EXHIBIT 4.1
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VECTREN UTILITY HOLDINGS, INC., AS ISSUER
INDIANA GAS COMPANY, INC., AS GUARANTOR
SOUTHERN INDIANA GAS AND ELECTRIC COMPANY, AS GUARANTOR
VECTREN ENERGY DELIVERY OF OHIO, INC., AS GUARANTOR
AND
U.S. BANK TRUST NATIONAL ASSOCIATION, AS TRUSTEE
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GUARANTEED DEBT SECURITIES
INDENTURE
DATED AS OF , 2001
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CROSS-REFERENCE TABLE
INDENTURE
TIA SECTION SECTION
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Section 310 (a)(1) ............................................7.10
(a)(2)..................................................7.10
(a)(3)..................................................N.A.
(a)(4)..................................................N.A.
(a)(5)..................................................7.08
(b) ...................................................7.08; 7.10
(c) ...................................................N.A.
Section 311 (a) ..............................................7.11
(b) ...................................................7.11
(c) ...................................................N.A.
Section 312 (a) ..............................................2.06
(b) ...................................................11.02
(c) ...................................................11.02; 11:03
Section 313 (a) ..............................................7.06
(b)(1)..................................................N.A.
(b)(2)..................................................7.06
(c) ...................................................7.06; 11.02
(d) ...................................................7.06
Section 314 (a) ..............................................4.06; 11.02
(b) ...................................................N.A.
(c)(1)..................................................11.04
(c)(2)..................................................11.04
(c)(3)..................................................8.04; 8.05
(d) ...................................................N.A.
(e) ...................................................11.05
(f) ...................................................N.A.
Section 315 (a) ..............................................7.01(a); 7.01(b)
(b) ...................................................7.05; 11.02
(c) ...................................................7.01(a)
(d) ...................................................7.01(c)
(e) ...................................................6.11
Section 316 (a)(last sentence).................................... 2.10
(a)(1)(A)...............................................6.05
(a)(1)(B)...............................................6.04
(a)(2)..................................................N.A.
(b) ...................................................6.07
(c) ...................................................9.04
Section 317 (a)(1).............................................6.08
(a)(2)..................................................6.09
(b) ...................................................2.05
Section 318 (a) ..............................................11.01
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N.A. means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture.
TABLE OF CONTENTS
PAGE
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RECITALS OF THE COMPANY.......................................................1
ARTICLE 1 Definitions and Incorporation by Reference....................1
Section 1.01. Definitions...................................................1
Section 1.02. Incorporation by Reference on Trust Indenture Act.............7
Section 1.03. Rules of Construction.........................................8
ARTICLE 2 The Securities................................................9
Section 2.01. Form of Securities............................................9
Section 2.02. Title and Terms...............................................9
Section 2.03. Execution and Authentication.................................12
Section 2.04. Registrar and Paying Agent...................................14
Section 2.05. Paying Agent to Hold Money In Trust..........................14
Section 2.06. Securityholder Lists.........................................15
Section 2.07. Transfer and Exchange........................................15
Section 2.08. Replacement Securities.......................................17
Section 2.09. Outstanding Securities.......................................17
Section 2.10. Treasury Securities..........................................18
Section 2.11. Temporary Securities.........................................18
Section 2.12. Cancellation.................................................18
Section 2.13. Defaulted Interest...........................................18
Section 2.14. Persons Deemed Owners........................................19
ARTICLE 3A Redemption..................................................19
Section 3A.01. Right of Redemption.........................................19
Section 3A.02. Applicability of Article....................................19
Section 3A.03. Election to Redeem; Notice to Trustee.......................19
Section 3A.04. Selection by Trustee of Securities to be Redeemed...........20
Section 3A.05. Notice of Redemption........................................20
Section 3A.06. Deposit of Redemption Price.................................21
Section 3A.07. Securities Payable on Redemption Date.......................21
Section 3A.08. Securities Redeemed in Part.................................21
ARTICLE 3B Sinking Fund................................................22
Section 3B.01. Sinking Fund Payments.......................................22
Section 3B.02. Satisfaction of Sinking Fund Payments with Securities.......22
Section 3B.03. Redemption of Securities for Sinking Fund...................22
ARTICLE 4 Covenants....................................................23
Section 4.01. Payment of Securities........................................23
Section 4.02. Maintenance of Office or Agency..............................23
Section 4.03. Corporate Existence..........................................24
Section 4.04. Reserved.....................................................24
Section 4.05. Compliance Certificate.......................................24
Section 4.06. SEC Reports..................................................24
Section 4.07. Waiver of Stay, Extension or Usury Laws......................25
Section 4.08. Restrictions on Liens........................................25
Section 4.09. Restrictions on Sales and Leasebacks.........................26
ARTICLE 5 Successor Corporation........................................27
Section 5.01. When Company And The Guarantors May Merge, etc...............27
Section 5.02. Successor Corporation Substituted............................28
ARTICLE 6 Default and Remedies.........................................28
Section 6.01. Events of Default............................................28
Section 6.02. Acceleration.................................................29
Section 6.03. Other Remedies...............................................30
Section 6.04. Waiver of Past Defaults......................................30
Section 6.05. Control by Majority..........................................31
Section 6.06. Limitation on Suits..........................................31
Section 6.07. Rights of Holders to Receive Payment.........................31
Section 6.08. Collection Suit by Trustee...................................32
Section 6.09. Trustee May File Proofs of Claim.............................32
Section 6.10. Priorities...................................................32
Section 6.11. Undertaking for Costs........................................33
ARTICLE 7 Trustee......................................................33
Section 7.01. Duties of Trustee............................................33
Section 7.02. Rights of Trustee............................................34
Section 7.03. Individual Rights of Trustee.................................35
Section 7.04. Trustee's Disclaimer.........................................35
Section 7.05. Notice of Defaults...........................................35
Section 7.06. Reports by Trustee to Holders................................36
Section 7.07. Compensation and Indemnity...................................36
Section 7.08. Replacement of Trustee.......................................36
Section 7.09. Successor Trustee by Merger, etc.............................37
Section 7.10. Eligibility; Disqualification................................38
Section 7.11. Preferential Collection of Claims Against Company............38
ARTICLE 8 Defeasance, Covenant Defeasance, Satisfaction and Discharge..38
Section 8.01. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance.....................38
Section 8.02. Defeasance and Discharge.....................................39
Section 8.03. Covenant Defeasance..........................................39
Section 8.04. Conditions to Defeasance or Covenant Defeasance..............40
Section 8.05. Deposited Money and U.S. Government Obligations to be
Held in Trust; Other Miscellaneous Provisions.........41
Section 8.06. Satisfaction and Discharge of Indenture......................42
Section 8.07. Application of Trust Money...................................43
Section 8.08. Repayment to Company.........................................44
Section 8.09. Reinstatement................................................44
ARTICLE 9 Amendments, Supplements and Waivers..........................43
Section 9.01. Without Consent of Holders...................................43
Section 9.02. With Consent of Holders......................................44
Section 9.03. Compliance with Trust Indenture Act..........................45
Section 9.04. Revocation and Effect of Consents............................45
Section 9.05. Notation On or Exchange of Securities........................46
Section 9.06. Trustee to Sign Amendments, etc..............................46
ARTICLE 10 Guarantee of Securities.....................................46
Section 10.01. Unconditional Guarantee.....................................46
Section 10.02. Execution of Guarantee......................................49
Section 10.03. Execution of Guarantee......................................44
ARTICLE 11 Miscellaneous...............................................50
Section 11.01. Trust Indenture Act Controls................................50
Section 11.02. Notices.....................................................50
Section 11.03. Communications by Holders With Other Holders................51
Section 11.04. Certificate and Opinion as to Conditions Precedent..........51
Section 11.05. Statements Required in Certificate or Opinion...............51
Section 11.06. Rules by Trustee, Paying Agent, Registrar...................52
Section 11.07. Legal Holidays..............................................52
Section 11.08. Governing Law...............................................52
Section 11.09. No Adverse Interpretation of Other Agreements...............52
Section 11.10. No Recourse Against Others..................................52
Section 11.11. Successors..................................................52
Section 11.12. Duplicate Originals.........................................53
Section 11.13. Separability................................................53
Section 11.14. Action of Holders when Securities are Denominated in
Different Currencies..................................53
Section 11.15. Monies of Different Currencies to be Segregated.............53
Section 11.16. Payment to be in Proper Currency............................53
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NOTE: This Table of Contents shall not, for any purpose, be deemed to be a part
of this Indenture.
INDENTURE, dated as of ______________, 2001 among Vectren Utility
Holdings, Inc., an Indiana corporation (the "Company") and Indiana Gas Company,
Inc., an Indiana corporation and an Ohio corporation ("Indiana Gas"), Southern
Indiana Gas and Electric Company, an Indiana corporation ("SIGECO") and Vectren
Energy Delivery of Ohio, Inc., an Ohio corporation ("VEDO"), (Indiana Gas,
SIGECO and VEDO are referred to herein collectively as the "Guarantors") and
U.S. Bank Trust National Association ("Trustee").
RECITALS OF THE COMPANY
The Company and the Guarantors have duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of the
Company's unsecured notes, debentures or other evidences of indebtedness of the
Company (collectively, the "Securities"), to be issued from time to time in one
or more series (a "Series") and the Guarantees (as hereinafter defined) as
provided in this Indenture and as shall be provided, in respect of any Series
and the Guarantees, in or pursuant to the Authorizing Resolutions hereinafter
referred to and/or in the indenture supplemental hereto (if any) relating to
such Series and the Guarantees.
ARTICLE 1
Definitions and Incorporation by Reference
Section 1.01. Definitions.
"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 Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Attributable Debt" means, with respect to any Sale and Leaseback
Transaction as of any particular time, the present value (discounted at the rate
of interest implicit in the terms of the lease) of the obligations of the lessee
under such lease for net rental payments during the remaining term of the lease
(including any period for which such lease has been extended or may, at the
option of the Company, be extended).
"Authorizing Resolution" means a Board Resolution providing for the
issuance of a Series of Securities.
"Bankruptcy Law" shall have the meaning provided in Section 6.01.
"Board of Directors" of any corporation means the board of directors
of such corporation or any duly authorized committee of the board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company or the Guarantors to have
been duly adopted by the Board of Directors of the Company or the Guarantors, as
applicable, and to be in full force and effect on the date of such
certification, and delivered to the Trustee (except as provided in Section
2.03).
"Business Day" means a day that is not a Legal Holiday.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated) of corporate
stock of such Person other than Mandatory Redemption Preferred Stock.
"Capitalized Lease Obligation" means Indebtedness represented by
obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with generally accepted accounting principles
and the amount of such Indebtedness shall be the capitalized amount of such
obligations determined in accordance with such principles.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means the
successor.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by two Officers of the
Company or by an Officer and the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary, and delivered to the Trustee in respect of
the Series to which the Company Request or Company Order shall relate.
"Consolidated Net Tangible Assets" means the total assets appearing on
a consolidated balance sheet of the Company and its Subsidiaries less, without
duplication: (i) current liabilities; (ii) reserves for estimated rate refunds
pending the outcome of a rate proceeding to the extent such refunds have not
been finally determined; (iii) all intangible assets; and (iv) deferred income
tax assets.
"Consolidated Subsidiary" means a Subsidiary which for financial
reporting purposes is accounted for by the Company as a consolidated subsidiary.
"Corporate Trust Office" or other similar term means the principal
office of the Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date hereof is located at
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, Fax: ▇▇▇-▇▇▇-▇▇▇▇; the Trustee will notify the Company of any change
thereof.
"Covenant Defeasance" shall have the meaning provided in Section 8.03.
"Custodian" shall have the meaning provided in Section 6.01.
"Default" means any event which is, or after notice or passage of time
or both would become, an Event of Default.
"Defeasance" shall have the meaning provided in Section 8.02.
"Depository" means, with respect to the Securities of any Series
issuable or issued in the form of one or more Global Securities, the Person
designated as Depository by the Company pursuant to Section 2.02, initially The
Depository Trust Company, until a successor Depository shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Depository" shall mean or include each Person who is then a Depository
hereunder, and, if at any time there is more than one such Person, "Depository"
as used with respect to the Securities of any such Series shall mean the
Depository with respect to the Global Securities of such Series.
"Event of Default" shall have the meaning provided in Section 6.01.
"Extendible Securities" means Securities of any Series issued
hereunder the final maturity of which is extendible for a stated period of time,
as shall be provided in, or pursuant to, the Authorizing Resolutions and/or
supplemental indenture (if any) relating to such Series.
"Funded Debt" means all Indebtedness maturing one year or more from
the date of the creation thereof, all Indebtedness directly or indirectly
renewable or extendible, at the option of the debtor, by its terms or by the
terms of any instrument or agreement relating thereto, to a date one year or
more from the date of the creation thereof, and all Indebtedness under a
revolving credit or similar agreement obligating the lender or lenders to extend
credit over a period of one year or more, even though such Indebtedness may also
conform to the definition of Short-Term Borrowing.
