Exhibit 4.1
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PP&L CAPITAL FUNDING, INC.,
ISSUER
AND
PP&L RESOURCES, INC.,
GUARANTOR
TO
THE CHASE MANHATTAN BANK,
TRUSTEE
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INDENTURE
DATED AS OF NOVEMBER 1, 1997
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TABLE OF CONTENTS
PARTIES.................................................................... 1
ARTICLE ONE Definitions and Other Provisions of General Application........ 2
SECTION 101. Definitions............................................ 2
Act .......................................................... 2
Affiliate...................................................... 2
Authenticating Agent........................................... 2
Authorized Officer............................................. 2
Board of Directors............................................. 3
Board Resolution............................................... 3
Business Day................................................... 3
Commission..................................................... 3
Company........................................................ 3
Company Order or Company Request............................... 3
Corporate Trust Office......................................... 3
corporation.................................................... 3
Defaulted Interest............................................. 3
Discount Security.............................................. 3
Dollar or $.................................................... 3
Eligible Obligations........................................... 4
Event of Default............................................... 4
Exchange Act................................................... 4
Government Obligations......................................... 4
Guarantee...................................................... 4
Guarantor...................................................... 4
Guarantor Order or Guarantor Request........................... 4
Holder......................................................... 4
Indenture...................................................... 4
interest....................................................... 5
Interest Payment Date.......................................... 5
Maturity....................................................... 5
Notice of Default.............................................. 5
Officer's Certificate.......................................... 5
Opinion of Counsel............................................. 5
Outstanding.................................................... 5
Paying Agent................................................... 6
Periodic Offering.............................................. 6
Person......................................................... 6
Place of Payment............................................... 7
Predecessor Security........................................... 7
Redemption Date................................................ 7
Redemption Price............................................... 7
Regular Record Date............................................ 7
Required Currency.............................................. 7
Responsible Officer............................................ 7
Securities..................................................... 7
Security Register and Security Registrar....................... 7
Special Record Date............................................ 7
Stated Interest Rate........................................... 7
Stated Maturity................................................ 8
Tranche........................................................ 8
Trustee........................................................ 8
Trust Indenture Act............................................ 8
United States.................................................. 8
SECTION 102. Compliance Certificates and Opinions................... 8
SECTION 103. Form of Documents Delivered to Trustee................. 9
SECTION 104. Acts of Holders........................................ 10
SECTION 105. Notices, Etc. to Trustee, Company or Guarantor......... 11
SECTION 106. Notice to Holders of Securities; Waiver................ 13
SECTION 107. Conflict with Trust Indenture Act...................... 13
SECTION 108. Effect of Headings and Table of Contents............... 13
SECTION 109. Successors and Assigns................................. 13
SECTION 110. Separability Clause.................................... 13
SECTION 111. Benefits of Indenture.................................. 14
SECTION 112. Governing Law.......................................... 14
SECTION 113. Legal Holidays......................................... 14
ARTICLE TWO Security Forms................................................. 14
SECTION 201. Forms Generally........................................ 14
SECTION 202. Form of Trustee's Certificate of Authentication........ 15
ARTICLE THREE The Securities............................................ 15
SECTION 301. Amount Unlimited; Issuable in Series................... 15
SECTION 302. Denominations.......................................... 18
SECTION 303. Execution, Authentication, Delivery and Dating......... 19
SECTION 304. Temporary Securities................................... 21
SECTION 305. Registration, Registration of Transfer and Exchange.... 22
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities....... 23
SECTION 307. Payment of Interest; Interest Rights Preserved......... 24
SECTION 308. Persons Deemed Owners.................................. 25
SECTION 309. Cancellation........................................... 25
SECTION 310. Computation of Interest................................ 26
SECTION 311. Payment to Be in Proper Currency....................... 26
ARTICLE FOUR Redemption of Securities.................................. 26
SECTION 401. Applicability of Article............................... 26
SECTION 402. Election to Redeem; Notice to Trustee.................. 26
SECTION 403. Selection of Securities to Be Redeemed................. 27
SECTION 404. Notice of Redemption................................... 27
SECTION 405. Securities Payable on Redemption Date.................. 28
