall not
be required to redeem such Securities. In the event that such notice of
redemption contains such a condition and such money is not so received, the
redemption shall not be made and within a reasonable time thereafter notice
shall be given, in the manner in which the notice of redemption was given, that
such money was not so received and such redemption was not required to be made.
Notice of redemption of Securities to be redeemed at the election of the
Company, and any notice of non-satisfaction of a condition for redemption as
aforesaid, shall be given by the Company or, on Company Request, by the Trustee
in the name and at the expense of the Company.
SECTION 405. Securities Payable on Redemption Date
Notice of redemption having been given as aforesaid, and the conditions,
if any, set forth in such notice having been satisfied, the Securities or
portions thereof so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless, in the case of an unconditional notice of redemption, the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities or portions thereof, if interest-bearing, shall cease to bear
interest. Upon surrender of any such Security for redemption in accordance with
such notice, such Security or portion thereof shall be paid by the Company at
the Redemption Price, together with accrued interest to the Redemption Date;
provided, however, that no such surrender shall be a condition to such payment
if so specified as contemplated by Section 301 with respect to such Security;
and provided, further, that except as otherwise specified as contemplated by
Section 301 with respect to such Security, any installment of interest on any
Security the Stated Maturity of which installment is on or prior to the
Redemption Date shall be payable to the Holder of such Security, or one or more
Predecessor Securities, registered as such at the close of business on the
related Regular Record Date according to the terms of such Security and subject
to the provisions of Sections 305 and 307.
SECTION 406. Securities Redeemed in Part
Upon the surrender of any Security which is to be redeemed only in part at
a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security, without service charge,
a new Security or Securities of the same series and Tranche, of any authorized
denomination requested by such Holder and of like tenor and in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
ARTICLE FIVE
Sinking Funds
SECTION 501. Applicability of Article
The provisions of this Article shall be applicable to any sinking fund for
the retirement of the Securities of any series, or any Tranche thereof, except
as otherwise specified as contemplated by Section 301 for Securities of such
series or Tranche.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series, or any Tranche thereof, is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of such minimum
amount provided for by the terms of Securities of any series, or any Tranche
thereof, is herein referred to as an "optional sinking fund payment". If
provided for by the terms of Securities of any series, or any Tranche thereof,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 502. Each sinking fund payment shall be applied to the
redemption of Securities of the series or Tranche in respect of which it was
made as provided for by the terms of such Securities.
SECTION 502. Satisfaction of Sinking Fund Payments with Securities
The Company (a) may deliver to the Trustee Outstanding Securities (other
than any previously called for redemption) of a series or Tranche in respect of
which a mandatory sinking fund payment is to be made and (b) may apply as a
credit Securities of such series or Tranche which have been redeemed either at
the election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the
terms of such Securities, in each case in satisfaction of all or any part of
such mandatory sinking fund payment; provided, however, that no Securities shall
be applied in satisfaction of a mandatory sinking fund payment if such
Securities shall have been previously so applied. Securities so applied shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such mandatory sinking fund payment shall be reduced
accordingly.
SECTION 503. Redemption of Securities for Sinking Fund
Not less than 45 days prior to each sinking fund payment date for the
Securities of any series, or any Tranche thereof, the Company shall deliver to
the Trustee an Officer's Certificate specifying:
(a) the amount of the next succeeding mandatory sinking fund payment
for such series or Tranche;
(b) the amount, if any, of the optional sinking fund payment to be
made together with such mandatory sinking fund payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking fund payment
which is to be satisfied by the payment of cash;
(e) the portion, if any, of such aggregate sinking fund payment
which is to be satisfied by delivering and crediting Securities of such series
or Tranche pursuant to Section 502 and stating the basis for such credit and
that such Securities have not previously been so credited, and the Company shall
also deliver to the Trustee any Securities to be so delivered. If the Company
shall not deliver such Officer's Certificate, the next succeeding sinking fund
payment for such series or Tranche shall be made entirely in cash in the amount
of the mandatory sinking fund payment. Not less than 30 days before each such
sinking fund payment date the Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 403 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 404. Such notice having
been duly given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Sections 405 and 406.
ARTICLE SIX
Covenants
SECTION 601. Payment of Principal, Premium and Interest
The Company shall pay the principal of and premium, if any, and interest,
on the Securities of each series in accordance with the terms of such Securities
and this Indenture.
SECTION 602. Maintenance of Office or Agency
The Company shall maintain in each Place of Payment for the Securities of
each series, or any Tranche thereof, an office or agency where payment of such
Securities shall be made or surrendered for payment, where registration of
transfer or exchange of such Securities may be effected and where notices and
demands to or upon the Company in respect of such Securities and this Indenture
may be served. The Company shall give prompt written notice to the Trustee of
the location, and any change in the location, of each such office or agency and
prompt notice to the Holders of any such change in the manner specified in
Section 106. If at any time the Company shall fail to maintain any such required
office or agency in respect of Securities of any series, or any Tranche thereof,
or shall fail to furnish the Trustee with the address thereof, payment of such
Securities may be made, registration of transfer or exchange thereof may be
effected and notices and demands in respect thereby may be served at the
Corporate Trust Office of the Trustee, and each of the Company hereby appoints
the Trustee as its agent for all such purposes in any such event.
The Company may also from time to time designate one or more other offices
or agencies with respect to the Securities of one or more series, or any Tranche
thereof, for any or all of the foregoing purposes and may from time to time
rescind such designations; provided, however, that, unless otherwise specified
as contemplated by Section 301 with respect to the Securities of such series or
Tranche, no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency for such purposes in
each Place of Payment for such Securities in accordance with the requirements
set forth above. The Company shall give prompt written notice to the Trustee,
and prompt notice to the Holders in the manner specified in Section 106, of any
such designation or rescission and of any change in the location of any such
other office or agency.
Anything herein to the contrary notwithstanding, any office or agency
required by this Section may be maintained at an office of the Company or the
Guarantor or any Affiliate of either of them, in which event the Company, the
Guarantor or such Affiliate, as the case may be, shall perform all functions to
be performed at such office or agency.
SECTION 603. Money for Securities Payments to Be Held in Trust
If the Company shall at any time act as its own Paying Agent with respect
to the Securities of any series, or any Tranche thereof, it shall, on or before
each due date of the principal of and premium, if any, or interest on any of
such Securities, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal and premium or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and shall promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Securities of any series, or any Tranche thereof, it shall, prior to each due
date of the principal of and premium, if any, or interest on such Securities,
deposit with such Paying Agents sums sufficient (without duplication) to pay the
principal and premium 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 shall promptly notify
the Trustee of its action or failure so to act.
The Company shall cause each Paying Agent for the Securities of any
series, or any Tranche thereof, other than the Company or the Trustee, to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent shall:
(a) hold all sums held by it for the payment of the principal of and
premium, if any, or interest on Securities of such series or Tranche in trust
for the benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any payment
of principal of and premium, if any, or interest on the Securities of such
series or Tranche; and
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
The Company may at any time pay, or by Company Order direct any Paying
Agent to pay, to the Trustee all sums held in trust by the Company or such
Paying Agent, such sums to be held by the Trustee upon the same trusts as those
upon which such sums were held by the Company or such Paying Agent and, if as
stated in a Company Order delivered to the Trustee, in accordance with the
provisions of Article Seven; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of and premium, if any,
or interest on any Security and remaining unclaimed for two years after such
principal and premium, if any, or interest has become due and payable shall be
paid to the Company on Company Request, or, if then held by the Company, shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such payment to the Company, may at the expense of the
Company, either (a) cause to be mailed, on one occasion only, notice to such
Holder that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such mailing, any
unclaimed balance of such money then remaining will be paid to the Company or
(b) cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general circulation
in the Borough of Manhattan, The City of New York, notice that such money
remains unclaimed and that after a date specified therein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be paid to the Company.
SECTION 604. Corporate Existence
Subject to the rights of the Company under Article Eleven, the Company
shall do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence.
SECTION 605. Annual Officer's Certificate
Not later than October 1 in each year, commencing October 1, 2004, the
Company shall deliver to the Trustee an Officer's Certificate which need not
comply with Section 102, executed by its principal executive officer, principal
financial officer or principal accounting officer, as to such officer's
knowledge of such obligor's compliance with all conditions and covenants under
this Indenture, such compliance to be determined without regard to any period of
grace or requirement of notice under this Indenture.
SECTION 606. Waiver of Certain Covenants
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in
(a) Section 607, 608 or any covenant or restriction specified with
respect to the Securities of any series, or any Tranche thereof, as contemplated
by Section 301 or by Section 1201(b), if before the time for such compliance the
Holders of a majority in aggregate principal amount of the Outstanding
Securities of all series and Tranches with respect to which compliance with such
covenant or restriction is to be omitted, considered as one class, shall, by Act
of such Holders, either waive such compliance in such instance or generally
waive compliance with such term, provision or condition; and
(b) Section 604 or 1101, if before the time for such compliance the
Holders of a majority in principal amount of Securities Outstanding under this
Indenture shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or condition;
but, in either case, no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect; provided, however, so long as a Trust holds Securities of
any series, such Trust may not waive compliance or waive any default in
compliance by the Company with any covenant or other term contained in this
Indenture or the Securities of such series without the approval of the holders
of at least a majority in aggregate liquidation preference of the outstanding
Preferred Securities issued by such Trust affected, obtained as provided in the
Trust Agreement pertaining to such Trust.
SECTION 607. Restriction on Payment of Dividends
So long as any Preferred Securities of any series remain outstanding, if
at such time (a) the Company shall be in default with respect to its payment
obligations under the Trust Securities Guarantee relating to such Preferred
Securities, (b) there shall have occurred and be continuing an Event of Default
(whether before or after expiration of any period of grace) or (c) the Company
shall have elected to extend any interest payment period as provided in Section
312, and any such period, or any extension thereof, shall be continuing, then
the Company shall not (1) declare or pay any dividends or distributions on, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
its capital stock, (2) make any payment of principal of or interest or premium,
if any, on or repay, repurchase or redeem any of its debt securities that rank
equally with, or junior to, the Securities, or (3) make any guarantee payments
with respect to any guarantee issued by the Company if such guarantee ranks
equally with, or junior to, the applicable Securities, other than, in each case,
repurchases, redemptions or other acquisitions of shares of its:
(a) capital stock in connection with any employment contract,
benefit plan or other similar arrangement with or for the benefit of any one or
more employees, officers, directors or consultants or in connection with a
dividend reinvestment or shareholder stock purchase plan;
(b) as a result of an exchange or conversion of any class or series
of the Company's capital stock, or any capital stock of a subsidiary of the
Company's, for any class or series of the Company's capital stock or of any
class or series of the Company's then outstanding indebtedness for any class or
series of capital stock;
(c) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions of the capital
stock or the security being converted or exchanged;
(d) payments under any Trust Securities Guarantee executed and
delivered by the Company concurrently with the issuance of any Preferred
Securities;
(e) any declaration of a dividend in the form of capital stock in
connection with any shareholders' rights plan, or the issuance of rights to
capital stock under any shareholders' rights plan, or the redemption or
repurchase of rights pursuant to any such plan; or
(f) any dividend in the form of stock, warrants, options or other
rights where the dividend stock or the stock issuable upon exercise of the
warrants, options or other rights is the same stock as that on which the
dividend is being paid or ranks on a parity with or junior to the stock,
if at such time
- the Company has actual knowledge of any event that (a) with the
giving of notice or the lapse of time, or both, would constitute an
event of default under the applicable indenture, and (b) the Company
has not taken reasonable steps to cure the same;
- the Company is in default with respect to payment of any obligations
under any Trust Securities Guarantee executed and delivered
concurrently with the issuance of any Preferred Securities; or
- an extension period is continuing.