"Global Security" means a Security evidencing all or a part of a
Series of Securities issued to and registered in the name of the Depository for
such Series, or its nominee, in accordance with Section 2.02, and bearing the
legend prescribed in Section 2.03.
"Guarantees" means the Guarantors' unconditional guarantees of the
payment of the amounts owed with respect to the Securities as more fully
described in Article 10 hereof.
"Guarantor" or "Guarantors" means the Person or Persons named as the
"Guarantors" in the first paragraph of this instrument together with any
additional Person who shall execute a supplemental indenture pursuant to which
it shall guarantee under this Indenture any Securities, in each case until a
successor corporation shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter Guarantors shall include such
successor corporation.
"Holder" or "Securityholder" means, with respect to any Security, the
Person in whose name such Security is registered on the Security Register.
"Indebtedness" means (i) any liability of any Person (a) for borrowed
money, (b) evidenced by a note, debenture or similar instrument (including a
purchase money obligation) given in connection with the acquisition of any
property or assets (other than inventory or similar property acquired in the
ordinary course of business), including securities, (c) for the payment of money
relating to a Capitalized Lease Obligation, or (d) in respect of acceptances or
letters of credit or similar instruments issued or created for the account of
such Person; (ii) all preferred stock of any Person that is redeemable other
than at the option of such Person; (iii) any guarantee by any Person of any
liability or preferred stock of others described in the preceding clauses (i) or
(ii); and (iv) any amendment, renewal, extension or refunding of any liability
or preferred stock of the types referred to in clauses (i), (ii) or (iii) above.
"Indenture" means this Indenture as amended or supplemented from time
to time and shall include the forms and terms of particular Series of Securities
established as contemplated hereunder.
"Interest Payment Date" means, for any Series of Securities issued and
outstanding hereunder, the date or dates in each year on which any interest on
such Series is due and payable.
"Legal Holiday" shall have the meaning provided in Section 11.07.
"Lien" means any mortgage, lien, pledge, charge, or other security
interest or encumbrance of any kind.
"Mandatory Redemption Preferred Stock" means, with respect to any
Person, any and all shares of preferred stock of such Person now outstanding or
hereafter issued, subject to mandatory redemption provisions or provisions
relating to repayment at the option of the holders thereof.
"Maturity" when used with respect to any Security means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Maturity Date" means the date specified in each Security on which the
principal thereof is due and payable in full.
"Officer" means the Principal Executive Officer, Principal Financial
Officer or Principal Accounting Officer of the Company or a Guarantor, as
applicable.
"Officers' Certificate" means a certificate signed by two Officers or
by an Officer and the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company.
"Original Issue Date" means the date on which a Security is issued to
the original purchaser thereof, as specified in such Security.
"Original Issue Discount Securities" means Securities which provide
for an amount less than 100% of the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 6.02.
"Paying Agent" shall have the meaning provided in Section 2.04, except
that for the purposes of Article 8, the Paying Agent shall not be the Company or
any Subsidiary.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or other agency or political subdivision thereof.
"Principal" of a Security means the principal of such Security plus,
when appropriate, the premium, if any, on such Security.
"Principal Domestic Property" shall mean any property, plant,
equipment or facility of the Company or a Guarantor as applicable which is
located in the United States or any territory or political subdivision thereof,
except any property which the Board of Directors or management of the Company or
a Guarantor as applicable determines is not material to the business or
operations of the Company or a Guarantor and its Subsidiaries, taken as a whole.
"Redeemable Securities" means Securities of any Series which may be
redeemed, at the option of the Company, prior to their Stated Maturity, on the
terms specified in or pursuant to the Authorizing Resolutions and/or
supplemental indenture relating to such Series and in accordance with Article 3A
herein.
"Redemption Date" when used with respect to any Security of any Series
to be redeemed means the date fixed for such redemption by or pursuant to the
provisions of such Security, this Indenture and the Authorizing Resolutions
and/or supplemental indenture (if any) relating to such Security.
"Redemption Price" when used with respect to any Security of any
Series to be redeemed means the price at which it is to be redeemed pursuant to
the provisions of such Security, this Indenture and the Authorizing Resolutions
and/or supplemental indenture relating to such Security.
"Registrar" shall have the meaning provided in Section 2.04.
"Regular Record Date" means, for the interest payable on any Interest
Payment Date in respect of any Series of Securities, except as provided in, or
pursuant to, the Authorizing Resolutions and/or supplemental indenture (if any)
relating thereto, the day (whether or not a Business Day) that is fifteen days
preceding the applicable Interest Payment Date.
"Required Currency" shall have the meaning provided in Section 11.16.
"Sale and Leaseback Transaction" shall have the meaning provided in
Section 4.09.
"SEC" means the Securities and Exchange Commission.
"Securities" means the debt securities, as amended or supplemented
from time to time pursuant to the terms of this Indenture, of the Company of any
Series that are issued under this Indenture.
"Security Register" shall have the meaning provided in Section 2.04.
"Series" means, with respect to Securities issued hereunder, the
Securities issued pursuant to any particular Authorizing Resolutions and/or
supplemental indenture (if any), subject to the right of the Board of Directors
to specify in such Authorizing Resolutions and/or supplemental indenture (if
any) that such Securities shall constitute more than one Series.
"Short-Term Borrowing" means all Indebtedness in respect of borrowed
money maturing on demand or within one year from the date of the creation
thereof and not directly or indirectly renewable or extendible, at the option of
the debtor, by its terms or by the terms of any instrument or agreement relating
thereto, to a date one year or more from the date of the creation thereof;
provided, that Indebtedness in respect of borrowed money arising under a
revolving credit or similar agreement which obligates the lender or lenders to
extend credit over a period of one year or more shall constitute Funded Debt and
not Short-Term Borrowing even though the same matures on demand or within one
year from the date as of which such Short-Term Borrowing is to be determined.
"Significant Subsidiary" means a Subsidiary, including its
Subsidiaries, which meets any of the following conditions:
(a) the Company's and its other Subsidiaries' investments in and
advances to the Subsidiary exceed 10 percent of the total assets of the Company
and its Subsidiaries consolidated as of the end of any two of the three most
recently completed fiscal years; or
(b) the Company's and its other Subsidiaries' proportionate share of
the total assets of the Subsidiary exceeds 10 percent of the total assets of the
Company and its Subsidiaries consolidated as of the end of any two of the three
most recently completed fiscal years; or
(c) the Company's and its other Subsidiaries' equity in the income
from continuing operations before income taxes, extraordinary items and
cumulative effect of a change in accounting principles of the Subsidiary exceeds
10 percent of such income of the Company and its Subsidiaries consolidated as of
the end of any two of the three most recently completed fiscal years.
"Sinking Fund" means, with respect to any Sinking Fund Securities, a
sinking fund provided for in Article 3B.
"Sinking Fund Securities" means Securities of any Series which are
required to be redeemed from time to time prior to the Stated Maturity thereof
in whole or in part under a Sinking Fund, on the terms specified in the
Authorizing Resolutions and/or supplemental indenture (if any) relating to such
Series and in accordance with Article 3B herein.
"Special Record Date" shall have the meaning provided in Section 2.13.
"Stated Maturity" when used with respect to any Security or any
installment of interest thereon means the date specified in such Security as the
fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subsequent Guarantor" shall have the meaning provided in Section
10.03.
"Subsidiary" means (i) a corporation a majority of whose Capital Stock
with voting power, under ordinary circumstances, to elect directors is at the
time, directly or indirectly, owned by the Company, by the Company and a
Subsidiary (or Subsidiaries) of the Company or by a Subsidiary (or Subsidiaries)
of the Company or (ii) any other Person (other than a corporation) in which the
Company, a Subsidiary (or Subsidiaries) of the Company or the Company and a
Subsidiary (or Subsidiaries) of the Company, directly or indirectly, at the date
of determination thereof has at least majority ownership interest; provided,
that no corporation shall be deemed a Subsidiary until the Company, a Subsidiary
(or Subsidiaries) of the Company or the Company and a Subsidiary (or
Subsidiaries) of the Company acquires more than 50% of the outstanding voting
stock thereof and has elected a majority of its Board of Directors.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code (S)(S)
77aaa77bbbb) as in effect on the date of this Indenture except as provided in
Section 9.03.
"Transfer" shall have the meaning provided in Section 10.02.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means and includes the Person or 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 Officer" means any officer or assistant officer of the Trustee
assigned by the Trustee to administer its corporate trust matters.
"U.S. Government Obligations" shall have the meaning provided in
Section 8.04.
"Yield to Maturity" means, with respect to any Series of Securities,
the yield to maturity thereof, calculated at the time of issuance thereof, or,
if applicable, at the most recent redetermination of interest thereon, and
calculated in accordance with accepted financial practice.
Section 1.02. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC;
"indenture securities" means the Securities;
"indenture security holder" means a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company or a Guarantor
or any other obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings assigned to them therein.
Section 1.03. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles in effect in
the United States, and any other reference in this Indenture to "generally
accepted accounting principles" refers to generally accepted accounting
principles in effect in the United States;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the plural
include the singular;
(5) provisions apply to successive events and transactions;
(6) "herein," "hereof," "hereunder" and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or
other subdivision; and
(7) "include," "included," and "including" as used herein shall be
deemed in each case to be followed by the phrase "without limitation."
ARTICLE 2
The Securities
Section 2.01. Form of Securities.
The Securities of each Series shall be in substantially the forms as
shall be specified in, or pursuant to, the Authorizing Resolutions and/or in the
indenture supplemental hereto (if any) relating to such Series, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture or the said Authorizing Resolutions
and/or supplemental indenture (if any).
The definitive Securities of each Series shall be printed,
lithographed or engraved or produced by any combination of these methods on
steel engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange on which the Securities and the Guarantees may
be listed, or, if they shall not be listed on any securities exchange, in any
other manner consistent herewith, all as shall be determined by the officers
executing such Securities and the Guarantees, as evidenced by their execution of
such Securities and the Guarantees. The Securities and the Guarantees may have
notations, legends or endorsements required by law, stock exchange rule or
usage. The Company shall approve the form of the Securities and the Guarantees
and the Guarantors shall approve the form of the Guarantees and, in each case,
any notation, legend or endorsement on them.
The terms and provisions contained in the Securities and the
Guarantees in such forms as specified in the Authorizing Resolutions and/or
supplemental indenture (if any) relating thereto, shall constitute, and are
hereby expressly made, a part of this Indenture.
Section 2.02. Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more Series. The terms of each
Series shall be as provided in an Authorizing Resolutions and/or supplemental
indenture (if any) or shall be determined in the manner specified therein. The
terms to be specified in respect of each Series in the Authorizing Resolutions
and/or supplemental indenture (if any), or by such Person and/or procedures as
shall be provided therein, shall include the following:
(1) the title of the Securities of such Series, which shall
distinguish such Series from all other Series;
(2) 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 of such Series authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Securities
pursuant to Section 2.07, 2.08, 2.11, 3A.08 or 9.05);
(3) the date or dates on which the principal of the Securities of such
Series is payable, and, if the Series shall be Extendible Securities, the terms
on which the Company or any other Person shall have the option to extend the
Maturity of such Securities and the rights, if any, of the Holders to require
early repayment of the Securities;
(4) the rate or rates at which the Securities of such Series shall
bear interest, if any (whether floating or fixed), the provisions, if any, for
determining such interest rate or rates and adjustments thereto, the date or
dates from which such interest shall accrue or the method for determining such
date or dates, the Interest Payment Dates therefor and the Regular Record Dates
for the determination of Holders of the Securities of such Series to whom
interest is payable and the basis upon which interest, if any, shall be
calculated if other than that of a 360-day year of twelve 30-day months;
(5) the place or places where the principal of, premium, if any, and
interest on Securities of such Series shall be payable (if other than as
provided in Section 4.02), where Securities of such Series may be surrendered
for registration of transfer or exchange and where notices or demands to or upon
the Company in respect of Securities of such Series and this Indenture may be
served;
(6) the price or prices at which, the period or periods within which
and the terms and conditions upon which the Securities of such Series may be re
deemed, in whole or in part, at the option of the Company, pursuant to a Sinking
Fund or otherwise;
(7) the obligation, if any, of the Company to redeem, purchase or
repay Securities of such Series, in whole or in part, pursuant to a Sinking Fund
or otherwise or at the option of a Holder thereof, and the price or prices at
which, the period or periods within which and the terms and conditions upon
which such redemption, purchase or repayment shall be made;
(8) any deletions from, modifications of or additions to the Events of
Default provided for herein with respect to the Securities of such Series, and
any deletions from, modifications of or additions to the covenants or
obligations provided for herein of the Company to the Holders of the Securities
of such Series;
(9) if less than 100% of the principal amount of the Securities of
such Series is payable on acceleration under Section 6.02 or in bankruptcy under
Section 6.09 at any time, a schedule of or the manner of computing the amounts
which are so payable from time to time;
(10) the form of the Securities of such Series, including whether the
Securities of such Series shall be issued in whole or in part in the form of one
or more Global Securities and, in such case, the Depository with respect to such
Global Security or Securities and the circumstances under which any Global
Security may be registered for transfer or exchange, or authenticated and
delivered, in the name of a Person other than such Depository or its nominee, if
other than as set forth in Section 2.07;
(11) if other than United States dollars, the currency or currencies
in which payment of the principal of or premium, if any, or interest, if any, on
the Securities of such Series shall be payable;
(12) if the principal of or premium, if any, or interest, if any, on
the Securities of such Series is to be payable, at the election of the Company
or a Holder thereof, in a currency or currencies other than that in which the
Securities are stated to be payable, the period or periods within which, and the
terms and conditions upon which, such election may be made;
(13) if the amount of payments of principal of or premium, if any, or
interest, if any, on the Securities of such Series may be determined with
reference to an index based on a currency or currencies other than that in which
the Securities are stated to be payable, the manner in which such amounts shall
be determined;
(14) whether and under what circumstances the Company will pay any
additional amounts on the Securities of such Series in respect of any tax,
assessment or governmental charge and, if so, whether the Company will have the
option to redeem the Securities of such Series in lieu of making such payment;
(15) any provision relating to the issuing of the Securities of such
Series as Original Issue Discount Securities (including, without limitation, the
issue price thereof, the rate or rates at which such original issue discount, if
any, shall accrue and the date or dates from or to which, or period or periods
during which, such original issue discount shall accrue at such rate or rates);
(16) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of such Series shall be issued;
(17) whether either or both of Defeasance or Covenant Defeasance shall
apply to the Securities of such Series and terms, conditions or limitations
which may be imposed in connection therewith in addition to those contained in
Article 8; and
(18) any other terms of the Securities of such Series; provided, that
such other terms shall not conflict with any express terms of any other Series
of Securities which shall be issued and outstanding.