SECTION 406. Securities Redeemed in Part............................ 29
ARTICLE FIVE Sinking Funds............................................. 29
SECTION 501. Applicability of Article............................... 29
SECTION 502. Satisfaction of Sinking Fund Payments with
Securities............................................. 29
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SECTION 503. Redemption of Securities for Sinking Fund.............. 30
ARTICLE SIX Covenants................................................. 30
SECTION 601. Payment of Principal, Premium and Interest............. 30
SECTION 602. Maintenance of Office or Agency........................ 30
SECTION 603. Money for Securities Payments to Be Held in Trust...... 31
SECTION 604. Corporate Existence.................................... 32
SECTION 605. Annual Officer's Certificate........................... 33
SECTION 606. Waiver of Certain Covenants............................ 33
ARTICLE SEVEN Satisfaction and Discharge................................ 33
SECTION 701. Satisfaction and Discharge of Securities............... 33
SECTION 702. Satisfaction and Discharge of Indenture................ 35
SECTION 703. Application of Trust Money............................. 36
ARTICLE EIGHT Events of Default; Remedies............................... 37
SECTION 801. Events of Default...................................... 37
SECTION 802. Acceleration of Maturity; Rescission and Annulment..... 38
SECTION 803. Collection of Indebtedness and Suits for
Enforcement by Trustee................................. 39
SECTION 804. Trustee May File Proofs of Claim....................... 39
SECTION 805. Trustee May Enforce Claims Without Possession of
Securities............................................. 40
SECTION 806. Application of Money Collected......................... 40
SECTION 807. Limitation on Suits.................................... 41
SECTION 808. Unconditional Right of Holders to Receive Principal,
Premium and Interest................................... 41
SECTION 809. Restoration of Rights and Remedies..................... 42
SECTION 810. Rights and Remedies Cumulative......................... 42
SECTION 811. Delay or Omission Not Waiver........................... 42
SECTION 812. Control by Holders of Securities....................... 42
SECTION 813. Waiver of Past Defaults................................ 43
SECTION 814. Undertaking for Costs.................................. 43
SECTION 815. Waiver of Usury, Stay or Extension Laws................ 43
ARTICLE NINE The Trustee............................................... 44
SECTION 901. Certain Duties and Responsibilities.................... 44
SECTION 902. Notice of Defaults..................................... 45
SECTION 903. Certain Rights of Trustee.............................. 45
SECTION 904. Not Responsible for Recitals or Issuance of
Securities............................................. 46
SECTION 905. May Hold Securities.................................... 46
SECTION 906. Money Held in Trust.................................... 46
SECTION 907. Compensation and Reimbursement......................... 47
SECTION 908. Disqualification; Conflicting Interests................ 47
SECTION 909. Corporate Trustee Required; Eligibility................ 47
SECTION 910. Resignation and Removal; Appointment of Successor...... 48
SECTION 911. Acceptance of Appointment by Successor................. 50
SECTION 912. Merger, Conversion, Consolidation or Succession to
Business............................................... 51
SECTION 913. Preferential Collection of Claims Against Company...... 51
SECTION 914. Appointment of Authenticating Agent.................... 51
SECTION 915. Co-trustee and Separate Trustees....................... 53
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ARTICLE TEN Holders' Lists and Reports by Trustee, Company and Guarantor... 54
SECTION 1001. Lists of Holders...................................... 54
SECTION 1002. Reports by Trustee, Company and Guarantor............. 54
ARTICLE ELEVEN Consolidation, Merger, Conveyance, or Other Transfer...... 55
SECTION 1101. Company or Guarantor May Consolidate, Etc.,
Only on Certain Terms................................. 55
SECTION 1102. Successor Person Substituted.......................... 55
SECTION 1103. Merger into Company................................... 56
ARTICLE TWELVE Supplemental Indentures................................... 56
SECTION 1201. Supplemental Indentures Without Consent of Holders.... 56
SECTION 1202. Supplemental Indentures With Consent of Holders....... 58
SECTION 1203. Execution of Supplemental Indentures.................. 59
SECTION 1204. Effect of Supplemental Indentures..................... 59
SECTION 1205. Conformity With Trust Indenture Act................... 59
SECTION 1206. Reference in Securities to Supplemental Indentures.... 59
SECTION 1207. Modification Without Supplemental Indenture........... 60
ARTICLE THIRTEEN Meetings of Holders; Action Without Meeting............... 60
SECTION 1301. Purposes for Which Meetings May Be Called............. 60
SECTION 1302. Call, Notice and Place of Meetings.................... 60
SECTION 1303. Persons Entitled to Vote at Meetings.................. 61
SECTION 1304. Quorum; Action........................................ 61
SECTION 1305. Attendance at Meetings; Determination of Voting
Rights; Conduct and Adjournment of Meetings........... 62
SECTION 1306. Counting Votes and Recording Action of Meetings....... 63
SECTION 1307. Action Without Meeting................................ 63
ARTICLE FOURTEEN Guarantee................................................. 63
SECTION 1401. Guarantee............................................. 63
SECTION 1402. Execution and Delivery of Guarantee................... 65
ARTICLE FIFTEEN Immunity of Incorporators, Stockholders, Officers and
Directors............................................................ 65
SECTION 1501. Liability Solely Corporate............................ 65
Testimonium................................................................ 67
Signatures and Seals....................................................... 67
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PP&L CAPITAL FUNDING, INC.