SECTION 608. Maintenance of Trust Existence
So long as Preferred Securities of any series remain outstanding, the
Company shall (i) maintain direct or indirect ownership of all interests in the
Trust which issued such Preferred Securities, other than such Preferred
Securities; (ii) not voluntarily dissolve, liquidate or wind up such Trust,
except in connection with a distribution of the Securities to the holders of the
Preferred Securities in liquidation of such Trust; (iii) remain the sole
Depositor under the Trust Agreement (the "Depositor") of such Trust and timely
perform in all material respects all of its duties as Depositor of such Trust;
and (iv) use reasonable efforts, consistent with the terms and provisions of the
Trust Agreement, to cause the Trust to continue not to be taxable other than as
a grantor trust for Federal income tax purposes, provided that any permitted
successor to the Company under this Indenture may succeed to the Company's
duties as Depositor of such Trust; and provided further that the Company may
permit such Trust to consolidate or merge with or into another business trust or
other permitted successor under the Trust Agreement pertaining to such Trust so
long as the Company agrees to comply with this Section 608 with respect to such
successor business trust or other permitted successor.
SECTION 609. Rights of Holders of Preferred Securities
The Company agrees that, for so long as any Preferred Securities remain
outstanding, its obligations under this Indenture will also be for the benefit
of the holders from time to time of Preferred Securities, and the Company
acknowledges and agrees that such holders will be entitled to enforce this
Indenture, as third party beneficiaries, directly against the Company to the
same extent as if such holders of Preferred Securities held a principal amount
of Securities equal to the stated liquidation amount of the Preferred Securities
held by such holders.
ARTICLE SEVEN
Satisfaction And Discharge
SECTION 701. Satisfaction and Discharge of Securities
Any Security or Securities, or any portion of the principal amount
thereof, shall be deemed to have been paid for all purposes of this Indenture,
and the entire indebtedness of the Company in respect thereof shall be satisfied
and discharged, if there shall have been irrevocably deposited with the Trustee
or any Paying Agent (other than the Company), in trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the Maturity of such
Securities or portions thereof, Eligible Obligations, which shall not contain
provisions permitting the redemption or other prepayment thereof at the option
of the issuer thereof, the principal of and the interest on which when due,
without any regard to reinvestment thereof, will provide moneys which, together
with the money, if any, deposited with or held by the Trustee or such Paying
Agent, shall be sufficient, or
(c) a combination of (a) or (b) which shall be sufficient,
to pay when due the principal of and premium, if any, and interest due and to
become due on such Securities or portions thereof; provided, however, that in
the case of the provision for payment or redemption of less than all the
Securities of any series or Tranche, such Securities or portions thereof shall
have been selected by the Trustee as provided herein and, in the case of a
redemption, the notice requisite to the validity of such redemption shall have
been given or irrevocable authority shall have been given by the Company to the
Trustee to give such notice, under arrangements satisfactory to the Trustee; and
provided, further, that the Company shall have delivered to the Trustee and such
Paying Agent:
(x) if such deposit shall have been made prior to the Maturity
of such Securities, a Company Order stating that the money and Eligible
Obligations deposited in accordance with this Section shall be held in
trust, as provided in Section 603;
(y) if Eligible Obligations shall have been deposited, an
Opinion of Counsel to the effect that such obligations constitute Eligible
Obligations and do not contain provisions permitting the redemption or
other prepayment thereof at the option of the issuer thereof, and an
opinion of an independent public accountant of nationally recognized
standing, selected by the Company, to the effect that the other
requirements set forth in clause (b) and (c) above have been satisfied;
and
(z) if such deposit shall have been made prior to the Maturity
of such Securities, an Officer's Certificate stating the Company's
intention that, upon delivery of such Officer's Certificate, its
indebtedness in respect of such Securities or portions thereof will have
been satisfied and discharged as contemplated in this Section.
Upon the deposit of money or Eligible Obligations, or both, in accordance
with this Section, together with the documents required by clauses (x), (y) and
(z) above, the Trustee shall, upon Company Request, acknowledge in writing that
such Securities or portions thereof are deemed to have been paid for all
purposes of this Indenture and that the entire indebtedness of the Company in
respect thereof has been satisfied and discharged as contemplated in this
Section. In the event that all of the conditions set forth in the preceding
paragraph shall have been satisfied in respect of any Securities or portions
thereof except that, for any reason, the Officer's Certificate specified in
clause (z) (if otherwise required) shall not have been delivered, such
Securities or portions thereof shall nevertheless be deemed to have been paid
for all purposes of this Indenture, and the Holders of such Securities or
portions thereof shall nevertheless be no longer entitled to the benefits
provided by this Indenture or of any of the covenants of the Company under
Article Six (except the covenants contained in Sections 602 and 603) or any
other covenants made in respect of such Securities or portions thereof as
contemplated by Section 301 or Section 1201(b), but the indebtedness of the
Company in respect of such Securities or portions thereof shall not be deemed to
have been satisfied and discharged prior to Maturity for any other purpose; and,
upon Company Request, the Trustee shall acknowledge in writing that such
Securities or portions thereof are deemed to have been paid for all purposes of
this Indenture.
If payment at Stated Maturity of less than all of the Securities of any
series, or any Tranche thereof, is to be provided for in the manner and with the
effect provided in this Section, the Trustee shall select such Securities, or
portions of principal amount thereof, in the manner specified by Section 403 for
selection for redemption of less than all the Securities of a series or Tranche.
In the event that Securities which shall be deemed to have been paid for
purposes of this Indenture, and, if such is the case, in respect of which the
Company's indebtedness shall have been satisfied and discharged, all as provided
in this Section, do not mature and are not to be redeemed within the sixty (60)
day period commencing with the date of the deposit of moneys or Eligible
Obligations, as aforesaid, the Company shall, as promptly as practicable, give a
notice, in the same manner as a notice of redemption with respect to such
Securities, to the Holders of such Securities to the effect that such deposit
has been made and the effect thereof.
Notwithstanding that any Securities shall be deemed to have been paid for
purposes of this Indenture, as aforesaid, the obligations of the Company and the
Trustee in respect of such Securities under Sections 304, 305, 306, 404, 602,
603, 907 and 914 and this Article shall survive.
The Company shall pay, and shall indemnify the Trustee or any Paying Agent
with which Eligible Obligations shall have been deposited as provided in this
Section against, any tax, fee or other charge imposed on or assessed against
such Eligible Obligations or the principal or interest received in respect of
such Eligible Obligations, including, but not limited to, any such tax payable
by any entity deemed, for tax purposes, to have been created as a result of such
deposit.
Anything herein to the contrary notwithstanding, (a) if, at any time after
a Security would be deemed to have been paid for purposes of this Indenture,
and, if such is the case, the Company's indebtedness in respect thereof would be
deemed to have been satisfied and discharged, pursuant to this Section (without
regard to the provisions of this paragraph), the Trustee or any Paying Agent, as
the case may be, (i) shall be required to return the money or Eligible
Obligations, or combination thereof, deposited with it as aforesaid to the
Company or its representative under any applicable Federal or State bankruptcy,
insolvency or other similar law, or (ii) are unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, such Security shall thereupon be
deemed retroactively not to have been paid and any satisfaction and discharge of
the Company's indebtedness in respect thereof shall retroactively be deemed not
to have been effected, and such Security shall be deemed to remain Outstanding
and (b) any satisfaction and discharge of the Company's indebtedness in respect
of any Security shall be subject to the provisions of the last paragraph of
Section 603.
SECTION 702. Satisfaction and Discharge of Indenture
This Indenture shall upon Company Request cease to be of further effect
(except as hereinafter expressly provided), and the Trustee, at the expense of
the Company, shall execute such instruments as the Company shall reasonably
request to evidence and acknowledge the satisfaction and discharge of this
Indenture, when:
(a) no Securities remain Outstanding hereunder; and
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company;
provided, however, that if, in accordance with the last paragraph of Section
701, any Security, previously deemed to have been paid for purposes of this
Indenture, shall be deemed retroactively not to have been so paid, this
Indenture shall thereupon be deemed retroactively not to have been satisfied and
discharged, as aforesaid, and to remain in full force and effect, and the
Company shall execute and deliver such instruments as the Trustee shall
reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge of this Indenture as
aforesaid, the obligations of the Company and the Trustee under Sections 304,
305, 306, 404, 602, 603, 907 and 914 and this Article shall survive.
Upon satisfaction and discharge of this Indenture as provided in this
Section, the Trustee shall turn over to the Company any and all money,
securities and other property then held by the Trustee for the benefit of the
Holders of the Securities (other than money and Eligible Obligations held by the
Trustee pursuant to Section 703) and shall execute and deliver to the Company
such instruments as, in the judgment of the Company, shall be necessary,
desirable or appropriate to effect or evidence the satisfaction and discharge of
this Indenture.
SECTION 703. Application of Trust Money
Neither the Eligible Obligations nor the money deposited pursuant to
Section 701, nor the principal or interest payments on any such Eligible
Obligations, shall be withdrawn or used for any purpose other than, and shall be
held in trust for, the payment of the principal of and premium, if any, and
interest on the Securities or portions of principal amount thereof in respect of
which such deposit was made, all subject, however, to the provisions of Section
603; provided, however, that any cash received from such principal or interest
payments on such Eligible Obligations, if not then needed for such purpose,
shall, to the extent practicable and upon Company Request and delivery to the
Trustee of the documents referred to in clause (y) in the first paragraph of
Section 701, be invested in Eligible Obligations of the type described in clause
(b) in the first paragraph of Section 701 maturing at such times and in such
amounts as shall be sufficient, together with any other moneys and the proceeds
of any other Eligible Obligations then held by the Trustee, to pay when due the
principal of and premium, if any, and interest due and to become due on such
Securities or portions thereof on and prior to the Maturity thereof, and
interest earned from such reinvestment shall be paid over to the Company as
received, free and clear of any trust, lien or pledge under this Indenture
(except the lien provided by Section 907); and provided, further, that any
moneys held in accordance with this Section on the Maturity of all such
Securities in excess of the amount required to pay the principal of and premium,
if any, and interest then due on such Securities shall be paid over to the
Company free and clear of any trust, lien or pledge under this Indenture (except
the lien provided by Section 907); and provided, further, that if an Event of
Default shall have occurred and be continuing, moneys to be paid over to the
Company pursuant to this Section shall be held until such Event of Default shall
have been waived or cured.