Any Series of Securities may be reopened and additional Securities of
such Series may be issued without the consent of the Holders of such Series.
All Securities of any one Series shall be substantially identical in
form except as to denomination and except as may be otherwise provided in and
pursuant to the Authorizing Resolutions and/or supplemental indenture (if any)
relating thereto. All Securities and Guarantees of any one Series need not be
issued at the same time and may be issued from time to time, consistent with
this Indenture, if so provided by or pursuant to such Authorizing Resolutions
and/or supplemental indenture (if any) relating thereto.
Any such Authorizing Resolutions with respect to the Securities of any
Series and Guarantees filed with the Trustee on or before the initial issuance
of the Securities of such Series and Guarantees shall be incorporated herein by
reference with respect to Securities of such Series and Guarantees and shall
thereafter be deemed to be a part of this Indenture for all purposes relating to
the Securities of such Series and Guarantees as if such Authorizing Resolutions
were set forth herein in full.
Section 2.03. Execution and Authentication.
The Securities shall be executed on behalf of the Company and the
Guarantees endorsed thereon shall be executed on behalf of the Guarantors,
respectively, by two Officers or an Officer and the Secretary.
If an Officer or a Secretary whose signature is on a Security or
Guarantee no longer holds that office at the time the Trustee authenticates the
Security, the Security and such Guarantee shall be valid nevertheless.
The Security and Guarantees endorsed thereon shall not be valid until
the Trustee manually signs the certificate of authentication on the Security.
The signature shall be conclusive evidence that the Security and Guarantees have
been properly executed and, if applicable, authenticated under this Indenture.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any Series executed by the
Company to the Trustee, and with Guarantees endorsed thereon and executed by the
Guarantors, together with a Company Order for the authentication and delivery of
such Securities. The Company Order may provide that the Securities which are the
subject thereof shall be authenticated and delivered by the Trustee upon the
telephonic, written or other order of Persons designated in the Company Order,
and that such Persons are authorized to specify the terms and conditions of such
Securities, to the extent permitted by the Authorizing Resolutions and/or
supplemental indenture (if any) relating thereto. The Trustee shall execute and
deliver the supplemental indenture (if any) relating to said Securities and the
Trustee shall authenticate and deliver said Securities as specified in such
Company Order; provided that, prior to authentication and delivery of the first
Securities of any Series, the Trustee shall have received:
(1) a copy of the Authorizing Resolutions, with a copy of the form of
Security and the Guarantees approved thereby attached thereto, or a supplemental
indenture in respect of the issuance of the Securities of the Series and the
Guarantees, executed on behalf of the Company and the Guarantors, as applicable;
(2) an Officers' Certificate to the effect that the Securities of such
Series comply or will comply with the requirements of this Indenture and the
said Authorizing Resolutions and/or supplemental indenture (if any);
(3) an Opinion of Counsel: (a) to the effect that (i) the Securities
of such Series and the Guarantees, the Authorizing Resolutions and/or the
supplemental indenture (if any) relating thereto comply or will comply with the
requirements of this Indenture, and (ii) the Securities of such Series and the
Guarantees, when authenticated, if applicable, and delivered by the Trustee in
accordance with the said Company Order, will constitute valid and binding
obligations of the Company and the Guarantors, as applicable, enforceable in
accordance with their terms, subject to (A) bankruptcy and other laws affecting
creditors' rights generally as in effect from time to time, (B) limitations of
generally applicable equitable principles and (C) other exceptions acceptable to
the Trustee and its counsel; and (b) relating to such other matters as may
reasonably be requested by the Trustee or its counsel; and
(4) if the Securities to be issued are Original Issue Discount
Securities, an Officers' Certificate setting forth the Yield to Maturity for the
Securities or other information sufficient to compute amounts due on
acceleration, or specifying the manner in which such amounts are to be
determined, pro vided that such Yield to Maturity and other facts are not
specified in the form of the Securities.
Subject to Section 7.01 hereof, the Trustee shall be fully protected
in relying upon the documents delivered to it as provided above in connection
with the issuance of any Series of Securities.
The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section 2.03 if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or if the Trustee
in good faith by a committee of its Trust Officers shall determine that such
action would expose the Trustee to liability to Holders of previously issued and
outstanding Securities.
Each Security shall be dated the date of its authentication unless
otherwise specified in the Authorizing Resolutions and/or supplemental indenture
relating thereto.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate Securities. An authenticating agent may
authenticate Securities whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with the
Company or an Affiliate of the Company
The Securities of each Series shall be issuable only in registered
form without coupons and only in denominations of $1,000 and any integral
multiple thereof, or in such other currencies or denominations as may be
specified in, or pursuant to, the Authorizing Resolutions and/or supplemental
indenture (if any) relating to the Series.
If Securities of any Series are to be issued in the form of one or
more Global Securities, then the Company shall deliver such Global Security or
Securities executed by the Company to the Trustee, together with a Company Order
for the authentication and delivery of such Global Security or Securities, and
the Trustee shall, in accordance with this Section 2.03 and such Company Order,
authenticate and deliver such Global Security or Securities that (i) shall
represent and shall be denominated in an amount equal to the aggregate principal
amount of all of the Securities of such Series to be issued in the form of such
Global Security or Securities and not yet cancelled, (ii) shall be registered in
the name of the Depository for such Global Security or Securities or the nominee
of such Depository, (iii) shall be delivered by the Trustee to such Depository
or pursuant to such Depository's instructions and (iv) shall bear a legend
substantially to the following effect: "Unless and until this Security is
exchanged in whole or in part for Securities in certificated form, this Security
may not be transferred except as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or its nominee to a successor
Depository or its nominee."
Each Depository designated must, at the time of its designation and at
all times while it serves as Depository, be a clearing agency registered under
the Securities Exchange Act of 1934, as amended, and any other applicable
statute or regulation.
Section 2.04. Registrar and Paying Agent.
The Company shall cause to be kept a register (the "Security
Register") at an office or agency where Securities may be presented for
registration of transfer or for exchange ("Registrar") and an office or agency
where Securities may be presented for payment ("Paying Agent"). The Company may
have one or more co-Registrars and one or more additional paying agents. The
term "Paying Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall give
prompt written notice to the Trustee of the name and address of any such Agent
and the Trustee shall have the right to inspect the Security Register at all
reasonable times and to obtain copies thereof. If the Registrar shall not be the
Trustee in respect of any Series, the Company shall promptly notify the
Registrar as to the amounts and terms of each Security of such Series which
shall be authenticated and delivered hereunder, and as to the names in which
such Securities shall be registered. If the Company fails to maintain a
Registrar or Paying Agent, the Trustee shall act as such and shall be entitled
to appropriate compensation therefor pursuant to Section 7.07.
The Company initially appoints the Trustee as Registrar and Paying
Agent.
Section 2.05. Paying Agent to Hold Money In Trust.
Each Paying Agent shall hold in trust for the benefit of
Securityholders or the Trustee all money held by the Paying Agent for the
payment of principal of, premium, if any, or interest on the Securities (whether
such money has been paid to it by the Company or any other obligor on the
Securities), and shall notify the Trustee of any default by the Company (or any
other obligor on the Securities) in making any such payment. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate the money and hold it as a
separate trust fund. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee and account for any funds disbursed and the
Trustee may at any time during the continuance of any payment default, upon
written request to a Paying Agent, require such Paying Agent to pay all money
held by it to the Trustee and to account for any funds disbursed. Upon doing so
the Paying Agent shall have no further liability for the money.
Section 2.06. Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list furnished to it of the names and addresses of
Securityholders. If the Trustee is not the Registrar, the Company shall furnish
to the Trustee ten days before each Interest Payment Date and at such other
times as the Trustee may request in writing a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of Holders
of Securities of any Series and the Company shall otherwise comply with Section
312(a) of the TIA.
The Trustee shall be entitled to rely upon a certificate of the
Registrar, the Company or such other Paying Agent, as the case may be, as to the
names and addresses of the Holders of Securities of any Series and the principal
amounts and serial numbers of such Securities.
Section 2.07. Transfer and Exchange.
When Securities are presented to the Registrar or a co-Registrar with
a request to register the transfer or to exchange them for an equal principal
amount of Securities of the same Series and Stated Maturity of other authorized
denominations, the Registrar shall register the transfer or make the exchange as
requested if its requirements for such transactions are met. To permit
registrations of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate Securities at the Registrar's request, and the
Guarantors shall each execute the Guarantees endorsed on such Securities. No
service charge shall be made to any Holder for any registration of transfer or
exchange, but the Company or the Trustee may require payment of a sum sufficient
to cover any transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer taxes or similar governmental charge
payable upon exchanges pursuant to Section 2.11, 3A.08 or 9.05 in which case
such transfer taxes or similar governmental charges shall be paid by the
Company).
The Company shall not be required (i) to issue, register the transfer
of or exchange any Security of any Series during a period beginning at the
opening of the day which is 15 Business Days before the day of the mailing of a
notice of redemption of Securities of such Series selected for redemption under
Section 3A.04 or 3B.01 and ending at the close of business on the day of such
mailing, or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except, in the case of any Security
to be redeemed in part, the portion thereof not to be redeemed.
Notwithstanding any other provision of this Section 2.07, unless and
until it is exchanged in whole or in part for Securities, a Global Security
representing all or part of the Securities of a Series may not be transferred
except as a whole by the Depository for such Series to a nominee of such
Depository or by a nominee of such Depository to such Depository or another
nominee of such Depository or by such Depository or any such nominee to a
successor Depository for such Series or a nominee of such successor Depository.
If at any time the Depository for any Securities of a Series
represented by one or more Global Securities notifies the Company that it is
unwilling or unable to continue as Depository for such Series or if at any time
the Depository for such Series shall no longer be eligible under Section 2.03,
the Company shall appoint a successor Depository with respect to such Series. If
a successor Depository for such Series is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such
ineligibility, or an Event of Default occurs and is continuing, the Company's
election that the Securities be represented by one or more Global Securities
pursuant to Section 2.02 shall no longer be effective and the Company shall
deliver to the Trustee Securities of such Series executed by the Company, and
with Guarantees endorsed thereon and executed by the Guarantors, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee shall, in accordance with Section 2.03 and such Company Order,
authenticate and deliver Securities of such Series, in any authorized
denominations, in an aggregate principal amount equal to the principal amount of
the Global Security or Securities representing such Series in exchange for such
Global Security or Securities.
The Company may at any time and in its sole discretion determine that
the Securities of any Series issued in the form of one or more Global Securities
shall no longer be represented by a Global Security or Securities. In such event
the Company shall deliver to the Trustee Securities of such Series executed by
the Company, and with Guarantees endorsed thereon and executed by the
Guarantors, together with a Company Order for the authentication and delivery of
such Securities, and the Trustee shall, in accordance with Section 2.03 and such
Company Order, authenticate and deliver Securities of such Series, in any
authorized denominations, in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such Series,
in exchange for such Global Security or Securities.