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of November 1, 1997
Trust Indenture Act Section Indenture Section
ss.310 (a)(1)............................. 909
(a)(2)............................. 909
(a)(3)............................. 915
(a)(4)............................. Not Applicable
(b)................................ 908
910
ss.311 (a)................................ 913
(b)................................ 913
(c)................................ Not Applicable
ss.312 (a)................................ 1001
(b)................................ 1001
(c)................................ 1001
ss.313 (a)................................ 1002
(b)(1)............................. Not Applicable
(b)(2)............................. 1002
(c)................................ 1002
(d)................................ 1002
ss.314 (a)................................ 1002
(a)(4)............................. 605
(b)................................ Not Applicable
(c)(1)............................. 102
(c)(2)............................. 102
(c)(3)............................. Not Applicable
(d)................................ Not Applicable
(e)................................ 102
ss.315 (a)................................ 901(a)
(b)................................ 902
(c)................................ 901(b)
(d)................................ 901(c)
(d)(1)............................. 901(a)(1), 901(c)(1)
(d)(2)............................. 901(c)(2)
(d)(3)............................. 901(c)(3)
(e)................................ 814
ss.316 (a)................................ 812
813
(a)(1)(A).......................... 802
812
(a)(1)(B).......................... 813
(a)(2)............................. Not Applicable
(b)................................ 808
ss.317 (a)(1)............................. 803
(a)(2)............................. 804
(b)................................ 603
ss.318 (a)................................ 107
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INDENTURE, dated as of November 1, 1997 among PP&L CAPITAL
FUNDING, INC., a corporation duly organized and existing under the
laws of the State of Delaware (herein called the "Company"), having
its principal office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, PP&L RESOURCES, INC., a corporation duly organized
and existing under the laws of the Commonwealth of Pennsylvania
(herein called the "Guarantor"), having its principal office at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and THE CHASE
MANHATTAN BANK, a New York banking corporation, having its principal
corporate trust office at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, as Trustee (herein called the "Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of its
unsecured debentures, notes or other evidences of indebtedness (herein
called the "Securities"), to be issued in one or more series as
contemplated herein, with Guarantees endorsed thereon; and all acts
necessary to make this Indenture a valid agreement of the Company, in
accordance with its terms, have been performed.
RECITAL OF THE GUARANTOR
The Guarantor has duly authorized the execution and delivery
of this Indenture to provide for the Guarantee of the Securities
provided for herein; and all acts necessary to make this Indenture a
valid agreement of the Guarantor, in accordance with its terms, have
been performed.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the
Securities or of series thereof (except as otherwise contemplated
herein), as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as
well as the singular;
(b) all terms used herein which are defined in the
Trust Indenture Act, either directly or by reference
therein, have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with
generally accepted accounting principles in the United
States of America, and, except as otherwise herein expressly
provided, the term "generally accepted accounting
principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as
are generally accepted in the United States of America at
the date of such computation;
(d) any reference to an "Article" or a "Section" refers
to an Article or a Section, as the case may be, of this
Indenture; and
(e) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
Certain terms, used principally in Article Nine, are defined
in that Article.
"ACT", when used with respect to any Holder of a Security,
has the meaning specified in Section 104.