ARTICLE EIGHT
Events Of Default; Remedies
SECTION 801. Events of Default
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events:
(a) default in the payment of any interest on any Security of such
series when it becomes due and payable (whether or not payment is prohibited by
the subordination provisions of Article Fifteen) and continuance of such default
for a period of 30 days; provided, however, that a valid extension of the
interest payment period by the Company as contemplated in Section 312 of this
Indenture shall not constitute a default in the payment of interest for this
purpose; or
(b) default in the payment of the principal of or premium, if any,
on any Security of such series when it becomes due and payable (whether or not
payment is prohibited by the subordination provisions of Article Fifteen and
continuance of such default for a period of 3 days); or
(c) default in the performance of, or breach of, any covenant or
warranty of the Company in this Indenture (other than a covenant or warranty a
default in the performance of which or breach of which is elsewhere in this
Section specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of one or more series of Securities other than
such series) and continuance of such default or breach for a period of 90 days
after there has been given, by registered or certified mail, to the Company by
the Trustee, or to the Company and the Trustee by the Holders of at least 33% in
principal amount of the Outstanding Securities of such series, a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder, unless the Trustee, or the
Trustee and the Holders of a principal amount of Securities of such series not
less than the principal amount of Securities the Holders of which gave such
notice, as the case may be, shall agree in writing to an extension of such
period prior to its expiration; provided, however, that the Trustee, or the
Trustee and the Holders of such principal amount of Securities of such series,
as the case may be, shall be deemed to have agreed to an extension of such
period if corrective action is initiated by the Company or the Guarantor within
such period and is being diligently pursued; or
(d) the entry by a court having jurisdiction in the premises of (1)
a decree or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (2) a decree or order adjudging the
Company as bankrupt or insolvent, or approving as properly filed a petition by
one or more Persons other than the Company seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under any applicable
Federal or State law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official for the Company or for any
substantial part of its property, or ordering the winding up or liquidation of
its affairs, and any such decree or order for relief or any such other decree or
order shall have remained unstayed and in effect for a period of 90 consecutive
days; or
(e) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by the Company to the entry
of a decree or order for relief in respect of the Company in a case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against the Company or the filing by the Company
of a petition or answer or consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by the Company to the filing of
such petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar official of the
Company or of any substantial part of its property, or the making by the Company
of an assignment for the benefit of creditors, or the admission by the Company
in writing of its inability to pay its debts generally as they become due, or
the authorization of such action by the Board of Directors of the Company; or
(f) default in the payment of any costs and expenses of the Trust
and continuance of such default for a period of 10 days; or
(g) any other Event of Default specified with respect to Securities
of such series.
SECTION 802. Acceleration of Maturity; Rescission and Annulment
If an Event of Default shall have occurred and be continuing with respect
to Securities of any series at the time Outstanding, then in every such case the
Trustee or the Holders of not less than 33% in principal amount of the
Outstanding Securities of such series may declare the principal amount (or, if
any of the Securities of such series are Discount Securities, such portion of
the principal amount of such Securities as may be specified in the terms thereof
as contemplated by Section 301) of all of the Securities of such series to be
due and payable immediately (provided that the payment of principal and interest
on such Securities shall remain subordinated to the extent provided in this
Indenture), by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon receipt by the Company of notice of such declaration such
principal amount (or specified amount) shall become immediately due and payable;
provided, however, that if an Event of Default shall have occurred and be
continuing with respect to more than one series of Securities, the Trustee or
the Holders of not less than 33% in aggregate principal amount of the
Outstanding Securities of all such series, considered as one class, may make
such declaration of acceleration, and not the Holders of the Securities of any
one of such series (provided that the payment of principal and interest on such
Securities shall remain subordinated to the extent provided in this Indenture).
At any time after such a declaration of acceleration with respect to
Securities of any series shall have been made and before a judgment or decree
for payment of the money due shall have been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if
(a) the Company shall have paid or deposited with the Trustee a sum
sufficient to pay
(1) all overdue interest on all Securities of such series then
Outstanding;
(2) the principal of and premium, if any, on any Securities of
such series then Outstanding which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates
prescribed therefor in such Securities;
(3) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed therefor in
such Securities;
(4) all amounts due to the Trustee under Section 907; and
(b) all Events of Default with respect to Securities of such series,
other than the non-payment of the principal of Securities of such series which
shall have become due solely by such declaration of acceleration, shall have
been cured or waived as provided in Section 813.
No such rescission shall affect any subsequent Event of Default or impair
any right consequent thereon.
SECTION 803. Collection of Indebtedness and Suits for Enforcement
by Trustee
If an Event of Default described in clause (a) or (b) of Section 801 shall
have occurred, the Company shall, upon demand of the Trustee, pay to it, for the
benefit of the Holders of the Securities of the series with respect to which
such Event of Default shall have occurred, the whole amount then due and payable
on such Securities for principal and premium, if any, and interest and, to the
extent permitted by law, interest on premium, if any, and on any overdue
principal and interest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as shall be sufficient
to cover any amounts due to the Trustee under Section 907.
If the Company shall fail to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series shall have
occurred and be continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 804. Trustee May File Proofs of Claim
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal,
premium, if any, and interest owing and unpaid in respect of the Securities and
to file such other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for amounts due to the
Trustee under Section 907) and of the Holders allowed in such judicial
proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amounts due it under Section 907.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, be a member of a creditors' or
similar other committee.
SECTION 805. Trustee May Enforce Claims Without Possession of
Securities
All rights of action and claims under this Indenture, the Securities or
the Guarantees endorsed thereon may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders in respect of which such
judgment has been recovered.
SECTION 806. Application of Money Collected
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, to the extent permitted by law, at the date or
dates fixed by the Trustee and, in case of the distribution of such money on
account of principal or premium, if any, or interest upon presentation of the
Securities in respect of which or for the benefit of which such money shall have
been collected and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section 907;
Second: Subject to the provisions of Article Fifteen, to the payment of
the amounts then due and unpaid upon the Securities for principal of 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 Securities for principal,
premium, if any, and interest, respectively;
Third: To the payment of the remainder, if any, to the Company or to
whomsoever may be lawfully entitled to receive the same or as a court of
competent jurisdiction may direct.
SECTION 807. Limitation on Suits
No Holder shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless:
(a) such Holder shall have previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of such
series;
(b) the Holders of 33% in aggregate principal amount of the
Outstanding Securities of all series in respect of which an Event of Default
shall have occurred and be continuing, considered as one class, shall have made
written request to the Trustee to institute proceedings in respect of such Event
of Default in its own name as Trustee hereunder;
(c) such Holder or Holders shall have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity shall have failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request shall have
been given to the Trustee during such 60-day period by the Holders of a majority
in aggregate principal amount of the Outstanding Securities of all series in
respect of which an Event of Default shall have occurred and be continuing,
considered as one class;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 808. Unconditional Right of Holders to Receive Principal,
Premium and Interest
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and premium, if any, and (subject to Section 307 and
312) interest on such Security on the Stated Maturity or Maturities expressed in
such Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder. In addition, in the case of
Securities of a series held by a Trust, a holder of Preferred Trust Securities
may directly institute a proceeding against the Company for enforcement of
payment to such holder of principal of or interest on the Securities having a
principal amount equal to the aggregate liquidation preference amount of the
Preferred Trust Securities of such holder on or after the due dates specified or
provided for in the Securities.
SECTION 809. Restoration of Rights and Remedies
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee or to such Holder, then and in every such case, subject
to any determination in such proceeding, the Company, the Trustee and such
Holder shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and such Holder
shall continue as though no such proceeding had been instituted.
SECTION 810. Rights and Remedies Cumulative
Except as otherwise provided in the last paragraph of Section 306, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 811. Delay or Omission Not Waiver
No delay or omission of the Trustee or of any Holder to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 812. Control by Holders of Securities
If an Event of Default shall have occurred and be continuing in respect of
a series of Securities, the Holders of a majority in principal amount of the
Outstanding Securities of such series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with respect
to the Securities of such series; provided, however, that if an Event of Default
shall have occurred and be continuing with respect to more than one series of
Securities, the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all such series, considered as one class, shall have
the right to make such direction, and not the Holders of the Securities of any
one of such series; and provided, further, that
(a) such direction shall not be in conflict with any rule of law or
with this Indenture, and could not involve the Trustee in personal liability in
circumstances where indemnity would not, in the Trustee's sole discretion, be
adequate, and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 813. Waiver of Past Defaults
The Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(a) in the payment of the principal of or premium, if any, or
interest on any Security of such series, or
(b) in respect of a covenant or provision hereof which under Section
1202 cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
; provided, however, that so long as a Trust holds the Securities of any series,
such Trust may not waive any past default without the consent of at least a
majority in aggregate liquidation preference of the outstanding Preferred
Securities issued by such Trust affected, obtained as provided in the Trust
Agreement pertaining to such Trust. Any such waiver by holders of a majority in
aggregate liquidation preference of outstanding Preferred Securities issued by
any such Trust shall be deemed to be on behalf of all holders of Preferred
Securities issued by any such Trust.
Upon any such waiver, such default shall cease to exist, and any and all
Events of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 814. Undertaking for Costs
The Company and the Trustee agree, and each Holder by his acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and 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, in each case
in the manner, to the extent, and subject to the exceptions provided in the
Trust Indenture Act; provided, that the provisions of this Section shall not be
deemed to authorize any court to require such an undertaking or to make such an
assessment in any suit instituted by the Company.
SECTION 815. Waiver of Usury, Stay or Extension Laws
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and each of the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
ARTICLE NINE
The Trustee
SECTION 901. Certain Duties and Responsibilities
(a) Except during the continuance of an Event of Default with
respect to Securities of any series,
(1) the Trustee undertakes to perform, with respect to
Securities of such series, such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may,
with respect to Securities of such series, conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of any
such certificates or opinions which by any 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 requirements of this Indenture.
(b) In case an Event of Default with respect to Securities of any
series shall have occurred and be continuing, the Trustee shall exercise, with
respect to Securities of such series, such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this subsection shall not be construed to limit the effect
of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities of any one or more series, as provided herein,
relating to the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect to the
Securities of such series; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the exercise of
any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 902. Notice of Defaults
If a default occurs hereunder with respect to Securities of any series,
the Trustee shall give the Holders of Securities of such series notice of any
default of which the Trustee has actual knowledge within 90 days after a default
occurs hereunder as and to the extent provided by the Trust Indenture Act;
provided, however, that in the case of any default of the character specified in
Section 801(c) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
SECTION 903. Certain Rights of Trustee
Subject to the provisions of Section 901 and to the applicable provisions
of the Trust Indenture Act:
(a) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order, or as otherwise
expressly provided herein, and any resolution of the Board of Directors of the
Company may be sufficiently evidenced by a Board Resolution thereof;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officer's Certificate of the Company;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to expend or risk its
own funds or to exercise, at the request or direction of any of the Holders, any
of the rights or powers vested in it by this Indenture pursuant to this
Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall (subject to
applicable legal requirements) be entitled to examine, during normal business
hours, the books, records and premises of the Company, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) the Trustee shall not be charged with knowledge of any Event of
Default with respect to the Securities of any series for which it is acting as
Trustee unless either (1) a Responsible Officer of the Trustee assigned to the
Corporate Trustee Administration Department and agency group of the Trustee (or
any successor division or department of the Trustee) shall have actual knowledge
of the Event of Default or (2) written notice of such Event of Default shall
have been given to the Trustee by the Company or any other obligor on such
Securities, or by any Holder of such Securities; and
(i) the rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder.