If specified by the Company in the Authorizing Resolutions and/or
supplemental indenture (if any) relating to the Securities of a Series
represented by a Global Security, the Depository for such Series may surrender
such Global Security in exchange in whole or in part for Securities of the same
Series on such terms as are acceptable to the Company and the Depository.
Thereupon, the Company shall deliver to the Trustee Securities of such Series
executed by the Company, and with Guarantees endorsed thereon and executed by
the Guarantors, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee shall, in accordance with Section
2.03 and such Company Order, authenticate and deliver, without charge,
(1) to the Person specified by such Depository, a new Security or
Securities of the same Series, in any authorized denominations as requested by
such Person, in an aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Global Security; and
(2) to such Depository a new Global Security in a denomination equal
to the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities authenticated
and delivered pursuant to clause (1) above.
Upon the exchange of a Global Security for the Securities of a Series
represented thereby, in authorized denominations, such Global Security shall be
cancelled by the Trustee or an Agent of the Company or the Trustee. Securities
of a Series issued in exchange for a Global Security pursuant to this Section
2.07 shall be registered in such names and in such authorized denominations as
the Depository for such Global Security, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee or an
Agent of the Company or the Trustee. The Trustee or such Agent shall deliver at
its office such Securities to or as directed by the Persons in whose names such
Securities are so registered.
Section 2.08. Replacement Securities.
If a mutilated Security is surrendered to the Trustee or if the Holder
of a Security claims that the Security has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate a replacement
Security of like tenor, Series and principal amount, bearing a number not
assigned to any Security of the same Series then outstanding, if the Trustee's
requirements are met, and the Guarantors shall execute the Guarantees endorsed
on such Security. If required by the Trustee or the Company, an indemnity bond
must be sufficient in the judgment of the Trustee to protect the Company, the
Trustee or any Agent from any loss which any of them may suffer if a Security is
replaced. The Company may charge such Holder for its expenses in replacing a
Security.
Replacement Securities and Guarantees endorsed thereon are additional
obligations of the Company and the relevant Guarantor, as the case may be.
Section 2.09. Outstanding Securities.
Securities, or Securities of any particular Series, outstanding at any
time are all such Securities that have been authenticated and delivered by the
Trustee except for those cancelled by it, those delivered to it for cancellation
and those described in this Section as not outstanding. Subject to Section 2.10,
a Security does not cease to be outstanding because the Company or one of its
Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.08, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Trustee or Paying Agent (other than the Company or a
Subsidiary) holds on the Maturity Date or Redemption Date money sufficient to
pay Securities payable on such date, then on and after that date such Securities
cease to be outstanding and interest on them ceases to accrue; provided that, if
such Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made.
Section 2.10. Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities of any Series have concurred in any direction, waiver or consent (a)
the principal amount of an Original Issue Discount Security, if any, of such
Series that shall be deemed to be outstanding for such purposes shall be the
amount that would be due and payable as of the date of determination upon a
declaration of acceleration thereof pursuant to Section 6.02 and (b) Securities
of such Series owned by the Company, a Guarantor or an Affiliate of the Company
or a Guarantor shall be disregarded, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Securities of such Series which the Trustee actually knows are
so owned shall be so disregarded. Upon the request of the Trustee, the Company
shall furnish to the Trustee an Officers' Certificate identifying all Securities
of such Series, if any, known by the Company to be owned by it, a Guarantor or
any Affiliate of the Company or of any Guarantor.
Section 2.11. Temporary Securities.
Until definitive Securities of any Series are ready for delivery, the
Company may prepare and execute and, upon compliance with the requirements of
Section 2.03, the Trustee shall authenticate temporary Securities of such
Series, with Guarantees endorsed thereon and executed by the Guarantors.
Temporary Securities of any Series shall be substantially in the form of
definitive Securities of such Series but may have variations that the Company
considers appropriate for temporary Securities. In the case of Securities of any
Series, such temporary Securities may be in global form. Except in the case of
temporary Global Securities (which shall be exchanged as otherwise provided
herein or as otherwise provided in or pursuant to Authorizing Resolutions and/or
a supplemental indenture, (if any), without unreasonable delay), the Company
shall prepare and the Trustee shall authenticate definitive Securities for such
Series in exchange for temporary Securities of such Series, with Guarantees
endorsed thereon and executed by the Guarantors, in an exchange pursuant to
Section 2.07.
Section 2.12. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The
Trustee and no one else shall cancel all Securities surrendered for transfer,
exchange, payment or cancellation or for credit against any Sinking Fund Payment
in respect of such Series pursuant to Section 3B.02. The Company may not issue
new Securities to replace Securities it has paid or delivered to the Trustee for
cancellation.
Section 2.13. Defaulted Interest.
If the Company defaults in a payment of interest on the Securities of
any Series, it shall pay the defaulted interest, plus any interest payable on
the defaulted interest, to the extent lawful, to the Persons who are Holders of
such Securities on a subsequent special record date ("Special Record Date") and
such term, as used in this Section 2.13 with respect to the payment of any
defaulted interest, shall mean the fifteenth day next preceding the date fixed
by the Company for the payment of defaulted interest, whether or not such day is
a Business Day. At least 15 days before the Special Record Date, the Company
shall mail to each holder of such Securities a notice that states the Special
Record Date, the payment date and the amount of defaulted interest to be paid.
Section 2.14. Persons Deemed Owners.
The Company, any Guarantor, the Trustee and any Agent may treat the
Person in whose name any Security is registered as the owner of such Security
for the purpose of receiving payment of principal of, premium, if any, and
(subject to Section 2.13) interest on such Security and for all other purposes
whatsoever whether or not such Security shall have matured, and none of the
Company, any Guarantor, the Trustee or any Agent shall be affected by any notice
to the contrary.
ARTICLE 3A
Redemption
Section 3A.01. Right of Redemption.
Redeemable Securities may be redeemed otherwise than through the
operation of the Sinking Fund provided for in Article 3B at the election of the
Company at the times, on the conditions and at the Redemption Prices specified
therein, in (or pursuant to) the Authorizing Resolutions relating thereto or in
the supplemental indenture (if any) executed in connection with the issuance of
such Securities to the extent provided therein, any Redemption Price to be
accompanied by accrued interest to the Redemption Date.
Section 3A.02. Applicability of Article.
Redemption of Securities at the election of the Company or otherwise,
as permitted or required by any provision referred to in Section 3A.01, shall be
made in accordance with such provision and this Article.
Section 3A.03. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities of any Series
shall be evidenced by a Board Resolution or set forth in an Officers'
Certificate which states that such election has been duly authorized by all
requisite corporate action on the part of the Company. The Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of the Series or the
several Series, as the case may be, to be redeemed. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
Section 3A.04. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities of any Series are to be redeemed, the
particular Securities of such Series to be redeemed shall be selected not more
than 90 days prior to the Redemption Date by the Trustee, from the outstanding
Securities of such Series not previously called for redemption on a pro rata
basis or by lot, as the Trustee deems appropriate in its sole discretion. The
Trustee may select for redemption portions (equal to the minimum authorized
denomination of the Series or any integral multiple thereof) of the principal
amount of such Securities of a denomination larger than such minimum
denomination. If the Company shall so specify, Securities held by the Company or
any Guarantor or any of their respective Subsidiaries or Affiliates shall not be
included in the Securities selected for redemption.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
Section 3A.05. Notice of Redemption.
Notice of redemption shall be given by first class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all outstanding Securities of the Series are to be re
deemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Securities to be redeemed;
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security, and that interest thereon shall cease to
accrue on and after said date;
(5) that the redemption is for a Sinking Fund, if such is the case;
and
(6) the place or places where such Securities are to be surrendered
for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name of and at the expense of the Company.
Section 3A.06. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 2.05) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date, unless otherwise specified in or
pursuant to the Authorizing Resolutions or in the supplemental indenture
executed in connection with the particular Series) any accrued interest on, all
the Securities or portions thereof which are to be redeemed on that date.
Section 3A.07. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price thereof and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice such Security shall be paid by the
Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that, unless otherwise specified in or
pursuant to the Authorizing Resolutions and/or in the supplemental indenture
executed in connection with the particular Series, installments of interest
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities registered as such on the relevant Regular or
Special Record Date according to their terms and the provisions of such Security
and Section 2.13.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the Redemption Date at the rate borne by the
Security or, in the case of Original Issue Discount Securities, at a rate equal
to the Yield to Maturity thereof.
Section 3A.08. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at the office or agency of the Company maintained for that purpose pursuant to
Section 4.02 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his attorney duly authorized
in writing), and the Company shall execute and the Trustee shall authenticate
and deliver to the Holder of such Security, without service charge, a new
Security or Securities of the same Series, with Guarantees endorsed thereon and
executed by the Guarantors, of any authorized denomination as requested by such
Holder in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered.
ARTICLE 3B
Sinking Fund
Section 3B.01. Sinking Fund Payments.
As and for a Sinking Fund for the retirement of Sinking Fund
Securities, the Company will, until all such Securities are paid or payment
thereof is duly provided for, deposit in accordance with Section 3A.06, at such
times and subject to such terms and conditions as shall be specified in the
provisions of such Securities and the Authorizing Resolutions and/or
supplemental indenture (if any) relating thereto, such amounts in cash or such
other Required Currency as shall be required or permitted under such provisions
in order to redeem Securities on the specified Redemption Dates at a Redemption
Price equal to their principal amounts, less in each such case the amount of any
credit against such payment received by the Company under Section 3B.02. Each
such Sinking Fund payment shall be applied to the redemption of Securities on
the specified Redemption Date as herein provided.
Section 3B.02. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Securities of the same Series (other than
any Securities of such Series previously called for redemption pursuant to the
Sinking Fund or theretofore applied as a credit against a Sinking Fund payment)
and (2) may apply as a credit Securities of the same Series redeemed at the
election of the Company pursuant to Section 3A.01 or through the operation of
the Sinking Fund in any period in excess of the minimum amount required for such
period under Section 3B.01 and not theretofore applied as a credit against a
Sinking Fund payment, in each case in satisfaction of all or any part of any
Sinking Fund payment required to be made pursuant to Section 3B.01. Each such
Security so delivered or applied shall be credited for such purpose by the
Trustee at a Redemption Price equal to its principal amount or, in the case of
an Original Issue Discount Security, its then accreted value, and the required
amount of such Sinking Fund payment in respect of such Series shall be reduced
accordingly.
Section 3B.03. Redemption of Securities for Sinking Fund.
If in any year the Company shall elect to redeem in excess of the
minimum principal amount of Securities of any Series required to be redeemed
pursuant to Section 3B.01 or to satisfy all or any part of any Sinking Fund
payment by delivering or crediting Securities of the same Series pursuant to
Section 3B.02, then at least 45 days prior to the date on which the Sinking Fund
payment in question shall be due, the Company shall deliver to the Trustee an
Officers' Certificate specifying the amount of the Sinking Fund payment and the
portions thereof which are to be satisfied by payment of cash or such other
Required Currency, by delivery of Securities of such Series or by crediting
Securities of such Series, and, at least 45 days prior to the Sinking Fund
payment date (or such shorter period as shall be approved by the Trustee), will
also deliver to the Trustee the Securities of such Series to be so delivered.
Such Officers' Certificate shall also state that the Securities forming the
basis of any such credit do not include any Securities which have been redeemed
through the operation of the Sinking Fund in the minimum amount required under
Section 3B.01 or previously credited against any Sinking Fund payment. The
Trustee shall, upon the receipt of such Officers' Certificate (or, if it shall
not have received such an Officers' Certificate at least 45 days prior to the
Sinking Fund payment date, then following such 45th day), select the Securities
of such Series to be redeemed upon the next Sinking Fund payment date, in the
manner specified in Section 3A.04, 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 3A.05. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
3A.06, 3A.07 and 3A.08.
ARTICLE 4
Covenants
Section 4.01. Payment of Securities.
The Company shall pay the principal of, premium, if any, and interest
on the Securities of each Series on the dates and in the manner provided in the
Securities and in this Indenture. An installment of principal, premium, if any,
or interest shall be considered paid on the date due if the Trustee or Paying
Agent (other than the Company or a Subsidiary) holds on that date money
designated for and sufficient to pay the installment.
The Company shall pay interest on overdue principal at the respective
rates borne by such Securities or, in the case of Original Issue Discount
Securities, at rates equal to the respective Yields to Maturity thereof; it
shall pay interest on overdue installments of interest at the respective rates
borne by such Securities to the extent lawful.
Section 4.02. Maintenance of Office or Agency.
Except as otherwise provided in the Authorizing Resolutions and/or
supplemental indenture (if any) relating to any Series, the Company will
maintain in The City of New York, an office or agency where Securities may be
surrendered for registration of transfer or exchange or for presentation for
payment and where notices and demands to or upon the Company in respect to the
Securities and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of any Series or a particular Series
may be presented or surrendered for any or all such purposes and may from time
to time rescind such designations; provided, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in The City of New York, for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
The Company hereby initially designates the Trustee in The City of New
York, as an agency of the Company in accordance with Section 2.04.