"AFFILIATE" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes
of this definition, "CONTROL" when used with respect to any specified
Person means the power to direct generally the management and policies
of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms
"CONTROLLING" and "CONTROLLED" have meanings correlative to the
foregoing.
"AUTHENTICATING AGENT" means any Person or Persons
authorized by the Trustee to act on behalf of the Trustee to
authenticate the Securities of one or more series.
"AUTHORIZED OFFICER" means the Chairman of the Board, the
President, any Vice President, the Treasurer, or any other Person duly
authorized by the Company or the Guarantor, as the case requires, to
act in respect of matters relating to this Indenture.
"BOARD OF DIRECTORS" means either the board of directors of
the Company or the Guarantor, as the case requires, or any committee
of that board duly authorized to act in respect of matters relating to
this Indenture (including, in the case of the Guarantor, the finance
committee of the board of directors of the Guarantor).
"BOARD RESOLUTION" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company or the
Guarantor, as the case requires, to have been duly adopted by the
Board of Directors of the Company or the Guarantor, as the case
requires, and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"BUSINESS DAY", when used with respect to a Place of Payment
or any other particular location specified in the Securities or this
Indenture, means any day, other than a Saturday or Sunday, which is
not a day on which banking institutions or trust companies in such
Place of Payment or other location are generally authorized or
required by law, regulation or executive order to remain closed,
except as may be otherwise specified as contemplated by Section 301.
"COMMISSION" means the Securities and Exchange Commission,
as from time to time constituted, created under the Exchange Act, or,
if at any time after the date of execution and delivery of this
Indenture such Commission is not existing and performing the duties
now assigned to it under the Trust Indenture Act, then the body, if
any, performing such duties at such time.
"COMPANY" means the Person named as the "Company" in the
first paragraph of this Indenture until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Company" shall mean such successor Person.
"COMPANY ORDER" or "COMPANY REQUEST" mean, respectively, a
written order or request, as the case may be, signed in the name of
the Company by an Authorized Officer and delivered to the Trustee.
"CORPORATE TRUST OFFICE" means the office of the Trustee at
which at any particular time its corporate trust business shall be
principally administered, which office at the date of execution of
this Indenture is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇.
"CORPORATION" means a corporation, association, company,
joint stock company or business trust.
"DEFAULTED INTEREST" has the meaning specified in Section
307.
"DISCOUNT SECURITY" means any Security which provides for an
amount less than the principal amount thereof to be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to
Section 802.
"DOLLAR" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States of America as at the time
shall be legal tender for the payment of public and private debts.
"ELIGIBLE OBLIGATIONS" means:
(a) with respect to Securities denominated in Dollars,
Government Obligations; or
(b) with respect to Securities denominated in a
currency other than Dollars or in a composite currency, such
other obligations or instruments as shall be specified with
respect to such Securities, as contemplated by Section 301.
"EVENT OF DEFAULT" has the meaning specified in Section 801.
"EXCHANGE ACT" means the Securities Exchange Act of 1934 and
the rules and regulations promulgated thereunder, as amended from time
to time.
"GOVERNMENT OBLIGATIONS" means securities which are (a) (i)
direct obligations of the United States where the payment or payments
thereunder are supported by the full faith and credit of the United
States or (ii) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States where the
timely payment or payments thereunder are unconditionally guaranteed
as a full faith and credit obligation by the United States or (b)
depository receipts issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any such Government
Obligation or a specific payment of interest on or principal of or
other amount with respect to any such Government Obligation held by
such custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder
of such depository receipt from any amount received by the custodian
in respect of the Government Obligation or the specific payment of
interest on or principal of or other amount with respect to the
Government Obligation evidenced by such depository receipt.
"GUARANTEE" means any guarantee of the Guarantor endorsed on
a Security authenticated and delivered pursuant to this Indenture and
shall include the guarantee set forth in Section 1401.
"GUARANTOR" means the Person named as "Guarantor" in the
first paragraph of this Indenture until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Guarantor" shall include such successor Person.
"GUARANTOR ORDER" or "GUARANTOR REQUEST" mean, respectively,
a written order or request, as the case may be, signed in the name of
the Guarantor by an Authorized Officer of the Guarantor and delivered
to the Trustee.
"HOLDER" means a Person in whose name a Security is
registered in the Security Register.