SECTION 904. Not Responsible for Recitals or Issuance of Securities
The recitals contained herein and in the Securities endorsed thereon
(except the Trustee's certificates of authentication) shall be taken as the
statements of the Company, as the case may be, and neither the Trustee nor any
Authenticating Agent assumes responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Securities endorsed thereon. Neither Trustee nor any Authenticating Agent
shall be accountable for the use or application by the Company of Securities or
the proceeds thereof. The Trustee shall not be responsible for doing or
performing any thing or act which the Company shall have covenanted to do or
perform, or for any compliance with any covenant by the Company, nor shall the
Trustee be bound to ascertain or inquire as to the performance of any covenant,
condition or agreement by the Company, but it may require full information and
advice in regard to any of the foregoing.
SECTION 905. May Hold Securities
Each of the Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and/or Preferred
Securities and, subject to Sections 908 and 913, may otherwise deal with the
Company with the same rights it would have if it were not the Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 906. Money Held in Trust
Money held by the Trustee in trust hereunder need not be segregated from
other funds, except to the extent required by law. The Trustee shall be under no
liability for interest on or investment of any money received by it hereunder
except as expressly provided herein or otherwise agreed with, and for the sole
benefit of, the Company.
SECTION 907. Compensation and Reimbursement
The Company agrees
(a) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
reasonably incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence, willful misconduct or bad
faith; and
(c) to indemnify the Trustee and hold it harmless from and against,
any loss, liability or expense reasonably incurred without negligence, willful
misconduct or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
As security for the performance of the obligations of the Company and the
Guarantor under this Section, the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee as such,
other than property and funds held in trust under Section 703 (except moneys
payable to the Company as provided in Section 703).
SECTION 908. Disqualification; Conflicting Interests
If the Trustee shall have or acquire any conflicting interest within the
meaning of the Trust Indenture Act, it shall either eliminate such conflicting
interest or resign to the extent, in the manner and with the effect, and subject
to the conditions, provided in the Trust Indenture Act and this Indenture. For
purposes of Section 310(b)(1) of the Trust Indenture Act and to the extent
permitted thereby, the Trustee, in its capacity as trustee in respect of the
Securities of any series, shall not be deemed to have a conflicting interest
arising from its capacity as trustee in respect of (i) the Securities of any
other series, (ii) the Trust Agreement and the Trust Securities Guarantee
Agreement pertaining to each Trust.
SECTION 909. Corporate Trustee Required; Eligibility
There shall at all times be a Trustee hereunder which shall be
(a) a corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 and subject to supervision or
examination by Federal, State or District of Columbia authority, or
(b) if and to the extent permitted by the Commission by rule,
regulation or order upon application, a corporation or other Person organized
and doing business under the laws of a foreign government, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000 or the Dollar equivalent of the applicable foreign
currency and subject to supervision or examination by authority of such foreign
government or a political subdivision thereof substantially equivalent to
supervision or examination applicable to United States institutional trustees
and, in either case, qualified and eligible under this Article and the Trust
Indenture Act. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of such supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section and the Trust Indenture Act, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 910. Resignation and Removal; Appointment of Successor
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 911.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 911 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Trustee, the
Company; provided that so long as any Preferred Securities remain outstanding,
the Trust which issued such Preferred Securities shall not execute any Act to
remove the Trustee without the consent of the holders of a majority in aggregate
liquidation preference of Preferred Securities issued by such Trust outstanding,
obtained as provided in the Trust Agreement pertaining to such Trust.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 908 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder for at least six months, or
(2) the Trustee shall cease to be eligible under Section 909
or Section 310(a) of the Trust Indenture Act and shall fail to resign
after written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (x) the Company by Board Resolutions may remove the
Trustee with respect to all Securities or (y) subject to Section 814, any Holder
who has been a bona fide Holder for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause
(other than as contemplated by clause (y) in subsection (d) or this Section),
with respect to the Securities of one or more series, the Company, by Board
Resolutions, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time (subject to Section 915) there shall
be only one Trustee with respect to the Securities of any particular series) and
shall comply with the applicable requirements of Section 911. If, within one
year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
911, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 911, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of itself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(f) So long as no event which is, or after notice or lapse of time,
or both, would become, an Event of Default shall have occurred and be
continuing, and except with respect to a Trustee appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities pursuant to
subsection (e) of this Section, if the Company shall have delivered to the
Trustee (i) Board Resolutions of the Company appointing a successor Trustee,
effective as of a date specified therein, and (ii) an instrument of acceptance
of such appointment, effective as of such date, by such successor Trustee in
accordance with Section 911, the Trustee shall be deemed to have resigned as
contemplated in subsection (b) of this Section, the successor Trustee shall be
deemed to have been appointed by the Company pursuant to subsection (e) of this
Section and such appointment shall be deemed to have been accepted as
contemplated in Section 911, all as of such date, and all other provisions of
this Section and Section 911 shall be applicable to such resignation,
appointment and acceptance except to the extent inconsistent with this
subsection (f).
(g) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
to all Holders of Securities of such series in the manner provided in Section
106. Each notice shall include the name of the successor Trustee with respect to
the Securities of such series and the address of its Corporate Trust Office.
SECTION 911. Acceptance of Appointment by Successor
(a) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of all series, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company 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 all sums owed to it, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee, upon payment of all sums owed to it, shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
subsection (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 912. Merger, Conversion, Consolidation or Succession to
Business
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 913. Preferential Collection of Claims Against Company
(a) Subject to Subsection (b) of this Section 913, if the Trustee
shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Company within three months prior to a default, as defined in
Subsection (c) of this Section 913, or subsequent to such a default, then,
unless and until such default shall be cured, the Trustee shall set apart and
hold in a special account for the benefit of the Trustee individually, the
Holders of the Securities and the holders of other indenture securities, as
defined in Subsection (c) of this Section 913:
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of
principal or interest, effected after the beginning of such
three-month period and valid as against the Company and its other
creditors, except any such reduction resulting from the receipt or
disposition of any property described in paragraph (2) of this
Subsection, or from the exercise of any right of set-off which the
Trustee could have exercised if a petition in bankruptcy had been
filed by or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any
claims as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the
beginning of such three-month period, or an amount equal to the
proceeds of any such property, if disposed of, subject, however, to
the rights, if any, of the Company and its other creditors in such
property or such proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
(A) to retain for its own account (i) payments made on account
of any such claim by any Person (other than the Company) who is liable
thereon, and (ii) the proceeds of the bona fide sale of any such claim by
the Trustee to a third Person, and (iii) distributions made in cash,
securities or other property in respect of claims filed against the
Company in bankruptcy or receivership or in proceedings for reorganization
pursuant to the Federal Bankruptcy Act or applicable State law;
(B) to realize, for its own account, upon any property held by
it as security for any such claim, if such property was so held prior to
the beginning of such three-month period;
(C) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as security
for any such claim, if such claim was created after the beginning of such
three-month period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee shall sustain
the burden of proving that at the time such property was so received the
Trustee had no reasonable cause to believe that a default, as defined in
Subsection (c) of this Section 913, would occur within three months; or
(D) to receive payment on any claim referred to in paragraph
(B) or (C), against the release of any property held as security for such
claim as provided in paragraph (B) or (C), as the case may be, to the
extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such three-month period for property held as
security at the time of such substitution shall, to the extent of the fair value
of the property released, have the same status as the property released, and, to
the extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing, claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned among
the Trustee, the Holders and the holders of other indenture securities in such
manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law, the same percentage of their respective
claims, figured before crediting to the claim of the Trustee anything on account
of the receipt by it from the Company of the funds and property in such special
account and before crediting to the respective claims of the Trustee and the
Holders and the holders of other indenture securities dividends on claims filed
against the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable State law,
but after crediting thereon receipts on account of the Indebtedness represented
by their respective claims from all sources other than from such dividends and
from the funds and property so held in such special account. As used in this
paragraph, with respect to any claim, the term "dividends" shall include any
distribution with respect to such claim, in bankruptcy or receivership or
proceedings for reorganization pursuant to the Federal Bankruptcy Act or
applicable State law, whether such distribution is made in cash, securities or
other property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership or proceedings for reorganization is pending shall have
jurisdiction (i) to apportion among the Trustee, the Holders and the holders of
other indenture securities, in accordance with the provisions of this paragraph,
the funds and property held in such special account and proceeds thereof, or
(ii) in lieu of such apportionment, in whole or in part, to give to the
provisions of this paragraph due consideration in determining the fairness of
the distributions to be made to the Trustee and the Holders and the holders of
other indenture securities with respect to their respective claims, in which
event it shall not be necessary to liquidate or to appraise the value of any
securities or other property held in such special account or as security for any
such claim, or to make a specific allocation of such distributions as between
the secured and unsecured portions of such claims, or otherwise to apply the
provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning
of such three-month period shall be subject to the provisions of this Subsection
as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three-month period, it
shall be subject to the provisions of this Subsection if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim, which would
have given rise to the obligation to account, if such Trustee had
continued as Trustee, occurred after the beginning of such three-month
period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection (a) of
this Section 913 a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under
any indenture, or any security or securities having a maturity of
one year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court
of competent jurisdiction or by this Indenture, for the purpose of
preserving any property which shall at any time be subject to the
lien of this Indenture or of discharging tax liens or other prior
liens or encumbrances thereon, if notice of such advances and of the
circumstances surrounding the making thereof is given to the Holders
at the time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in
the capacity of trustee under an indenture, transfer agent,
registrar, custodian, paying agent, fiscal agent or depository, or
other similar capacity;
(4) an Indebtedness created as a result of services rendered
or premises rented; or an Indebtedness created as a result of goods
or securities sold in a cash transaction, as defined in Subsection
(c) of this Section 913;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; and
(6) the acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper, as defined in
Subsection (c) of this Section 913.
(c) For the purposes of this Section 913 only:
(1) the term "default" means any failure to make payment in
full of the principal of or interest on any of the Securities or
upon the other indenture securities when and as such principal or
interest becomes due and payable;
(2) the term "other indenture securities" means securities
upon which the Company is an obligor (as defined in the Trust
Indenture Act) outstanding under any other indenture (i) under which
the Trustee is also trustee, (ii) which contains provisions
substantially similar to the provisions of this Section 913, and
(iii) under which a default exists at the time of the apportionment
of the funds and property held in such special account;
(3) the term "cash transaction" means any transaction in which
full payment for goods or securities sold is made within seven days
after delivery of the goods or securities in currency or in checks
or other orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" means any draft, ▇▇▇▇ of
exchange, acceptance or obligation which is made, drawn, negotiated
or incurred by the Company for the purpose of financing the
purchase, processing, manufacturing, shipment, storage or sale of
goods, wares or merchandise and which is secured by documents
evidencing title to, possession of, or a lien upon, the goods, wares
or merchandise or the receivables or proceeds arising from the sale
of the goods, wares or merchandise previously constituting the
security, provided the security is received by the Trustee
simultaneously with the creation of the creditor relationship with
the Company arising from the making, drawing, negotiating or
incurring of the draft, ▇▇▇▇ of exchange, acceptance or obligation;
(5) the term "Company" means any obligor upon the Securities;
and
(6) the term "Federal Bankruptcy Act" means the Bankruptcy
Code or Title 11 of the United States Code.