Section 4.03. Corporate Existence.
Subject to Article 5, each of the Company and the Guarantors will do
or cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and its rights (charter and statutory) and
material franchises; provided, however, that neither the Company nor any
Guarantor shall be required to preserve any such right or franchise if the Board
of Directors or management of the Company or such Guarantor shall determine that
the preservation thereof is no longer desirable in the conduct of the business
of the Company and its Subsidiaries, taken as a whole, or such Guarantor and its
Subsidiaries taken as a whole, as the case may be, and if the loss thereof is
not, and will not be, adverse in any material respect to the Holders.
Section 4.04. Reserved.
Section 4.05. Compliance Certificate.
The Company shall deliver to the Trustee within 90 days after the end
of each fiscal quarter of the Company an Officers' Certificate stating whether
or not the signers know of the existence of any Default or Event of Default by
the Company or the Guarantors and whether all of the conditions and covenants of
the Company and the Guarantors are being complied with regardless of any period
of grace or requirement of notice provided under the Indenture. If they do know
of such a Default or Event of Default, the certificate shall describe the
Default or Event of Default, as the case may be, and its status. The first
Officers' Certificate to be delivered pursuant to this Section 4.05 shall be for
the fiscal quarter ending immediately after the Original Issue Date.
Section 4.06. SEC Reports.
(a) The Company shall file with the Trustee within 15 days after it
files them with the SEC copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as the SEC may by rules and regulations prescribe) which the Company is required
to file with the SEC pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934, as amended. The Company also shall comply with the other provisions
of Section 314(a) of the TIA.
(b) So long as the Securities of any Series remain outstanding, the
Company shall cause its annual report to stockholders and any quarterly or other
financial reports furnished by it to stockholders to be mailed to the Holders of
Securities outstanding at their addresses appearing in the Security Register.
Section 4.07. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury law or
other law, which would prohibit or forgive the Company from paying all or any
portion of the principal of, premium, if any and/or interest on the Securities
of any Series as contemplated herein, wherever enacted, now or at any time
hereafter in force, or which may affect the covenants or the performance of this
Indenture; and (to the extent that it may lawfully do so) the Company 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.
Section 4.08. Restrictions on Liens.
Neither the Company nor any Guarantor will incur, create, assume or
otherwise become liable in respect of any Indebtedness secured by a Lien, or
guarantee any Indebtedness with a guarantee which is secured by a Lien, on any
Principal Domestic Property of the Company or a Guarantor, as the case may be,
or any shares of stock or Indebtedness of any Significant Subsidiary, without
effectively providing that the Securities of each Series (together with, if the
Company or a Guarantor, as the case may be, shall so determine, any other
Indebtedness of the Company or a Guarantor, as the case may be, then existing or
thereafter created ranking equally with the Securities of each Series) shall be
secured equally and ratably with (or, at the option of the Company or a
Guarantor, as the case may be, prior to) such secured Indebtedness, so long as
such secured Indebtedness shall be so secured; provided, however, that this
Section 4.08 shall not apply to Indebtedness secured by:
(1) Liens existing on the date of this Indenture;
(2) Liens in favor of governmental bodies to secure progress, advance
or other payments;
(3) Liens existing on property, shares of stock or Indebtedness at the
time of acquisition thereof (including acquisition through lease, merger or
consolidation) or Liens to secure the payment of all or any part of the purchase
price thereof or the cost of construction, installation, renovation, improvement
or development thereon or thereof or to secure any Indebtedness incurred prior
to, at the time of, or within 360 days after the later of the acquisition,
completion of such construction, installation, renovation, improvement or
development or the commencement of full operation of such property or within 360
days after the acquisition of such shares or Indebtedness for the purpose of
financing all or any part of the purchase price thereof;
(4) Liens securing Indebtedness in an aggregate amount which, at the
time of incurrence and together with all outstanding Attributable Debt in
respect of Sale and Leaseback Transactions permitted by clause (y) of the second
paragraph of Section 4.09, does not exceed 10 percent of the Consolidated Net
Tangible Assets of the Company;
(5) Liens to secure Indebtedness other than Funded Debt; and
(6) any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any Lien referred to in the
foregoing clauses (1) to (5) inclusive; provided, that such extension, renewal
or replacement of such Lien is limited to all or any part of the same property,
shares of stock or Indebtedness that secured the Lien extended, renewed or
replaced (plus improvements on such property), and that such secured
Indebtedness at such time is not increased.
If at any time the Company or a Guarantor, as the case may be, shall
incur, create, assume or otherwise become liable in respect of any Indebtedness
secured by a Lien, or guarantee any Indebtedness with a guarantee which is
secured by a Lien, on any Principal Domestic Property of the Company or a
Guarantor, as the case may be, or any shares of stock or Indebtedness of any
Significant Subsidiary other than as permitted under clauses (1) through (6) of
this Section 4.08, the Company or a Guarantor, as the case may be, shall
promptly deliver to the Trustee (i) an Officers' Certificate stating that the
covenant of the Company or a Guarantor, as the case may be, to secure the
Securities equally and ratably with such secured Indebtedness pursuant to this
Section 4.08 has been complied with and (ii) an Opinion of Counsel that such
covenant has been complied with and that any instruments executed by the Company
or a Guarantor, as the case may be, in performance of such covenant comply with
the requirements of such covenant.
Section 4.09. Restrictions on Sales and Leasebacks.
Except as shall otherwise be permitted with respect to a Guarantor in
accordance with Section 10.02, neither the Company nor any Guarantor will sell
or transfer any Principal Domestic Property of the Company or a Guarantor, as
the case may be, with the Company or a Guarantor, as the case may be, taking
back a lease of such Principal Domestic Property of the Company or a Guarantor,
as the case may be, (a "Sale and Leaseback Transaction"), unless (i) such
Principal Domestic Property of the Company or a Guarantor, as the case may be,
is sold within 360 days from the date of acquisition of such Principal Domestic
Property of the Company or a Guarantor, as the case may be, or the date of the
completion of construction or commencement of full operations on such Principal
Domestic Property of the Company or a Guarantor, as the case may be, whichever
is later, or (ii) the Company or a Guarantor, as the case may be, within 120
days after such sale, applies or causes to be applied to the retirement of
Funded Debt of the Company or a Guarantor, as the case may be, or any Subsidiary
(other than Funded Debt of the Company or a Guarantor, as the case may be, which
by its terms or the terms of the instrument pursuant to which it was issued is
subordinate in right of payment to the Securities of each Series) an amount not
less than the greater of (A) the net proceeds of the sale of such Principal
Domestic Property of the Company or a Guarantor, as the case may be, or (B) the
fair value (as determined in any manner approved by the Board of Directors) of
such Principal Domestic Property of the Company or a Guarantor, as the case may
be.
The provisions of this Section 4.09 shall not prevent a Sale and
Leaseback Transaction (x) if the lease entered into by the Company or a
Guarantor in connection therewith is for a period, including renewals, of not
more than 36 months or (y) if the Company or a Guarantor, as the case may be,
would, at the time of entering into such Sale and Leaseback Transaction, be
entitled, without equally and ratably securing the Securities, to create or
assume a Lien on such Principal Domestic Property of the Company or a Guarantor
securing Indebtedness in an amount at least equal to the Attributable Debt in
respect of such Sale and Leaseback Transaction pursuant to clause (4) of Section
4.08.
This Section 4.09 shall not prevent or prohibit a transfer which
results in the termination of the Guarantor's liabilities and obligations
hereunder in accordance with Section 10.02.
ARTICLE 5
Successor Corporation
Section 5.01. When the Company and the Guarantors May Merge, etc.
Except as shall otherwise be permitted with respect to a Guarantor in
accordance with Section 10.02, each of the Company and the Guarantors covenants
that it shall not consolidate with or merge with or into any other Person or
transfer all or substantially all of its respective properties and assets as an
entirety to any Person, unless:
(1) either the Company or a Guarantor, as the case may be, shall be
the continuing Person, or the Person (if other than the Company or such
Guarantor) formed by such consolidation or into which the Company or such
Guarantor is merged or to which all or substantially all of the properties and
assets of the Company or the properties and assets of such Guarantor as an
entirety are transferred shall be a corporation organized and existing under the
laws of the United States or 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, all the
obligations of the Company or such Guarantor, as the case may be, under the
Securities of each Series or the related Guarantees, as applicable, and this
Indenture;
(2) immediately before and immediately after giving effect to such
transaction, no Event of Default and no Default shall have occurred and be
continuing; and
(3) the Company or the Guarantor shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture comply with
this Article and that all conditions precedent herein provided for relating to
such transactions have been complied with.
This Section 5.01 shall not prevent or prohibit a Transfer which
results in the termination of the Guarantor's liabilities and obligations
hereunder in accordance with Section 10.02.
Notwithstanding the foregoing, any Guarantor or Subsidiary may
consolidate with, merge with or into or transfer all or part of its properties
and assets to the Company or any other Guarantor or Subsidiary.
Section 5.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any transfer of all or
substantially all of the properties and assets of any of the Company or the
Guarantors in accordance with Section 5.01, the successor corporation formed by
such consolidation or into which any of the Company or the Guarantors is merged
or to which such transfer is made shall succeed to, and be substituted for, and
may exercise every right and power of, the Company or a Guarantor under this
Indenture with the same effect as if such successor corporation had been named
as the Company or a Guarantor herein.
ARTICLE 6
Default and Remedies
Section 6.01. Events of Default.
An "Event of Default" means, with respect to any Series of Securities,
unless it is either inapplicable to a particular Series or it is specifically
deleted or modified in the Authorizing Resolutions and/or supplemental indenture
(if any) in respect of such Series, and any other events which may be specified
as Events of Default in the Authorizing Resolutions and/or supplemental
indenture (if any) in respect of such Series:
(1) the default in the payment of interest on any Securities of such
Series when the same becomes due and payable and the default continues for a
period of 30 days;
(2) the default in the payment of principal (or premium, if any, on)
any Securities of such Series when the same becomes due and payable at its
Maturity or otherwise or defaults in the deposit of any Sinking Fund installment
in respect of such Series, when and as payable by the terms of Section 3B.01
hereof;
(3) the Company or any of the Guarantors fail to comply with any of
their other agreements contained in the Securities of such Series or this
Indenture (other than an agreement relating exclusively to another Series of
Securities) and the default continues for the period and after the notice
specified below;
(4) the Company or any of the Guarantors pursuant to or within the
meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding,
(B) consents to the entry of an order for relief against it in an
involuntary case or proceeding,
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
or
(5) a court of competent jurisdiction enters an order or decree which
remains unstayed and in effect for 60 days under any Bankruptcy Law that:
(A) is for relief against the Company or any of the Guarantors in
an involuntary case or proceeding,
(B) appoints a Custodian of the Company or any of the Guarantors
for all or substantially all of its properties, or
(C) orders the liquidation of the Company or any of the
Guarantors,
the term "Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator, sequestrator or similar official under
any Bankruptcy Law; or
(6) except as permitted by this Indenture, any Guarantee shall be held
in any judicial proceeding to be unenforceable or invalid or shall cease for any
reason to be in full force and effect or any Guarantor or any Person acting on
behalf of such Guarantor shall deny or disaffirm its obligations under such
Guarantee.
A Default under clause (3) is not an Event of Default until the
Trustee notifies the Company, or the Holders of at least 25% in principal amount
of the outstanding Securities of such Series notify the Company and the Trustee,
of the Default and the Company does not cure the Default within 60 days after
receipt of the notice. The notice must specify the Default, demand that it be
remedied and state that the notice is a "Notice of Default." When a Default is
cured, it ceases. Such notice shall be given by the Trustee if so requested by
the Holders of at least 25% in principal amount of the Securities of such Series
then outstanding.
Subject to the provisions of Sections 7.01 and 7.02, the Trustee shall
not be charged with knowledge of any Event of Default unless written notice
thereof shall have been given to a Trust Officer at the corporate trust office
of the Trustee by the Company, the Paying Agent, any Holder or an agent of any
Holder.
Section 6.02. Acceleration.