"INDENTURE" means this instrument as originally executed and
as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, including, for all purposes of this instrument and
any such supplemental indenture, the provisions of the Trust Indenture
Act that are deemed to be a part of and govern this Indenture and any
such supplemental indenture, respectively. The term "Indenture" shall
also include the terms of particular series of Securities established
as contemplated by Section 301.
"INTEREST", when used with respect to a Discount Security
which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"INTEREST PAYMENT DATE", when used with respect to any
Security, means the Stated Maturity of an installment of interest on
such Security.
"MATURITY", when used with respect to any Security, means
the date on which the principal of such Security or an installment of
principal becomes due and payable as provided in such Security or in
this Indenture, whether at the Stated Maturity, by declaration of
acceleration, upon call for redemption or otherwise.
"NOTICE OF DEFAULT" means a written notice of the kind
specified in Section 801(c).
"OFFICER'S CERTIFICATE" means a certificate signed by an
Authorized Officer of the Company or the Guarantor, as the case
requires, and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who
may be counsel for the Company or the Guarantor, and who shall be
acceptable to the Trustee.
"OUTSTANDING", when used with respect to Securities, means,
as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(a) Securities theretofore canceled or delivered to the
Trustee for cancellation;
(b) Securities deemed to have been paid for all
purposes of this Indenture in accordance with Section 701
(whether or not the Company's indebtedness in respect
thereof shall be satisfied and discharged for any other
purpose); and
(c) Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of
which there shall have been presented to the Trustee proof
satisfactory to it and the Company that such Securities are
held by a bona fide purchaser in whose hands such Securities
are valid obligations of the Company;
provided, however, that in determining whether or not the Holders of
the requisite principal amount of the Securities Outstanding under
this Indenture, or the Outstanding Securities of any series or
Tranche, have given any request, demand, authorization, direction,
notice, consent or waiver hereunder or whether or not a quorum is
present at a meeting of Holders of Securities,
(x) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company
or of such other obligor (unless the Company, such Affiliate
or such obligor owns all Securities Outstanding under this
Indenture, or all Outstanding Securities of each such series
and each such Tranche, as the case may be, determined
without regard to this clause (x)) shall be disregarded and
deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice,
consent or waiver or upon any such determination as to the
presence of a quorum, only Securities which the Trustee
knows to be so owned shall be so disregarded; provided,
however, that Securities so owned which have been pledged in
good faith may be regarded as Outstanding if it is
established to the reasonable satisfaction of the Trustee
that the pledgee, and not the Company, or any such other
obligor or Affiliate of either thereof, has the right so to
act with respect to such Securities and that the pledgee is
not the Company or any other obligor upon the Securities or
any Affiliate of the Company or of such other obligor;
(y) the principal amount of a Discount Security that
shall be deemed to be Outstanding for such purposes shall be
the amount of the principal thereof that would be due and
payable as of the date of such determination upon a
declaration of acceleration of the Maturity thereof pursuant
to Section 802; and
(z) the principal amount of any Security which is
denominated in a currency other than Dollars or in a
composite currency that shall be deemed to be Outstanding
for such purposes shall be the amount of Dollars which could
have been purchased by the principal amount (or, in the
case of a Discount Security, the Dollar equivalent on the
date determined as set forth below of the amount determined
as provided in (y) above) of such currency or composite
currency evidenced by such Security, in each such case
certified to the Trustee in an Officer's Certificate, based
(i) on the average of the mean of the buying and selling
spot rates quoted by three banks which are members of the
New York Clearing House Association selected by the Company
in effect at 11:00 A.M. (New York time) in The City of New
York on the fifth Business Day preceding any such
determination or (ii) if on such fifth Business Day it shall
not be possible or practicable to obtain such quotations
from such three banks, on such other quotations or
alternative methods of determination which shall be as
consistent as practicable with the method set forth in (i)
above;
provided, further, that in the case of any Security the principal of
which is payable from time to time without presentment or surrender,
the principal amount of such Security that shall be deemed to be
Outstanding at any time for all purposes of this Indenture shall be
the original principal amount thereof less the aggregate amount of
principal thereof theretofore paid.
"PAYING AGENT" means any Person, including the Company or
the Guarantor, authorized by the Company to pay the principal of, and
premium, if any, or interest, if any, on any Securities on behalf of
the Company or the Guarantor.