SECTION 914. Appointment of Authenticating Agent
The Trustee may appoint an Authenticating Agent or Agents with respect to
the Securities of one or more series, or any Tranche thereof, which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series or Tranche issued upon original issuance, exchange, registration of
transfer or partial redemption thereof or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State or territory thereof
or the District of Columbia or the Commonwealth of Puerto Rico, authorized under
such laws to act as Authenticating Agent, having a combined capital and surplus
of not less than $50,000,000 and subject to supervision or examination by
Federal or State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee, and the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section.
Unless appointed at the request of the Company pursuant to the last
paragraph of this Section 914, the Trustee agrees to pay to each Authenticating
Agent from time to time reasonable compensation for its services under this
Section, and the Trustee shall be entitled to be reimbursed for such payments,
in accordance with and subject to the provisions of Section 907.
The provisions of Sections 308, 904 and 905 shall be applicable to each
Authenticating Agent.
If an appointment with respect to the Securities of one or more series, or
any Tranche thereof, shall be made pursuant to this Section, the Securities of
such series or Tranche may have endorsed thereon, in addition to the Trustee's
certificate of authentication, an alternate certificate of authentication
substantially in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
-------------------------------------
As Trustee
By ___________________________________
As Authenticating Agent
By ___________________________________
Authorized Officer
If all of the Securities of a series may not be originally issued at one
time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested by the Company in writing (which writing
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel), shall appoint, in accordance with this Section and in accordance with
such procedures as shall be acceptable to the Trustee, an Authenticating Agent
having an office in a Place of Payment designated by the Company with respect to
such series of Securities.
SECTION 915. Co-trustee and Separate Trustees
At any time or times, for the purpose of meeting the legal requirements of
any applicable jurisdiction, the Company and the Trustee shall have power to
appoint, and, upon the written request of the Trustee or of the Holders of at
least 33% in principal amount of the Securities then Outstanding, the Company
shall for such purpose join with the Trustee in the execution and delivery of
all instruments and agreements necessary or proper to appoint, one or more
Persons approved by the Trustee either to act as co-trustee, jointly with the
Trustee, or to act as separate trustee, in either case with such powers as may
be provided in the instrument of appointment, and to vest in such Person or
Persons, in the capacity aforesaid, any property, title, right or power deemed
necessary or desirable, subject to the other provisions of this Section. If the
Company does not join in such appointment within 15 days after the receipt by it
of a request so to do, or if an Event of Default shall have occurred and be
continuing, the Trustee alone shall have power to make such appointment.
Should any written instrument or instruments from the Company be required
by any co-trustee or separate trustee to more fully confirm to such co-trustee
or separate trustee such property, title, right or power, any and all such
instruments shall, on request, be executed, acknowledged and delivered by the
Company, as the case may be.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following conditions:
(a) the Securities shall be authenticated and delivered, and all
rights, powers, duties and obligations hereunder in respect of the custody of
securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustee hereunder, shall be exercised solely, by
the Trustee;
(b) the rights, powers, duties and obligations hereby conferred or
imposed upon the Trustee in respect of any property covered by such appointment
shall be conferred or imposed upon and exercised or performed either by the
Trustee or by the Trustee and such co-trustee or separate trustee jointly, as
shall be provided in the instrument appointing such co-trustee or separate
trustee, except to the extent that under any law of any jurisdiction in which
any particular act is to be performed, the Trustee shall be incompetent or
unqualified to perform such act, in which event such rights, powers, duties and
obligations shall be exercised and performed by such co-trustee or separate
trustee.
(c) the Trustee at any time, by an instrument in writing executed by
it, with the concurrence of the Company, may accept the resignation of or remove
any co-trustee or separate trustee appointed under this Section, and, if an
Event of Default shall have occurred and be continuing, the Trustee shall have
power to accept the resignation of, or remove, any such co-trustee or separate
trustee without the concurrence of the Company. Upon the written request of the
Trustee, the Company shall join with the Trustee in the execution and delivery
of all instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate trustee so
resigned or removed may be appointed in the manner provided in this Section;
(d) no co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Trustee, or any other such
trustee hereunder, and the Trustee shall not be personally liable by reason of
any act or omission of any such co-trustee or separate trustee; and
(e) any Act of Holders delivered to the Trustee shall be deemed to
have been delivered to each such co-trustee and separate trustee.
ARTICLE TEN
Holders' Lists And Reports By Trustee And Company
SECTION 1001. Lists of Holders
Semiannually, not later than June 30 and December 31 in each year, and at
such other times as the Trustee may request in writing (within 30 days after the
receipt by the Company of any such request), the Company shall furnish or cause
to be furnished to the Trustee information as to the names and addresses of the
Holders, and the Trustee shall preserve such information and similar information
received by it in any other capacity and afford to the Holders access to
information so preserved by it, all to such extent, if any, and in such manner
as shall be required by the Trust Indenture Act; provided, however, that no such
list need be furnished so long as the Trustee shall be the Security Registrar.
SECTION 1002. Reports by Trustee and Company
The Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the time and in the manner provided pursuant thereto. Reports
so required to be transmitted at stated intervals of not more than 12 months
shall be transmitted no later than November 15 in each calendar year with
respect to the 12-month period ending on the preceding September 15 commencing
September 15, 2004. A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
The Company shall file with the Trustee (within thirty (30) days after
filing with the Commission in the case of reports that pursuant to the Trust
Indenture Act must be filed with the Commission and furnished to the Trustee)
and transmit to the Holders, such other information, reports and other
documents, if any, at such times and in such manner, as shall be required by the
Trust Indenture Act.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE ELEVEN
Consolidation, Merger, Conveyance, Or Other Transfer
SECTION 1101. Company May Consolidate, Etc., Only on Certain Terms
The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, unless
(a) the Person formed by such consolidation or into which the
Company, is merged or the Person which acquires by conveyance or transfer, or
which leases, the properties and assets of the Company, substantially as an
entirety shall be a Person organized and existing under the laws of the United
States, any State thereof or the District of Columbia, and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment of
the principal of and premium, if any, and interest on all Outstanding Securities
and the performance of every covenant of this Indenture on the part of the
Company, to be performed or observed;
(b) immediately after giving effect to such transaction, 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; and
(c) the Company, shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance or other transfer or lease and such indenture supplemental
hereto complies with this Article and that all conditions precedent herein
provided for relating to such transactions have been complied with.
SECTION 1102. Successor Person Substituted
Upon any consolidation by the Company with or merger by the Company into
any other Person or any conveyance or other transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 1101, the successor Person formed by such consolidation or into which
the Company, is merged or the Person to which such conveyance, or other transfer
or lease is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company, under this Indenture with the same effect
as if such successor Person had been named as the Company, herein, and
thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities Outstanding hereunder.
SECTION 1103. Limitation
Nothing in this Indenture shall be deemed to prevent or restrict:
(a) any consolidation or merger after the consummation of which the
Company would be the surviving or resulting entity,
(b) any conveyance or other transfer, or lease, of any part of the
properties of the Company which does not constitute the entirety, or
substantially the entirety, thereof or
(c) the approval by the Company of, or the consent by the Company
to, any consolidation or merger to which any direct or indirect subsidiary or
affiliate of the Company, may be a party or any conveyance, transfer or lease by
any such subsidiary or affiliate of any of its assets.
ARTICLE TWELVE
Supplemental Indentures
SECTION 1201. Supplemental Indentures Without Consent of Holders
Without the consent of any Holders, the Company and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein and
in the Securities all as provided in Article Eleven; or
(b) to add one or more covenants of the Company or other provisions
for the benefit of the Holders of all or any series of Securities, or any
Tranche thereof or to surrender any right or power herein conferred upon the
Company (and if such covenants are to be for the benefit of less than all series
of Securities, stating that such covenants are expressly being included solely
for the benefit of such series); or
(c) to add any additional Events of Default with respect to all or
any series of Securities Outstanding hereunder (and if such additional Events of
Default are to be for the benefit of less than all series of Securities, stating
that such additional Events of Default are expressly being included solely for
the benefit of such series); or
(d) to change or eliminate any provision of this Indenture or to add
any new provision to this Indenture; provided, however, that if such change,
elimination or addition shall adversely affect the interests of the Holders of
Securities of any series or Tranche Outstanding on the date of such supplemental
indenture in any material respect, such change, elimination or addition shall
become effective with respect to such series or Tranche only pursuant to the
provisions of Section 1202 hereof or when no Security of such series or Tranche
remains Outstanding; or
(e) to provide collateral security for the Securities of any series;
or
(f) to establish the form or terms of Securities of any series or
Tranche or any Guarantees as contemplated by Sections 201 and 301; or
(g) to provide for the authentication and delivery of bearer
securities and coupons appertaining thereto representing interest thereon and
for the procedures for the registration, exchange and replacement thereof and
for the giving of notice to, and the solicitation of the vote or consent of, the
holders thereof, and for any and all other matters incidental thereto; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a separate or successor Trustee or co-trustee with respect to the
Securities of one or more series and to add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 911(b); or
(i) to provide for the procedures required to permit the Company to
utilize, at its option, a non certificated system of registration for all, or
any series or Tranche of, the Securities; or
(j) to change any place or places where (1) the principal of and
premium, if any, and interest on all or any series of Securities, or any Tranche
thereof, shall be payable, (2) all or any series of Securities, or any Tranche
thereof, may be surrendered for registration of transfer, (3) all or any series
of Securities, or any Tranche thereof, may be surrendered for exchange and (4)
notices and demands to or upon the Company in respect of all or any series of
Securities, or any Tranche thereof, and this Indenture may be served; or
(k) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein,
or to make any other changes to the provisions hereof or to add other provisions
with respect to matters or questions arising under this Indenture, provided that
such other changes or additions shall not adversely affect the interests of the
Holders of Securities of any series or Tranche in any material respect.
Without limiting the generality of the foregoing, if the Trust Indenture
Act as in effect at the date of the execution and delivery of this Indenture or
at any time thereafter shall be amended and
(x) if any such amendment shall require one or more changes to
any provisions hereof or the inclusion herein of any additional
provisions, or shall by operation of law be deemed to effect such changes
or incorporate such provisions by reference or otherwise, this Indenture
shall be deemed to have been amended so as to conform to such amendment to
the Trust Indenture Act, and the Company and the Trustee may, without the
consent of any Holders, enter into an indenture supplemental hereto to
evidence such amendment hereof; or
(y) if any such amendment shall permit one or more changes to,
or the elimination of, any provisions hereof which, at the date of the
execution and delivery hereof or at any time thereafter, are required by
the Trust Indenture Act to be contained herein or are contained herein to
reflect any provision of the Trust Indenture Act as in effect at such
date, this Indenture shall be deemed to have been amended to effect such
changes or elimination, and the Company, the Guarantor and the Trustee
may, without the consent of any Holders, enter into an indenture
supplemental hereto to this Indenture to effect such changes or
elimination or evidence such amendment.