If an Event of Default (other than an Event of Default specified in
Section 6.01(4) or (5)) with respect to Securities of any Series occurs and is
continuing, the Trustee may, by notice to the Company, or if the Holders of at
least 25% in principal amount of such Securities of such Series then
outstanding, by notice to the Company and the Trustee so request, the Trustee
shall, upon the request of such Holders, declare all unpaid principal of (or, if
such Securities are Original Issue Discount Securities, such portion of the
principal amount as may then be payable on acceleration as provided in the terms
thereof), premium, if any, and accrued but unpaid interest to the date of
acceleration on all such Securities of such Series then outstanding (if not then
due and payable) to be due and payable and, upon any such declaration, the same
shall become and be immediately due and payable. If an Event of Default
specified in Section 6.01(4) or (5) occurs, all unpaid principal of (or, if any
Securities are Original Issue Discount Securities, such portion of the principal
amount as may then be payable on acceleration as provided in the terms thereof),
premium, if any, and accrued but unpaid interest on all Securities of every
Series then outstanding shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Securityholder. Upon payment of such principal amount, premium, if any, and
interest, all of the Company's obligations under such Securities of such Series
and this Indenture with respect to such Securities of such Series, other than
obligations under Section 7.07, shall terminate. The Holders of a majority in
principal amount of the outstanding Securities of such Series then outstanding
by notice to the Trustee may rescind an acceleration and its consequences if (i)
all existing Events of Default, other than the non-payment of the principal of
the Securities of such Series which has become due solely by such declaration of
acceleration, have been cured or waived, (ii) to the extent the payment of such
interest is lawful, interest on overdue installments of interest, premium, if
any, and overdue principal, which has become due otherwise than by such
declaration of acceleration, has been paid, (iii) the rescission would not
conflict with any judgment or decree of a court of competent jurisdiction and
(iv) all payments due to the Trustee and any predecessor Trustee under Section
7.07 have been made. Anything herein contained to the contrary notwithstanding,
in the event of any acceleration pursuant to this Section 6.02, the Company
shall not be obligated to pay any premium in connection with any repayment
arising from an Event of Default.
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of, premium, if any, or interest on the Securities of the
Series as to which the Event of Default shall have occurred or to enforce the
performance of any provision of such Securities or the Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities of the Series as to which the Event of Default shall have
occurred or does not produce any of them in the proceeding. A delay or omission
by the Trustee or any Securityholder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. No remedy is exclusive of any
other remedy. All available remedies are cumulative to the extent permitted by
law.
Section 6.04. Waiver of Past Defaults.
Subject to Sections 6.07 and 9.02, the Holders of a majority in
principal amount of the outstanding Securities of a Series by written notice to
the Trustee may waive an existing Default or Event of Default and its
consequences, except a Default in the payment of principal of or premium, if
any, or interest on any such Security as specified in clauses (1) and (2) of
Section 6.01. When a Default or Event of Default is waived, it is cured and
ceases.
Section 6.05. Control by Majority.
The Holders of a majority in principal amount of the outstanding
Securities of a Series (or, if more than one Series is affected, of all such
Series voting as a single class) may 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 it. However, the Trustee may refuse to follow
any direction that conflicts with any law or this Indenture that the Trustee
determines may be unduly prejudicial to the rights of another Securityholder, or
that may involve the Trustee in personal liability; provided that the Trustee
may take any other action deemed proper by the Trustee which is not inconsistent
with such direction.
Section 6.06. Limitation on Suits.
A Securityholder may not pursue any remedy with respect to this
Indenture or the Securities of the applicable Series unless:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holders of at least 25% in principal amount of the outstanding
Securities of the Series in respect of which the Event of Default has occurred
make a written request to the Trustee to pursue a remedy;
(3) such Holder or Holders offer to the Trustee indemnity satisfactory
to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in principal
amount of the outstanding Securities of such Series do not give the Trustee a
direction which, in the opinion of the Trustee, is inconsistent with the
request.
A Holder of Securities of any Series may not use this Indenture to
prejudice the rights of any other Holders of Securities of that Series or to
obtain a preference or priority over any other Holders of Securities of that
Series.
Section 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal of and premium, if any, and interest
on the Security, on or after the respective due dates expressed in such
Security, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
such Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default in payment of interest or principal specified
in Section 6.01(1) or (2) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
or any other obligor on the Securities of the Series in respect of which the
Event of Default has occurred for the whole amount of principal, premium, if
any, and accrued interest remaining unpaid, together with interest overdue on
principal or, in the case of Original Issue Discount Securities, the then
accreted value, and to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the rate per annum
borne by such Securities or, in the case of Original Issue Discount Securities,
at a rate equal to the Yield to Maturity thereof, and such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Securityholders allowed in any judicial proceedings relative to the Company (or
any other obligor upon the Securities), its creditors or its property and shall
be entitled and empowered to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same, and any
Custodian in any such judicial proceedings is hereby authorized by each
Securityholder 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
Securityholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07. Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Securityholder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
of any Series or the rights of any Holder thereof, or to authorize the Trustee
to vote in respect of the claim of any Securityholder in any such proceeding.
Section 6.10. Priorities.
If the Trustee collects any money or property pursuant to this Article
6 with respect to Securities of a Series, it shall pay out the money or property
in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for amounts due and unpaid on the Securities of
such Series in respect of which monies have been collected for principal,
premium, if any, and interest, 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; and
Third: to the Company.
The Trustee, upon prior written notice to the Company, may fix a
record date and payment date for any payment to Securityholders pursuant to this
Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07, or a suit by any Holder or a group of Holders of more
than 10% in principal amount of the outstanding Securities of all Series (or, if
the matter in issue does not relate to all Series of Securities, then the
Holders of 10% in principal amount of the outstanding Securities of all Series
to which such issue relates) (treated as a single class)).
ARTICLE 7
Trustee
Section 7.01. Duties of Trustee.
(a) The Trustee, except during the continuance of an Event of Default
known to it pursuant to Section 6.01, undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture. If an Event of
Default known to the Trustee pursuant to Section 6.01 has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture and use the same degree of care and skill in their exercise
as a prudent Person would exercise or use under the circumstances in the conduct
of his own affairs.
(b) Except during the continuance of an Event of Default known to the
Trustee pursuant to Section 6.01:
(1) the Trustee need perform only those duties as are
specifically set forth in this Indenture and no others and no implied covenants
or obligations shall be read into this Indenture against the Trustee;
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; however, the
Trustee shall examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraphs (a)
and (b) of this Section 7.01;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction received by
it pursuant to Section 6.05.
(d) 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.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section 7.01.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree with the Company in writing. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
Section 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) the Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper Person; the Trustee need not
investigate any fact or matter stated in the document;
(b) before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel, which shall conform to Section
11.05; the Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on such certificate or opinion;
(c) the Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent appointed with due
care;
(d) the Trustee shall not be liable for any action it takes or omits
to take in good faith which it reasonably believes to be authorized or within
its rights or powers;
(e) the Trustee may consult with counsel and the advice or opinion of
such counsel as to matters of law shall be full and complete authorization and
protection in respect of any action taken, omitted or suffered by it hereunder
in good faith and in accordance with the advice or opinion of such counsel; and
(f) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
the Holders, including, without limitation, the duties, rights and powers
specified in Section 6.02 hereof, unless such Holders have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by the Trustee in compliance with such
request or action.
(g) Except with respect to Section 6.01(1) and Section 6.01(2), the
Trustee shall have no duty to inquire as to the performance of the Company with
respect to the covenants contained in Article 4. In addition, the Trustee shall
not be deemed to have knowledge of an Event of Default except (1) any Event of
Default occurring pursuant to Section 6.01(1) and Section 6.01(2) or (2) any
Event of Default of which the Trustee shall have received written notification
or obtained actual knowledge.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. However, the Trustee is subject to Sections
7.10 and 7.11.
Section 7.04. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities of any Series, it shall not be accountable for
the recitals contained in this Indenture or for the Company's use of the
proceeds from the Securities of any Series, and it shall not be responsible for
any statement in the Securities of any Series, or in any prospectus used to sell
the Securities of any Series, other than its certificate of authentication.
Section 7.05. Notice of Defaults.
If a Default or an Event of Default occurs and is continuing with
respect of any Series of Securities, and if it is actually known to the Trustee
pursuant to Section 6.01 hereof, the Trustee shall mail to each Holder of the
Securities of such Series notice of the Default or Event of Default within 75
days after it occurs. Except in the case of a Default or an Event of Default in
payment of principal of, premium, if any, or interest on any Security or in the
payment of any Sinking Fund installment, the Trustee may withhold such notice if
and so long as a committee of its Trust Officers in good faith determines that
withholding the notice is in the interest of Securityholders.
Section 7.06. Reports by Trustee to Holders.
The Trustee shall transmit to the Holder such reports concerning,
among other things, the Trustee and its action under this Indenture as may be
required pursuant to the TIA at the time and in compliance with Section 313(a)
of the TIA. The Trustee also shall comply with Sections 313(b)(2) and 313(c) of
the TIA.
A copy of each such report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock exchange, if any, on
which the Securities of any Series are listed.
The Company shall notify the Trustee if the Securities of any Series
become listed on any stock exchange.
Section 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such
compensation as shall be agreed upon in writing by the Company and the Trustee.
The Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable disbursements, expenses and advances incurred or made
by it. Such expenses shall include the reasonable compensation, disbursements
and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee for, and hold it harmless
against, any loss or liability incurred by it in connection with the
administration of this trust and its duties hereunder, including the reasonable
expenses of defending itself against any claim of liability arising hereunder.
The Trustee shall notify the Company promptly of any claim asserted against the
Trustee for which it may seek indemnity. The Company need not pay for any
settlement made without its written consent, which consent shall not be
unreasonably withheld. The Company need not reimburse any expense or indemnify
against any loss or liability incurred by the Trustee through negligence or bad
faith.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a lien prior to the Securities of each Series on all money or
property held or collected by the Trustee, in its capacity as Trustee, except
money or property held in trust to pay principal of, premium, if any, or
interest on particular Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(4) or (5) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
Section 7.08. Replacement of Trustee.
The Trustee may resign by so notifying the Company in writing. The
Holders of a majority in principal amount of the outstanding Securities of all
Series (voting as a single class) may remove the Trustee by so notifying the
Trustee in writing and may appoint a successor Trustee with the Company's
consent. Pursuant to a Company Order, the Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the Securities of all Series (voting as a
single class) may appoint a successor Trustee to replace the successor Trustee
appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer, after payment of all sums then owing to the
Trustee pursuant to Section 7.07, all property and documentation held by it as
Trustee to the successor Trustee, subject to the lien provided in Section 7.07,
the resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. A successor Trustee shall mail notice of its
succession to each Securityholder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the outstanding Securities of all
Series (voting as a single class) may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee. Any successor Trustee shall comply
with TIA (S) 310(a)(5).
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
Section 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
Section 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of Section 310(a)(1) of the TIA. The Trustee shall have a combined
capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition. The Trustee shall comply with Section
310(b) of the TIA, including the provision permitted by the second sentence of
Section 310(b) of the TIA.
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with Section 311(a) of the TIA, excluding
from the operation of Section 311(a) of the TIA any creditor relationship listed
in Section 311(b) of the TIA. A Trustee who has resigned or been removed shall
be subject to Section 311(a) of the TIA to the extent indicated.
ARTICLE 8
Defeasance, Covenant Defeasance, Satisfaction and Discharge
Section 8.01. Applicability of Article; Company's Option to Effect Defeasance or
Covenant Defeasance.
If pursuant to Section 2.02 provision is made for either or both of
(a) defeasance of the Securities of any Series under Section 8.02 or (b)
covenant defeasance of the Securities of any Series under Section 8.03 to apply
to such Securities, then the provisions of such Section or Sections, as the case
may be, together with the other provisions of this Article Eight, shall be
applicable to the Securities and the Company may at its option, at any time,
with respect to the Securities, elect to have either Section 8.02 (if
applicable) or Section 8.03 (if applicable) be applied to the outstanding
Securities upon compliance with the conditions set forth below in this Article
Eight.
Section 8.02. Defeasance and Discharge.
Upon the Company's exercise of the above option applicable to this
Section, the Company and the Guarantors shall be deemed to have been discharged
from their respective obligations with respect to the outstanding Securities on
the date the conditions set forth below are satisfied (hereinafter,
"Defeasance").
For this purpose, such Defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by the
outstanding Securities and the Company and the Guarantors shall be deemed to
have satisfied all their respective obligations under the Securities and the
Guarantees 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), except for the following which shall survive until
otherwise terminated or discharged hereunder:
(a) the rights of Holders of outstanding Securities to receive, solely
from the trust fund described in Section 8.04 and as more fully set forth in
such Section, payments in respect of the principal of, premium, if any, and
interest on such outstanding Securities when such payments are due;
(b) the Company's obligations with respect to such Securities under
Sections 2.07, 2.08, 4.02 and 7.07;
(c) the rights, powers, trusts, duties and immunities and other
provisions in respect of the Trustee hereunder; and
(d) this Article Eight.
Subject to compliance with this Article Eight, the Company may
exercise its option under this Section 8.02 notwithstanding the prior exercise
of its option under Section 8.03 with respect to the Securities of any Series.
Section 8.03. Covenant Defeasance.