SECTION 1202. Supplemental Indentures With Consent of Holders
Subject to the provisions of Section 1201, with the consent of the Holders
of not less than a majority in aggregate principal amount of the Securities of
all series then Outstanding under this Indenture, considered as one class, by
Act of said Holders delivered to the Company and the Trustee, the Company and
the Guarantor, when authorized by Board Resolutions, and the Trustee may enter
into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to, or changing in any manner or eliminating any of the
provisions of, this Indenture; provided, however, that if there shall be
Securities of more than one series Outstanding hereunder and if a proposed
supplemental indenture shall directly affect the rights of the Holders of
Securities of one or more, but less than all, of such series, then the consent
only of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series so directly affected, considered as one
class, shall be required; and provided, further, that if the Securities of any
series shall have been issued in more than one Tranche and if the proposed
supplemental indenture shall directly affect the rights of the Holders of
Securities of one or more, but less than all, of such Tranches, then the consent
only of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all Tranches so directly affected, considered as one
class, shall be required; and provided, further, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
of each series or Tranche so directly affected,
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on (except as provided in Section 312
hereof), any Security (other than pursuant to the terms thereof), or reduce the
principal amount thereof or the rate of interest thereon (or the amount of any
installment of interest thereon) or change the method of calculating such rate
or reduce any premium payable upon the redemption thereof, or reduce the amount
of the principal of a Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 802, or
change the coin or currency (or other property), in which any Security or any
premium or the interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption Date), or
(b) reduce the percentage in principal amount of the Outstanding
Securities of any series (or, if applicable, in liquidation preference of any
series of Preferred Securities) or any Tranche thereof, the consent of the
Holders of which is required for any such supplemental indenture, or the consent
of the Holders of which is required for any waiver of compliance with any
provision of this Indenture or of any default hereunder and its consequences, or
reduce the requirements of Section 1304 for quorum or voting, or
(c) modify any of the provisions of this Section, Section 606 or
Section 813 with respect to the Securities of any series or any Tranche thereof,
except to increase the percentages in principal amount referred to in this
Section or such other Sections or to provide that other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby; provided, however, that this clause shall
not be deemed to require the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant changes in this Section, or the
deletion of this proviso, in accordance with the requirements of Sections 911(b)
and 1201(h).
Notwithstanding the foregoing, so long as any of the Preferred Securities
remain outstanding, the Trustee may not consent to a supplemental indenture
under this Section 1202 without the prior consent, obtained as provided in a
Trust Agreement pertaining to a Trust which issued such Preferred Securities, of
the holders of not less than a majority in aggregate liquidation preference of
all Preferred Securities issued by such Trust affected, considered as one class,
or, in the case of changes described in clauses (a), (b) and (c) above, 100% in
aggregate liquidation preference of all such Preferred Securities then
outstanding which would be affected thereby, considered as one class. A
supplemental indenture which (x) changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of the Holders of, or which is to remain in effect only so long as there
shall be Outstanding, Securities of one or more particular series, or one or
more Tranches thereof, or (y) modifies the rights of the Holders of Securities
of such series or Tranches with respect to such covenant or other provision,
shall be deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series or Tranche.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 1203. Execution of Supplemental Indentures
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 901) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties, immunities or liabilities under this Indenture or
otherwise.
SECTION 1204. Effect of Supplemental Indentures
Upon the execution of any supplemental indenture under this Article this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby. Any supplemental indenture permitted by this Article may
restate this Indenture in its entirety, and, upon the execution and delivery
thereof, any such restatement shall supersede this Indenture as theretofore in
effect for all purposes.
SECTION 1205. Conformity With Trust Indenture Act
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 1206. Reference in Securities to Supplemental Indentures
Securities of any series, or any Tranche thereof, authenticated and
delivered after the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of any series, or
any Tranche thereof, so modified as to conform, in the opinion of the Trustee
and the Company, to any such supplemental indenture may be prepared and executed
by the Company, and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series or Tranche.
SECTION 1207. Modification Without Supplemental Indenture
To the extent, if any, that the terms of any particular series of
Securities shall have been established in or pursuant to a Board Resolution or
an Officer's Certificate pursuant to a supplemental indenture or Board
Resolution as contemplated by Section 301, and not in an indenture supplemental
hereto, additions to, changes in or the elimination of any of such terms may be
effected by means of a supplemental Board Resolution or Officer's Certificate,
as the case may be, delivered to, and accepted by, the Trustee; provided,
however, that such supplemental Board Resolution or Officer's Certificate shall
not be accepted by the Trustee or otherwise be effective unless all conditions
set forth in this Indenture which would be required to be satisfied if such
additions, changes or elimination were contained in a supplemental indenture
shall have been appropriately satisfied. Upon the acceptance thereof by the
Trustee, any such supplemental Board Resolution or Officer's Certificate shall
be deemed to be a "supplemental indenture" for purposes of Section 1204 and
1206.
ARTICLE THIRTEEN
Meetings Of Holders; Action Without Meeting
SECTION 1301. Purposes for Which Meetings May Be Called
A meeting of Holders of Securities of one or more, or all, series, or any
Tranche or Tranches thereof, may be called at any time and from time to time
pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series or Tranches.
SECTION 1302. Call, Notice and Place of Meetings
(a) The Trustee may at any time call a meeting of Holders of
Securities of one or more, or all, series, or any Tranche or Tranches thereof,
for any purpose specified in Section 1301, to be held at such time and at such
place in the Borough of Manhattan, The City of New York, as the Trustee shall
determine, or, with the approval of the Company, at any other place. Notice of
every such meeting, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be given,
in the manner provided in Section 106, not less than 21 nor more than 180 days
prior to the date fixed for the meeting.
(b) If the Trustee shall have been requested to call a meeting of
the Holders of Securities of one or more, or all, series, or any Tranche or
Tranches thereof, by the Company, the Guarantor or by the Holders of 33% in
aggregate principal amount of all of such series and Tranches, considered as one
class, for any purpose specified in Section 1301, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have given the notice of such meeting within 21 days after
receipt of such request or shall not thereafter proceed to cause the meeting to
be held as provided herein, then the Company, the Guarantor or the Holders of
Securities of such series and Tranches in the amount above specified, as the
case may be, may determine the time and the place in the Borough of Manhattan,
The City of New York, or in such other place as shall be determined or approved
by the Company or the Guarantor, for such meeting and may call such meeting for
such purposes by giving notice thereof as provided in subsection (a) of this
Section.
(c) Any meeting of Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, shall be valid without notice if the
Holders of all Outstanding Securities of such series or Tranches are present in
person or by proxy and if representatives of the Company, the Guarantor and the
Trustee are present, or if notice is waived in writing before or after the
meeting by the Holders of all Outstanding Securities of such series, or by such
of them as are not present at the meeting in person or by proxy, and by the
Company, the Guarantor and the Trustee.
SECTION 1303. Persons Entitled to Vote at Meetings
To be entitled to vote at any meeting of Holders of Securities of one or
more, or all, series, or any Tranche or Tranches thereof, a Person shall be (a)
a Holder of one or more Outstanding Securities of such series or Tranches, or
(b) a Person appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series or Tranches by such
Holder or Holders. The only Persons who shall be entitled to attend any meeting
of Holders of Securities of any series or Tranche shall be the Persons entitled
to vote at such meeting and their counsel, any representatives of the Trustee
and its counsel and any representatives of the Company and the Guarantor and
their counsel.
SECTION 1304. Quorum; Action
The Persons entitled to vote a majority in aggregate principal amount of
the Outstanding Securities of the series and Tranches with respect to which a
meeting shall have been called as hereinbefore provided, considered as one
class, shall constitute a quorum for a meeting of Holders of Securities of such
series and Tranches; provided, however, that if any action is to be taken at
such meeting which this Indenture expressly provides may be taken by the Holders
of a specified percentage, which is less than a majority, in principal amount of
the Outstanding Securities of such series and Tranches, considered as one class,
the Persons entitled to vote such specified percentage in principal amount of
the Outstanding Securities of such series and Tranches, considered as one class,
shall constitute a quorum. In the absence of a quorum within one hour of the
time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series and Tranches, be dissolved. In
any other case the meeting may be adjourned for such period as may be determined
by the chairman of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may be
further adjourned for such period as may be determined by the chairman of the
meeting prior to the adjournment of such adjourned meeting. Except as provided
by Section 1305(e), notice of the reconvening of any meeting adjourned for more
than 30 days shall be given as provided in Section 1302(a) not less than ten
days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Securities of such series and Tranches which shall constitute a quorum.
Except as limited by Section 1202, any resolution presented to a meeting
or adjourned meeting duly reconvened at which a quorum is present as aforesaid
may be adopted only by the affirmative vote of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of the series and
Tranches with respect to which such meeting shall have been called, considered
as one class; provided, however, that, except as so limited, any resolution with
respect to any action which this Indenture expressly provides may be taken by
the Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of such series and Tranches,
considered as one class, may be adopted at a meeting or an adjourned meeting
duly reconvened and at which a quorum is present as aforesaid by the affirmative
vote of the Holders of such specified percentage in principal amount of the
Outstanding Securities of such series and Tranches, considered as one class.
Any resolution passed or decision taken at any meeting of Holders of
Securities duly held in accordance with this Section shall be binding on all the
Holders of Securities of the series and Tranches with respect to which such
meeting shall have been held, whether or not present or represented at the
meeting.
SECTION 1305. Attendance at Meetings; Determination of Voting
Rights; Conduct and Adjournment of Meetings
(a) Attendance at meetings of Holders of Securities may be in person
or by proxy; and, to the extent permitted by law, any such proxy shall remain in
effect and be binding upon any future Holder of the Securities with respect to
which it was given unless and until specifically revoked by the Holder or future
Holder of such Securities before being voted.
(b) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities in regard to proof of the holding of such
Securities and of the appointment of proxies and in regard to the appointment
and duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem appropriate. Except as
otherwise permitted or required by any such regulations, the holding of
Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104.
Such regulations may provide that written instruments appointing proxies,
regular on their face, may be presumed valid and genuine without the proof
specified in Section 104 or other proof.
(c) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders as provided in Section 1302(b), in which case the
Company or the Holders of Securities of the series and Tranches calling the
meeting, as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in aggregate principal amount
of the Outstanding Securities of all series and Tranches represented at the
meeting, considered as one class.
(d) At any meeting each Holder or proxy shall be entitled to one
vote for each $1,000 principal amount of Securities held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder of a Security or proxy.
(e) Any meeting duly called pursuant to Section 1302 at which a
quorum is present may be adjourned from time to time by Persons entitled to vote
a majority in aggregate principal amount of the Outstanding Securities of all
series and Tranches represented at the meeting, considered as one class; and the
meeting may be held as so adjourned without further notice.