Upon the Company's exercise of the above option applicable to this
Section, the Company shall be released from its obligations under Sections 4.03,
4.06, 4.08, 4.09 and 5.01, and Sections 4.05 and 6.01(3) (as they relate to
Sections 4.03, 4.06, 4.08, 4.09 and 5.01) with respect to the outstanding
Securities of any Series on and after the date the conditions set forth below
are satisfied (hereinafter, "Covenant Defeasance").
For this purpose, such Covenant Defeasance means that, with respect to
the outstanding Securities of any Series, 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 Section, 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.
Following a Covenant Defeasance, payment of such Securities may not be
accelerated because of an Event of Default specified above in this Section 8.03.
Section 8.04. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
8.02 or Section 8.03 to the outstanding Securities of any Series:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee 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 the Securities of any Series (1) in the case
of Securities of any Series denominated in U.S. dollars, (A) an amount of cash,
or (B) direct non-callable obligations of, or non-callable obligations
guaranteed by, the United States of America for the payment of which guarantee
or obligation the full faith and credit of the United States is pledged,
including, but not limited to, depository receipts issued by a bank as custodian
with respect to any such security held by the custodian for the benefit of the
holder of such depository receipt ("U.S. Government Obligations"), which through
the scheduled payment of principal and interest in respect thereof in accordance
with their terms will provide, within two weeks of the due date of any payment,
money in an amount, or (C) a combination thereof, sufficient, without
reinvestment, in the opinion of a nationally recognized firm of independent
public accountants approved by the trustee in the exercise of reasonable care
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee to pay and discharge,
the principal of, premium, if any, and each installment of interest on such
Securities on their respective Stated Maturities in accordance with the terms of
this Indenture and of such Securities, or (2) in the case of Securities of any
Series denominated in currency other than U.S. dollars, an amount of Required
Currency sufficient to pay and discharge, and which shall be applied by the
Trustee to pay and discharge, the principal of, premium, if any, and each
installment of interest on such Securities on their respective Stated Maturities
in accordance with the terms of this Indenture and of such Securities. Before
such a deposit, the Company may make arrangements satisfactory to the Trustee
for the redemption of any Securities of such Series at a future date in
accordance with any redemption provisions relating to such Securities, which
shall be given effect in applying the foregoing.
(b) No Event of Default or event with which notice or lapse of time or
both would become an Event of Default with respect to such Securities shall have
occurred and be continuing on the date of such deposit and, with respect to
defeasance only, at any time during the period ending on the 123rd day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(c) Such Defeasance or Covenant Defeasance shall not cause the Trustee
for the Securities to have a conflicting interest for purposes of the TIA with
respect to any Securities of the Company.
(d) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or any
other agreement or instrument to which the Company is a party or by which it is
bound.
(e) Such Defeasance or Covenant Defeasance shall not cause any
Securities of such Series then listed on any registered national securities
exchange under the Securities Exchange Act of 1934, as amended, to be delisted.
(f) In the case of an election under Section 8.02, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the Company
has received from, or there has been published by, the Internal Revenue Service
a ruling, or (y) since the date of this Indenture there has been a change in the
applicable federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of the outstanding
Securities of such Series will not recognize gain or loss for federal income tax
purposes as a result defeasance and will be subject to federal income tax on the
same amounts, in the same manner and at the same times as would have been the
case if such defeasance had not occurred.
(g) In the case of an election under Section 8.03, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the outstanding Securities of such Series will not recognize income,
gain or loss for federal income tax purposes as a result of such Covenant
Defeasance and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such covenant
defeasance had not occurred.
(h) Such Defeasance or Covenant Defeasance shall be effected in
compliance with any additional terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to Section 2.02.
(i) The Company shall have delivered to the Trustee an Officers'
Certificate or an Opinion of Counsel, stating that all conditions precedent
provided for in the Indenture relating to either the Defeasance under Section
8.02 or the Covenant Defeasance under Section 8.03 (as the case may be) have
been complied with.
Section 8.05. Deposited Money and U.S. Government Obligations to be Held in
Trust; Other Miscellaneous Provisions.
All money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 8.04 in respect of the
outstanding 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 Paying Agent (but not 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, premium, if any, and interest but such money need not be
segregated, from other funds except to the extent required by law.
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 8.04 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 the Outstanding Securities.
Anything in this Article 8 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 8.04 which, in the opinion of a nationally recognized firm of
independent public accountants approved by the trustee in the exercise of
reasonable care 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 an equivalent Defeasance or Covenant Defeasance.
Section 8.06. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect with respect to the Securities specified in such Company Request (except
as to rights of registration of transfer or exchange of Securities herein
expressly provided for, and the Trustee on receipt of the Company Request, at
the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when:
(a) either
(i) all Securities theretofore authenticated and delivered (other than
Securities which have been mutilated, destroyed, lost or stolen and which have
been replaced as provided in Section 2.08 or paid) have been delivered to the
Trustee for cancellation; or
(ii) all such Securities not theretofore delivered to the Trustee for
cancellation:
(A) have become due and payable, or
(B) will become due and payable at their Stated Maturity within
one year, or
(C) if redeemable at the option of the Company are to be called
for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company, and the Company, in the case
of (A), (B) or (C) above, has deposited or caused to be deposited with
the Trustee as trust funds in trust for the purpose an amount
sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation,
for principal, premium, if any, and interest to the date of such
deposit or, in the case of Securities which have become due and
payable, to the Stated Maturity or Redemption Date, as the case may
be;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers' Certificate
or an Opinion of Counsel, stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture with respect to
such Securities have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to the Securities, the obligations of the Company to the Trustee under
Section 7.07, if money shall have been deposited with the Trustee pursuant to
subclause (ii) of clause (a) of this Section, and the obligations of the Company
under Sections 2.07, 2.08, 2.11 and 4.02 shall survive such satisfaction and
discharge.
Section 8.07. Application of Trust Money.
All funds and U.S. Government Obligations deposited with the Trustee
pursuant to Article Eight shall be held in trust and applied by it, in
accordance with the provisions of the Securities for which such deposit was made
and this Indenture, to the payment, either directly or through any Paying Agent
(but not including the Company acting as its own Paying Agent) as the Trustee
may determine, to the Persons entitled thereto, of the principal, premium, if
any, and interest for whose payment such money and U.S. Government Obligations
has been deposited with the Trustee; but such money and U.S. Government
Obligations need not be segregated from other funds except to the extent
required by law.
Section 8.08. Repayment to Company.
Subject to Section 8.05, the Trustee and the Paying Agent shall
promptly pay to the Company upon request any excess money held by them at any
time. Subject to the provisions of applicable law, the Trustee and the Paying
Agent shall pay to the Company upon request any money held by them for the
payment of principal, premium, if any, or interest that remains unclaimed for
two years; provided, however, the Trustee or such Paying Agent before being
required to make any payment may at the expense of the Company cause to be
published once in a newspaper of general circulation in The City of New York or
mail to each Holder entitled to such money notice that such money remains
unclaimed and that, after a date specified therein which shall be at least 30
days from the date of such publication or mailing, any unclaimed balance of such
money then remaining will be repaid to the Company. After payment to the
Company, the Trustee shall be released from all further liability with respect
to such money and Securityholders entitled to money must look to the Company for
payment as general creditors unless an applicable abandoned property law
designates another Person.
Section 8.09. Reinstatement.
If the Trustee or Paying Agent is unable to apply any cash, U.S.
Government Obligations or the Required Currency, as the case may be, in
accordance with this Article 8 by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's obligations
under this Indenture (with respect to the applicable Series) and the Securities
of the applicable Series shall be revived and reinstated as though no deposit
had occurred until such time as the Trustee or Paying Agent is permitted to
apply all such cash, U.S. Government Obligations and Required Currency, as the
case may be, in accordance with this Article 8; provided, however, that if the
Company or any of the Guarantors has made any payment of interest or premium, if
any, on or principal of any Securities of any Series because of the
reinstatement of its obligations, the Company or the Guarantors, as the case may
be, shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the cash, U.S. Government Obligations or the Required
Currency, as the case may be, held by the Trustee or Paying Agent.
ARTICLE 9
Amendments, Supplements and Waivers
Section 9.01. Without Consent of Holders.
The Company and the Guarantors, when authorized by a Board Resolution,
and the Trustee may amend or supplement this Indenture or the Securities of any
Series without notice to or consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article 5;
(3) to provide for uncertificated Securities in addition to
certificated Securities;
(4) to secure the Securities in connection with Section 4.08;
(5) to make any change that does not adversely affect the rights of
any Securityholder of such Series;
(6) to provide for the issuance and the terms of any particular Series
of Securities and the Guarantees, the rights and obligations of the Company, the
Guarantors and the Holders of the Securities of such Series, the form or forms
of the Securities of such Series and such other matters in connection therewith
as the Board of Directors of the Company and the Guarantees shall authorize,
including, without limitation, provisions for (a) additional or different
covenants, restrictions or conditions applicable to such Series, (b) additional
or different Events of Default in respect of such Series, (c) a longer or
shorter period of grace and/or notice in respect of any provision applicable to
such Series than is provided in Section 6.01, (d) immediate enforcement of any
Event of Default in respect of such Series or (e) limitations upon the remedies
available in respect of any Events of Default in respect of such Series or upon
the rights of the holders of Securities of such Series to waive any such Event
of Default; provided, that this paragraph (6) shall not be deemed to require the
execution of a supplemental indenture to provide for the issuance of any Series
of Securities unless the same shall be provided for in the Authorizing
Resolutions relating thereto; or
(7) to provide for a separate Trustee for one or more Series.
Section 9.02. With Consent of Holders.
Subject to Section 6.07, with the written consent of the Holders of a
majority in principal amount of the outstanding Securities of all Series
affected thereby (voting as a single class), the Company and the Guarantors,
when authorized by a Board Resolution, and the Trustee may amend or supplement
this Indenture or such Securities without notice to any Securityholder. Subject
to Section 6.07, the Holders of a majority in principal amount of the
outstanding Securities of all Series affected thereby (voting as a single class)
may waive compliance by the Company and the Guarantors with any provision of
this Indenture or such Securities without notice to any Securityholder;
provided, that, only the Holders of a majority in principal amount of the
outstanding Securities of a particular Series may waive compliance with a
provision of this Indenture or the Securities of such Series having
applicability solely to such Series. However, without the consent of each
Securityholder affected, an amendment, supplement or waiver, including a waiver
pursuant to Section 6.04, may not:
(1) reduce the amount of Securities of such Series or all Series
(voting as a single class), as the case may be, whose Holders must consent to an
amendment, supplement or waiver;
(2) reduce the rate (or change the manner of calculation of the rate)
or change the Stated Maturity for payment of interest on any Security;
(3) reduce the principal of or any premium payable at Maturity or
change the Stated Maturity for payment of the principal of any Security;
(4) waive a Default in the payment of the principal of or premium, if
any, or interest on any Security;
(5) make any changes in Section 6.04, 6.07 or the third sentence of
this Section 9.02;
(6) make any Security payable in a currency other than that stated in
the Security;
(7) impair the Holders' right to institute suit to enforce payment in
respect of the Securities on or after the due date for such payment; or
(8) release any Guarantor from its obligations under its Guarantee.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular Series of Securities, or which modifies the
rights of the Holders of Securities of such Series with respect to such covenant
or other provision, shall be deemed not to affect the rights under the Indenture
of the Holders of Securities of any other Series.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
Section 9.03. Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Securities
shall comply with the TIA as then in effect.
Section 9.04. Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it by a
Holder is a continuing consent by the Holder and every subsequent Holder of such
Security or portion of such Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made on any
Security. However, any such Holder or subsequent Holder may revoke in writing
the consent as to his Security or portion of a Security. Such revocation shall
be effective only if the Trustee receives the written notice of revocation
before the date the amendment, supplement or waiver becomes effective.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver which shall be at least 30 days prior to the first
solicitation of such consent. If a record date is fixed, then notwithstanding
the last two sentences of the immediately preceding paragraph, those Persons who
were Holders at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to consent to such amendment, supplement or
waiver or to revoke any consent previously given, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid or
effective for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder of a Security of such Series, unless it makes a change
described in any of clauses (1) through (6) of Section 9.02. In that case the
amendment, supplement or waiver shall bind each Holder of a Security who has
consented to it and every subsequent Holder of a Security or portion of a
Security of the same Series that evidences the same debt as the consenting
Holder's Security.
Section 9.05. Notation On or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security
or Guarantee, the Trustee may require the Holder of the Security to deliver it
to the Trustee. The Trustee may place an appropriate notation on the Security
and Guarantee about the changed terms and return it to the Holder.
Alternatively, if the Company or the Trustee so determines, the Company in
exchange for the Security shall issue and the Trustee shall authenticate a new
Security of the same Series that reflects the changed terms.
Section 9.06. Trustee to Sign Amendments, etc.
The Trustee shall be entitled to receive, and shall be fully protected
in relying upon, an Officers' Certificate and an Opinion of Counsel stating that
the execution of any amendment, supplement or waiver authorized pursuant to this
Article 9 is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, execute any such amendment, supplement or waiver
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
ARTICLE 10
Guarantee of Securities
Section 10.01. Unconditional Guarantee.