SECTION 1306. Counting Votes and Recording Action of Meetings
The vote upon any resolution submitted to any meeting of Holders shall be
by written ballots on which shall be subscribed the signatures of the Holders or
of their representatives by proxy and the principal amounts and serial numbers
of the Outstanding Securities, of the series and Tranches with respect to which
the meeting shall have been called, held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports of all
votes cast at the meeting. A record, in duplicate, of the proceedings of each
meeting of Holders shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of votes
on any vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1302 and, if
applicable, Section 1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
SECTION 1307. Action Without Meeting
In lieu of a vote of Holders at a meeting as hereinbefore contemplated in
this Article, any request, demand, authorization, direction, notice, consent,
waiver or other action may be made, given or taken by Holders by written
instruments as provided in Section 104.
ARTICLE FOURTEEN
Defeasance and Covenant Defeasance
SECTION 1401. Company's Option To Effect Defeasance Or Covenant
Defeasance
The Company may elect, at its option at any time, to have Section 1402 or
Section 1403 applied to any Securities or any series of Securities, as the case
may be, designated pursuant to Section 301 as being defeasible pursuant to such
Section 1402 or 1403, in accordance with any applicable requirements provided
pursuant to Section 301 and upon compliance with the conditions set forth below
in this Article. Any such election shall be evidenced by a Board Resolution or
in another manner specified as contemplated by Section 301 for such Securities.
SECTION 1402. Defeasance And Discharge
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, the
Company shall be deemed to have been discharged from its obligations with
respect to such Securities as provided in this Section, and the provisions of
Article Fifteen shall cease to be effective, on and after the date the
conditions set forth in Section 1404 are satisfied (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by such
Securities and to have satisfied all its other obligations under such Securities
and this Indenture insofar as such Securities are concerned (and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until otherwise terminated
or discharged hereunder: (1) the rights of Holders of such Securities to
receive, solely from the trust fund described in Section 1404 and as more fully
set forth in such Section, payments in respect of the principal of and any
premium and interest on such Securities when payments are due, (2) the Company's
obligations with respect to such Securities under Sections 304, 305, 306, 602
and 603, (3) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (4) this Article. Subject to compliance with this Article, the
Company may exercise its option (if any) to have this Section applied to any
Securities notwithstanding the prior exercise of its option (if any) to have
Section 1403 applied to such Securities.
SECTION 1403. Covenant Defeasance
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, (1)
the Company shall be released from its obligations under Section1101(c) and any
covenants provided pursuant to Section 1201(b) or 1201(f) for the benefit of the
Holders of such Securities; (2) the provisions of Article Fifteen shall cease to
be effective; and (3) the occurrence of any event specified in Section 801(c)
(with respect to any of Section 1101(c) and any such covenants provided pursuant
to Section 1201(b) or 1201(f) and 801(f) shall be deemed not to be or result in
an Event of Default, in each case with respect to such Securities as provided in
this Section on and after the date the conditions set forth in Section 1404 are
satisfied (hereinafter called "Covenant Defeasance"). For this purpose, such
Covenant Defeasance means that, with respect to such Securities, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such specified Section (to the extent
so specified in the case of Section 801(c), whether directly or indirectly by
reason of any reference elsewhere herein to any such Section or by reason of any
reference in any such Section to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.
Securities issued to a Trust will not be subject to Covenant Defeasance.
SECTION 1404. Conditions To Defeasance Or Covenant Defeasance
The following shall be the conditions to the application of Section 1402
or Section 1403 to any Securities or any series of Securities, as the case may
be:
(1)...The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the requirements
contemplated by Section 909 and agrees to comply with the provisions of this
Article applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities, (A) money in an amount, or
(B) U.S. Government Obligations which through the scheduled payment of principal
and interest in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, money in an amount, or
(C) a combination thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or any such other qualifying trustee)
to pay and discharge, the principal of and any premium and interest on such
Securities on the respective Stated Maturities, in accordance with the terms of
this Indenture and such Securities. Before such a deposit, the Company may make
arrangements satisfactory to the Trustee for the redemption of Securities at a
future date or dates, which shall be given effect in applying the foregoing. As
used herein, "U.S. Government Obligation" means (x) any security which is (i) a
direct obligation of the United States of America for the payment of which the
full faith and credit of the United States of America is pledged, or (ii) an
obligation of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case (i) or (ii), is not callable or
redeemable at the option of the issuer thereof, and (y) any depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any U.S. Government Obligation which is specified in
Clause (x) above and held by such bank for the account of the holder of such
depositary receipt, or with respect to any specific payment of principal of or
interest on any U.S. Government Obligation which is so specified and held,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depositary
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of principal or interest evidenced
by such depositary receipt.
(2)...In the event of an election to have Section 1402 apply to any
Securities or any series of Securities, as the case may be, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (A) the Company
has received from, or there has been published by, the Internal Revenue Service
a ruling or (B) since the date of this instrument, there has been a change in
the applicable Federal income tax law, in either case (A) or (B) to the effect
that, and based thereon such opinion shall confirm that, the Holders of such
Securities will not recognize gain or loss for Federal income tax purposes as a
result of the deposit, Defeasance and discharge to be effected with respect to
such Securities and will be subject to Federal income tax on the same amount, in
the same manner and at the same times as would be the case if such deposit,
Defeasance and discharge were not to occur.
(3)...In the event of an election to have Section 1403 apply to any
Securities or any series of Securities, as the case may be, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Securities will not recognize gain or loss for Federal income
tax purposes as a result of the deposit and Covenant Defeasance to be effected
with respect to such Securities and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would be the case if
such deposit and Covenant Defeasance were not to occur.
(4)...The Company shall have delivered to the Trustee an Officers'
Certificate to the effect that neither such Securities nor any other Securities
of the same series, if then listed on any securities exchange, will be delisted
as a result of such deposit.
(5)...No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities or any other
Securities shall have occurred and be continuing at the time of such deposit or,
with regard to any such event specified in Sections 801(d) and (e), at any time
on or prior to the 91st day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until after such 91st day).
(6)...No event or condition shall exist that, pursuant to the provisions
of Article Fifteen, would prevent the Company from making payments of the
principal of (and any premium) or interest on the Securities of such series on
the date of such deposit or at any time on or prior to the 91st day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until after such 91st day).
(7)...Such Defeasance or Covenant Defeasance shall not cause the Trustee
to have a conflicting interest within the meaning of the Trust Indenture Act
(assuming all Securities are in default within the meaning of such Act).
(8)...Such Defeasance or Covenant Defeasance shall not result in a breach
or violation of, or constitute a default under, any other agreement or
instrument to which the Company is a party or by which it is bound.
(9)...Such Defeasance or Covenant Defeasance shall not result in the trust
arising from such deposit constituting an investment company within the meaning
of the Investment Company Act unless such trust shall be registered under such
Act or exempt from registration thereunder.
(10)..The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
(11)..The Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the Holders of the Securities over the other creditors of the
Company, or with the intent of defeating, hindering, delaying or defaulting
creditors of the Company or others.
SECTION 1405. Deposited Money And U.S. Government Obligations To Be
Held In Trust; Miscellaneous Provisions
Subject to the provisions of the last paragraph of Section 603, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee or other qualifying trustee (solely for purposes of this Section,
the Trustee and any such other trustee are referred to collectively as the
"Trustee") pursuant to Section 1404 in respect of any Securities shall be held
in trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
such Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Securities, of all sums due and to
become due thereon in respect of principal and any premium and interest, but
money so held in trust need not be segregated from other funds except to the
extent required by law. Money and U.S. Government Obligations (including the
proceeds thereof) so held in trust shall not be subject to the provisions of
Article Fifteen, provided that the applicable conditions of Section 1404 have
been satisfied.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1404 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or U.S. Government Obligations held by it as provided in Section 1404 with
respect to any Securities which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect the Defeasance or Covenant Defeasance, as
the case may be, with respect to such Securities.
ARTICLE FIFTEEN
Subordination Of Securities
SECTION 1501. Securities Subordinate to Senior Indebtedness of the
Company
The Company, for itself, its successors and assigns, covenants and agrees,
and each Holder of the Securities of each series, by its acceptance thereof,
likewise covenants and agrees, that the payment of the principal of and premium,
if any, and interest on each and all of the Securities is hereby expressly
subordinated and subject to the extent and in the manner set forth in this
Article, in right of payment to the prior payment in full of all Senior
Indebtedness of the Company.
Each Holder of the Securities of each series, by its acceptance thereof,
authorizes and directs the Trustee on its behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article, and appoints the Trustee its attorney-in-fact for any and all such
purposes.
SECTION 1502. Payment Over of Proceeds of Securities
In the event (a) of any insolvency or bankruptcy proceedings or any
receivership, liquidation, reorganization or other similar proceedings in
respect of the Company or a substantial part of its property, or of any
proceedings for liquidation, dissolution or other winding up of the Company,
whether or not involving insolvency or bankruptcy, or (b) subject to the
provisions of Section 1503, that (i) a default shall have occurred with respect
to the payment of principal of or interest on or other monetary amounts due and
payable on any Senior Indebtedness of the Company, and such default shall have
continued beyond the period of grace, if any, in respect thereof and shall not
have been cured or waived or shall not have ceased to exist, or (ii) that the
principal of and accrued interest on any Senior Indebtedness of the Company
shall have been declared due and payable pursuant to the instrument under which
the same is outstanding and such declaration shall not have been rescinded and
annulled, then:
(1) the holders of all Senior Indebtedness of the Company
shall first be entitled to receive payment of the full amount due thereon,
or provision shall be made for such payment in money or money's worth,
before the Holders of any of the Securities are entitled to receive a
payment on account of the principal of or interest on the indebtedness
evidenced by the Securities, including, without limitation, any payments
made pursuant to Articles Four and Five;
(2) any payment by, or distribution of assets of, the Company
of any kind or character, whether in cash, property or securities, to
which any Holder or the Trustee would be entitled except for the
provisions of this Article, shall be paid or delivered by the Person
making such payment or distribution, whether a trustee in bankruptcy, a
receiver or liquidating trustee or otherwise, directly to the holders of
such Senior Indebtedness of the Company or their representative or
representatives or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Senior Indebtedness of the
Company may have been issued, ratably according to the aggregate amounts
remaining unpaid on account of such Senior Indebtedness of the Company
held or represented by each, to the extent necessary to make payment in
full of all Senior Indebtedness of the Company remaining unpaid after
giving effect to any concurrent payment or distribution (or provision
therefor) to the holders of such Senior Indebtedness of the Company,
before any payment or distribution is made to the Holders of the
indebtedness evidenced by the Securities or to the Trustee under this
Indenture; and
(3) in the event that, notwithstanding the foregoing, any
payment by, or distribution of assets of, the Company of any kind or
character, whether in cash, property or securities, in respect of
principal of or interest on the Securities or in connection with any
repurchase by the Company of the Securities, shall be received by the
Trustee or any Holder before all Senior Indebtedness of the Company is
paid in full, or provision is made for such payment in money or money's
worth, such payment or distribution in respect of principal of or interest
on the Securities or in connection with any repurchase by the Company of
the Securities shall be paid over to the holders of such Senior
Indebtedness of the Company or their representative or representatives or
to the trustee or trustees under any indenture under which any instruments
evidencing any such Senior Indebtedness of the Company may have been
issued, ratably as aforesaid, for application to the payment of all Senior
Indebtedness of the Company remaining unpaid until all such Senior
Indebtedness of the Company shall have been paid in full, after giving
effect to any concurrent payment or distribution (or provision therefor)
to the holders of such Senior Indebtedness of the Company.
Notwithstanding the foregoing, at any time after the 123rd day following
the date of deposit of cash or Eligible Obligations pursuant to Section 701 or
702 (provided all conditions set out in such Section shall have been satisfied),
the funds so deposited and any interest thereon will not be subject to any
rights of holders of Senior Indebtedness of the Company including, without
limitation, those arising under this Article Fifteen; provided that no event
described in clauses (e) and (f) of Section 801 with respect to the Company has
occurred during such 123-day period.
For purposes of this Article only, 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 or reorganization or readjustment which are subordinate
in right of payment to all Senior Indebtedness of the Company which may at the
time be outstanding to the same extent as, or to a greater extent than, the
Securities are so subordinated as provided in this Article. 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 Eleven hereof
shall not be deemed a dissolution, winding-up, liquidation or reorganization for
the purposes of this Section 1502 if such other corporation shall, as a part of
such consolidation, merger, conveyance or transfer, comply with the conditions
stated in Article Eleven hereof. Nothing in Section 1501 or in this Section 1502
shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 907.
SECTION 1503. Disputes with Holders of Certain Senior Indebtedness
of the Company
Any failure by the Company to make any payment on or perform any other
obligation in respect of Senior Indebtedness of the Company, other than any
indebtedness incurred by the Company or assumed or guaranteed, directly or
indirectly, by the Company for money borrowed (or any deferral, renewal,
extension or refunding thereof) or any other obligation as to which the
provisions of this Section shall have been waived by the Company in the
instrument or instruments by which the Company incurred, assumed, guaranteed or
otherwise created such indebtedness or obligation, shall not be deemed a default
under clause (b) of Section 1502 if (i) the Company shall be disputing its
obligation to make such payment or perform such obligation and (ii) either (A)
no final judgment relating to such dispute shall have been issued against the
Company which is in full force and effect and is not subject to further review,
including a judgment that has become final by reason of the expiration of the
time within which a party may seek further appeal or review, or (B) in the event
that a judgment that is subject to further review or appeal has been issued, the
Company shall in good faith be prosecuting an appeal or other proceeding for
review and a stay or execution shall have been obtained pending such appeal or
review.
SECTION 1504. Subrogation
Senior Indebtedness of the Company shall not be deemed to have been paid
in full unless the holders thereof shall have received cash (or securities or
other property satisfactory to such holders) in full payment of such Senior
Indebtedness of the Company then outstanding. Upon the payment in full of all
Senior Indebtedness of the Company, the rights of the Holders of the Securities
shall be subrogated to the rights of the holders of Senior Indebtedness of the
Company to receive any further payments or distributions of cash, property or
securities of the Company applicable to the holders of the Senior Indebtedness
of the Company until all amounts owing on the Securities shall be paid in full;
and such payments or distributions of cash, property or securities received by
the Holders of the Securities, by reason of such subrogation, which otherwise
would be paid or distributed to the holders of such Senior Indebtedness of the
Company shall, as between the Company, its creditors other than the holders of
Senior Indebtedness of the Company, and the Holders, be deemed to be a payment
by the Company to or on account of Senior Indebtedness of the Company, it being
understood that the provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the Holders, on the one hand, and
the holders of the Senior Indebtedness of the Company, on the other hand.
SECTION 1505. Obligation of the Company Unconditional
Nothing contained in this Article or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as among the Company, its creditors
other than the holders of Senior Indebtedness of the Company and the Holders,
the obligation of the Company, which is absolute and unconditional, to pay to
the Holders the principal of and interest on the Securities as and when the same
shall become due and payable in accordance with their terms, or is intended to
or shall affect the relative rights of the Holders 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 any Holder from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article of the holders of Senior Indebtedness
of the Company 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 or securities of the Company
referred to in this Article, the Trustee and the Holders shall be entitled to
rely upon any order or decree of a court of competent jurisdiction in which such
dissolution, winding up, liquidation or reorganization proceedings are pending
for the purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Indebtedness of the Company 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.
The Trustee 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 representative of such holder or a trustee
under any indenture under which any instruments evidencing any such Senior
Indebtedness of the Company may have been issued) to establish that such notice
has been given by a holder of such Senior Indebtedness of the Company or such
representative or trustee on behalf of such holder. In the event that the
Trustee determines in good faith that further evidence is required with respect
to the right of any Person as a holder of Senior Indebtedness of the Company to
participate in any payment or distribution pursuant to this Article, the Trustee
may request such Person to furnish evidence to the reasonable satisfaction of
the Trustee as to the amount of Senior Indebtedness of the Company 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 right of such
Person under this Article, 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 or distribution.
SECTION 1506. Priority of Senior Indebtedness of the Company Upon
Maturity
Upon the maturity of the principal of any Senior Indebtedness of the
Company by lapse of time, acceleration or otherwise, all matured principal of
Senior Indebtedness of the Company and interest and premium, if any, thereon
shall first be paid in full before any payment of principal or premium, if any,
or interest is made upon the Securities or before any Securities can be acquired
by the Company or any sinking fund payment is made with respect to the
Securities (except that required sinking fund payments may be reduced by
Securities acquired before such maturity of such Senior Indebtedness of the
Company).
SECTION 1507. Trustee as Holder of Senior Indebtedness of the
Company
The Trustee shall be entitled to all rights set forth in this Article with
respect to any Senior Indebtedness of the Company at any time held by it, to the
same extent as any other holder of Senior Indebtedness of the Company. Nothing
in this Article shall deprive the Trustee of any of its rights as such holder.
SECTION 1508. Notice to Trustee to Effectuate Subordination
Notwithstanding the provisions of this Article or any other provision of
the Indenture, the Trustee shall not be charged with knowledge of the existence
of any facts which would prohibit the making of any payment of moneys to or by
the Trustee unless and until a Responsible Officer of the Trustee shall have
received written notice thereof from the Company, from a Holder or from a holder
of any Senior Indebtedness of the Company or from any representative or
representatives of such holder or any trustee or trustees under any indenture
under which any instruments evidencing any such Senior Indebtedness of the
Company may have been issued and, prior to the receipt of any such written
notice, the Trustee shall be entitled, subject to Section 901, in all respects
to assume that no such facts exist; provided, however, that, if prior to the
fifth Business Day preceding the date upon which by the terms hereof any such
moneys may become payable for any purpose, or in the event of the execution of
an instrument pursuant to Section 701 or 702 acknowledging that Securities or
portions thereof are deemed to have been paid for all purposes of this
Indenture, acknowledging that the entire indebtedness of the Company in respect
thereof has been satisfied and discharged or acknowledging satisfaction and
discharge of this Indenture, then if prior to the second Business Day preceding
the date of such execution, the Trustee shall not have received with respect to
such moneys the notice provided for in this Section, then, anything herein
contained to the contrary notwithstanding, the Trustee may, in its sole
discretion, receive such moneys and/or apply the same to the purpose for which
they were received, and shall not be affected by any notice to the contrary,
which may be received by it on or after such date; provided, however, that no
such application shall affect the obligations under this Article of the persons
receiving such moneys from the Trustee.
SECTION 1509. Modification, Extension, etc. of Senior Indebtedness
of the Company
The holders of Senior Indebtedness of the Company may, without affecting
in any manner the subordination of the payment of the principal of and premium,
if any, and interest on the Securities, at any time or from time to time and in
their absolute discretion, agree with the Company to change the manner, place or
terms of payment, change or extend the time of payment of, or renew or alter,
any Senior Indebtedness of the Company, or amend or supplement any instrument
pursuant to which any Senior Indebtedness of the Company is issued, or exercise
or refrain from exercising any other of their rights under the Senior
Indebtedness of the Company including, without limitation, the waiver of default
thereunder, all without notice to or assent from the Holders or the Trustee.
SECTION 1510. Trustee Has No Fiduciary Duty to Holders of Senior
Indebtedness of the Company
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
objectives as are specifically set forth in this Indenture, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness of
the Company shall be read into this Indenture against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness of the Company, and shall not be liable to any such holders if it
shall mistakenly pay over or deliver to the Holders or the Company or any other
Person, money or assets to which any holders of Senior Indebtedness of the
Company shall be entitled by virtue of this Article or otherwise.
SECTION 1511. Paying Agents Other Than the Trustee
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context shall otherwise
require) be construed as extending to and including such Paying Agent within its
meaning as fully for all intents and purposes as if such Paying Agent were named
in this Article in addition to or in place of the Trustee; provided, however,
that Sections 1507, 1508 and 1510 shall not apply to the Company if it acts as
Paying Agent.
SECTION 1512. Rights of Holders of Senior Indebtedness of the
Company Not Impaired
No right of any present or future holder of Senior Indebtedness of the
Company to enforce the subordination herein shall at any time or in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any noncompliance by the Company with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof any such holder may have
or be otherwise charged with.
SECTION 1513. Effect of Subordination Provisions; Termination
Notwithstanding anything contained herein to the contrary, other than as
provided in the immediately succeeding sentence, all the provisions of this
Indenture shall be subject to the provisions of this Article, so far as the same
may be applicable thereto.
Notwithstanding anything contained herein to the contrary, the provisions
of this Article Fifteen shall be of no further effect, and the Securities shall
no longer be subordinated in right of payment to the prior payment of Senior
Indebtedness of the Company, if the Company shall have delivered to the Trustee
a notice to such effect. Any such notice delivered by the Company shall not be
deemed to be a supplemental indenture for purposes of Article Twelve.
ARTICLE SIXTEEN
Immunity Of Incorporators, Stockholders, Officers And Directors
SECTION 1601. Liability Solely Corporate
No recourse shall be had for the payment of the principal of or premium,
if any, or interest on any Securities or for any claim based thereon or
otherwise in respect thereof, or of the indebtedness represented thereby, or
upon any obligation, covenant or agreement under this Indenture, against any
incorporator, stockholder, officer or director, as such, past, present or future
of the Company or of any predecessor or successor of either of them (either
directly or through the Company, as the case may be, or a predecessor or
successor of either of them), whether by virtue of any constitutional provision,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly agreed and understood that this Indenture and all
the Securities and Guarantees are solely corporate obligations, and that no
personal liability whatsoever shall attach to, or be incurred by, any
incorporator, stockholder, officer or director, past, present or future, of the
Company or of any predecessor or successor corporation, either directly or
indirectly through the Company or any predecessor or successor of either of
them, because of the indebtedness hereby authorized or under or by reason of any
of the obligations, covenants or agreements contained in this Indenture or in
any of the Securities or to be implied herefrom or therefrom, and that any such
personal liability is hereby expressly waived and released as a condition of,
and as part of the consideration for, the execution of this Indenture and the
issuance of the Securities.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
SOUTHWESTERN ELECTRIC POWER COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
[SEAL]
ATTEST:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
THE BANK OF NEW YORK
as Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Treasurer
[SEAL]
ATTEST:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