For good and valuable consideration receipt of which is hereby
acknowledged, and intending to be legally bound hereby, the Guarantors hereby
unconditionally and jointly and severally guarantee to each Holder of a Security
of any series, authenticated and delivered by the Trustee, upon which this
guarantee (the "Guarantee") is endorsed, the due and punctual payment of the
principal of, sinking fund payment, if any, premium, if any, and interest on,
and any Redemption Price with respect to such Security, when and as the same
shall become due and payable, whether at Stated Maturity, upon acceleration or
redemption or otherwise, in accordance with the terms of such Security and of
this Indenture.
The Guarantors agree to determine, at least one Business Day prior to
the date upon which a payment of principal of, sinking fund payment, if any,
premium, if any, and interest on said Security, and any Redemption Price with
respect to such Security, is due and payable, whether the Company has available
the funds to make such payment as the same shall become due and payable. In case
of the failure of the Company to punctually pay any such principal of, sinking
fund payment, if any, premium, if any, and interest on, and any Redemption Price
with respect to, such Security, the Guarantors hereby agree to cause any such
payment to be made punctually when and as the same shall become due and payable,
whether at Stated Maturity, upon acceleration or redemption, or otherwise, and
as if such payment were made by the Company.
The Guarantors hereby agree that their obligations hereunder shall be
as principal and not merely as surety, and shall be unconditional, irrevocable,
and absolute, irrespective of, and shall be unaffected by, any invalidity,
irregularity, or unenforceability of such Security or such Indenture, any
failure to enforce the provisions of such Security or such Indenture, or any
waiver, modification, consent or indulgence granted to the Company with respect
thereto (unless the same shall also be provided to the Guarantors), by the
Holder of such Security or the Trustee with respect to any provisions thereof,
the recovery of any judgment against the Company or any action to enforce the
same, or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a surety or of a guarantor. The Guarantors
hereby waive diligence, presentment, demand of payment, filing of claims with a
court in the event of merger, insolvency or bankruptcy of the Company, any right
to require a proceeding first against the Company, protest or notice with
respect to any such Security or the indebtedness evidenced thereby, and all
demands whatsoever and covenants that no Guarantee will be discharged except by
payment in full of the principal, premium, if any, and interest on, and any
Redemption Price with respect to, the Securities and the complete performance of
the obligations contained in such Security, the Guarantee and this Indenture.
The Guarantors shall be subrogated to all rights of the Holder of any
Security against the Company in respect of all amounts paid to such Holder by
the Guarantors pursuant to the provisions of the Guarantee; provided, however,
that the Guarantors shall not, without the consent of the Holders of all of the
Securities then outstanding, be entitled to enforce or to receive any payments
arising out of or based upon such right of subrogation until the principal of,
premium, if any, and interest on, and any Redemption Price with respect to all
Securities shall have been paid in full or payment thereof shall have been
provided for and all other obligations contained in the Securities and this
Indenture shall have been performed. If any amount shall be paid to any
Guarantor in violation of the preceding sentence and all amounts payable in
respect of the Securities shall not have been paid in full, such amount shall be
deemed to have been paid to such Guarantor for the benefit of, and held in trust
for the benefit of, the Holders, and shall forthwith be paid to the Trustee for
the benefit of the Holders to be credited and applied upon such amounts. Each
Guarantor acknowledges that it will receive direct and indirect benefits from
the issuance of the Securities pursuant to this Indenture.
Notwithstanding anything to the contrary contained herein, if
following any payment of principal, premium, if any, sinking fund payment,
Redemption Price or interest by the Company on the Securities to the Holders of
the Securities it is determined by a final decision of a court of competent
jurisdiction that such payment shall be avoided by a trustee in bankruptcy
(including any debtor-in-possession) as a preference under 11 U.S.C. Section 547
and such payment is returned by such Holder to such trustee in bankruptcy, then
and to the extent of such repayment, the obligations of the Guarantors hereunder
shall remain in full force and effect.
Notwithstanding anything to the contrary contained herein, each
Guarantee shall be, and hereby is, limited to the maximum amount that can be
guaranteed by the applicable Guarantor without rendering such Guarantee, as it
relates to such Guarantor, voidable under any applicable law relating to
fraudulent conveyance, fraudulent transfer or similar laws affecting the rights
of creditors generally.
The Guarantee set forth in this Article is intended for the benefit of
the Trustee and each of the Holders of Securities and shall be enforceable by
such Trustee and such Holders.
The Guarantee set forth in this Article shall be governed by the laws
of the State of Indiana.
Section 10.02. Disposition of a Guarantor.
Anything herein to the contrary notwithstanding, if the Company
transfers, or causes the transfer of, all or substantially all of the voting
capital stock or properties and assets of any Guarantor as an entirety to any
Person other than the Company, or a Subsidiary of the Company (including a
Guarantor) whether by merger, consolidation, sale or other transfer (the
"Transfer"), all obligations and liabilities of such Guarantor under this
Indenture and the Guarantee shall terminate upon the consummation of such
Transfer and the Guarantor shall have no further liability or obligation with
respect hereto provided that:
(1) the Guarantor shall have fully repaid to the Company and the other
Guarantors prior to, or simultaneously with, the consummation of the Transfer
all of the Indebtedness owing to the Company or the other Guarantors (including
principal, sinking fund payments, if any, interest accrued to the date of
consummation of the Transfer, premium, if any, thereon and any other amounts due
and payable with respect to such Indebtedness);
(2) Standard & Poor's Ratings Service (or an equivalent rating agency)
has confirmed that the long term credit rating of the Company will not fall
below BBB- (or the equivalent) as a result of the Transfer and ▇▇▇▇▇'▇ Investors
Service, Inc. (or an equivalent rating agency) has confirmed the long term
credit rating of the Company will not fall below Baa3 (or its equivalent) as a
result of the Transfer; and
(3) immediately before and immediately after giving effect to such
transaction no Event of Default and no Default with respect to the Securities
shall have occurred and be continuing.
f
Section 10.03. Execution of Guarantee
To evidence their Guarantee to the Holders specified in Section 10.01,
the Guarantors hereby agree to execute the Guarantee in substantially the form
above recited, to be endorsed on each Security authenticated and delivered by
the Trustee. Each such Guarantee shall be executed on behalf of the Guarantors
in a manner identical to that prescribed in Section 2.03 of the Indenture
relating to the execution, authentication, delivery and dating of such
Securities prior to the authentication of the Security on which it is endorsed,
and the delivery of such Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of such Guarantee on behalf of
the Guarantors.
The Guarantee set forth in this Article shall not be valid or become
obligatory for any purpose with respect to a Security until the certificate of
authentication on such Security shall have been signed by the Trustee.
The Issuer may elect in its sole discretion to cause any subsequent
Subsidiary of the Company to fully and unconditionally guarantee the due and
punctual payment of the Principal of, premium, if any, and interest on and any
other amounts payable under the Securities, when and if the same shall become
due and payable, whether at the Stated Maturity, by declaration of acceleration,
upon redemption, or otherwise, by execution of an indenture supplemental hereto
that adds such Subsidiary as a subsequent Guarantor (each a "Subsequent
Guarantor"); provided, however, that if a subsequent Subsidiary of the Company
guarantees other Indebtedness of the Company, such subsequent Subsidiary will be
required to be a Subsequent Guarantor.
Anything herein to the contrary not withstanding, by the execution of
a supplemental indenture by any Subsequent Guarantor and subject to Section
10.02 , the Guarantee of each such Guarantor in respect of such Securities shall
be set forth in Section 10.01 and shall be effective for all purposes upon
authentication of such Security by or on behalf of the Trustee, regardless of
whether such authentication occurs prior to a Subsequent Guarantor's execution
of the required supplemental indenture.
ARTICLE 11
Miscellaneous
Section 11.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies, or conflicts
with another provision which is required to be included in this Indenture by the
TIA, the required provision shall control.
Section 11.02. Notices.
Any notice or communication shall be sufficiently given if in writing
and delivered in Person or mailed by first-class mail addressed as follows:
if to the Company:
Vectren Utility Holdings, Inc.
▇▇ ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Secretary
if to the Guarantors:
Indiana Gas Company, Inc.
▇▇ ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Secretary
Southern Indiana Gas and Electric Company
▇▇ ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Secretary
Vectren Energy Delivery of Ohio, Inc.
▇▇ ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Secretary
if to the Trustee:
U.S. Bank Trust National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
The Company, any of the Guarantors or the Trustee by notice to the
others may designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Securityholder shall be mailed
to him at his address as it appears on the Security Register and shall be
sufficiently given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. Except for a notice to the Trustee, which is deemed given only
when received, if a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
Section 11.03. Communications by Holders With Other Holders.
Securityholders may communicate pursuant to TIA (S) 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities of an applicable Series. The Company, the Guarantors, the Trustee,
the Registrar and any other Person shall have the protection of Section 312(c)
of the TIA.
Section 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company or the Guarantors to
the Trustee to take any action under this Indenture, the Company shall furnish
to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 11.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, other than the Officers'
Certificate required by Section 4.05, shall include:
(1) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been complied with; provided, however, that with
respect to matters of fact an Opinion of Counsel may rely on an Officers'
Certificate or certificates of public officials.
Section 11.06. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Paying Agent or Registrar may make reasonable rules for its
functions.
Section 11.07. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in New York, New York are not required to be open. If a payment
date is a Legal Holiday at a place of payment, payment may be made at that place
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period. The foregoing may be modified and amended in
or pursuant to the Authorizing Resolutions and/or a supplemental indenture
relating to the execution of the Securities of any Series.
Section 11.08. Governing Law.
THE LAWS OF THE STATE OF INDIANA SHALL GOVERN THIS INDENTURE AND THE
SECURITIES WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
Section 11.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company, the Guarantors or any of their Subsidiaries. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
Section 11.10. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
or any of the Guarantors shall not have any liability for any obligations of the
Company or any of the Guarantors under the Securities or the Indenture or for
any claim based on, in respect of or by reason of such obligations or their
creation. Each Securityholder by accepting a Security waives and releases all
such liability.
Section 11.11. Successors.
All agreements of the Company and the Guarantors in this Indenture and
the Securities shall bind its successor. All agreements of the Trustee in this
Indenture shall bind its successor.
Section 11.12. Duplicate Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
Section 11.13. Separability.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby,
and a Holder shall have no claim therefor against any party hereto.
Section 11.14. Action of Holders when Securities are Denominated in Different
Currencies.
Whenever any action is to be taken hereunder by the Holders of two or
more Series of Securities denominated in different currencies, then, for the
purposes of determining the principal amount of Securities held by such Holders,
the aggregate principal amount of the Securities denominated in a currency other
than United States dollars shall be deemed to be that amount of United States
dollars that could be obtained for such principal amount on the basis of the
spot rate of exchange for such currency as determined by the Company or by an
authorized exchange rate agent and evidenced to the Trustee by an Officers'
Certificate as of the date the taking of such action by the Holders of the
requisite percentage in principal amount of the Securities is evidenced to the
Trustee. An exchange rate agent may be authorized in advance or from time to
time by the Company, and may be the Trustee or its Affiliate. Any such
determination by the Company or by any such exchange rate agent shall be
conclusive and binding on all Holders and the Trustee, and neither the Company
nor such exchange rate agent shall be liable therefor in the absence of bad
faith.
Section 11.15. Monies of Different Currencies to be Segregated.
The Trustee shall segregate monies, funds, and accounts held by the
Trustee hereunder in one currency from any monies, funds or accounts in any
other currencies, notwithstanding any provision herein which would otherwise
permit the Trustee to commingle such amounts.
Section 11.16. Payment to be in Proper Currency.
Each reference in any Security, or in the Authorizing Resolutions
and/or supplemental indenture, if any, relating thereto, to any currency shall
be of the essence. In the case of any Security denominated in any currency (the
"Required Currency") other than United States dollars, except as otherwise
provided therein or in the related Authorizing Resolutions and/or supplemental
indenture, if any, the obligation of the Company to make any payment of
principal of, premium, if any, 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. The costs and risks of any such exchange, including without
limitations, the risks of delay and exchange rate fluctuation, shall be borne by
the Company; 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. 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.
SIGNATURES
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 date first written above.
VECTREN UTILITY HOLDINGS, INC., as Issuer
By:
--------------------------------------
Attest:
-------------------------
INDIANA GAS COMPANY, INC., as Guarantor
By:
--------------------------------------
Attest:
-------------------------
SOUTHERN INDIANA GAS AND ELECTRIC
COMPANY, as Guarantor
By:
--------------------------------------
Attest:
-------------------------
VECTREN ENERGY DELIVERY OF OHIO, INC.,
as Guarantor
By:
--------------------------------------
Attest:
-------------------------
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By:
--------------------------------------
Attest:
-------------------------