"PERIODIC OFFERING" means an offering of Securities of a
series from time to time any or all of the specific terms of which
Securities, including without limitation the rate or rates of
interest, if any, thereon, the Stated Maturity or Maturities thereof
and the redemption provisions, if any, with respect thereto, are to be
determined by the Company or its agents from time to time subsequent
to the initial request for the authentication and delivery of such
Securities by the Trustee, as contemplated in Section 301 and clause
(b) of Section 303.
"PERSON" means any individual, corporation, partnership,
limited liability company, joint venture, trust or unincorporated
organization or any government or any political subdivision,
instrumentality or agency thereof.
"PLACE OF PAYMENT", when used with respect to the Securities
of any series, or Tranche thereof, means the place or places,
specified as contemplated by Section 301, at which, subject to Section
602, principal of and premium, if any, and interest, if any, on the
Securities of such series or Tranche are payable.
"PREDECESSOR SECURITY" of any particular Security means
every previous Security evidencing all or a portion of the same debt
as that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under
Section 306 in exchange for or in lieu of a mutilated, destroyed, lost
or stolen Security shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Security.
"REDEMPTION DATE", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant
to this Indenture.
"REDEMPTION PRICE", when used with respect to any Security
to be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture.
"REGULAR RECORD DATE" for the interest payable on any
Interest Payment Date on the Securities of any series means the date
specified for that purpose as contemplated by Section 301.
"REQUIRED CURRENCY" has the meaning specified in Section
311.
"RESPONSIBLE OFFICER", when used with respect to the
Trustee, means the chairman or any vice-chairman of the board of
directors, the chairman or any vice-chairman of the executive commit-
tee of the board of directors, the chairman of the trust committee,
the president, any vice president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any senior trust officer, any trust officer or
assistant trust officer, the controller or any assistant controller or
any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any
other officer of the Trustee to whom such matter is referred because
of his knowledge of and familiarity with the particular subject.
"SECURITIES" has the meaning stated in the first recital of
this Indenture and more particularly means any securities
authenticated and delivered under this Indenture.
"SECURITIES ACT" means the Securities Act of 1933, and the
rules and regulations promulgated thereunder, as amended from time to
time.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the
respective meanings specified in Section 305.
"SPECIAL RECORD DATE" for the payment of any Defaulted
Interest on the Securities of any series means a date fixed by the
Trustee pursuant to Section 307.
"STATED INTEREST RATE" means a rate (whether fixed or
variable) at which an obligation by its terms is stated to bear simple
interest. Any calculation or other determination to be made under this
Indenture by reference to the Stated Interest Rate on a Security shall
be made without regard to the effective interest cost to the Company
of such Security and without regard to the Stated Interest Rate on, or
the effective cost to the Company of, any other indebtedness the
Company's obligations in respect of which are evidenced or secured in
whole or in part by such Security.
"STATED MATURITY", when used with respect to any Security or
any obligation or any installment of principal thereof or interest
thereon, means the date on which the principal of such obligation or
such installment of principal or interest is stated to be due and
payable (without regard to any provisions for redemption, prepayment,
acceleration, purchase or extension).
"TRANCHE" means a group of Securities which (a) are of the
same series and (b) have identical terms except as to principal amount
and/or date of issuance.
"TRUSTEE" means the Person named as the "Trustee" in the
first paragraph of this Indenture until a successor Trustee shall have
become such with respect to one or more series of Securities pursuant
to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall
mean the Trustee with respect to Securities of that series.
"TRUST INDENTURE ACT" means, as of any time, the Trust
Indenture Act of 1939 as in force at such time.
"UNITED STATES" means the United States of America, its
territories, its possessions and other areas subject to its
jurisdiction.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided in this Indenture,
upon any application or request by the Company or the Guarantor to the
Trustee to take any action under any provision of this Indenture, the
Company and the Guarantor shall each furnish to the Trustee an
Officer's Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have
been complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically
required by any provision of this Indenture relating to such
particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such
certificate or opinion has read such covenant or condition
and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are
based;
(c) a statement that, in the opinion of each such
individual, he has made such examination or investigation as
is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been
complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
(a) Any Officer's Certificate may be based (without further
examination or investigation), insofar as it relates to or is
dependent upon legal matters, upon an opinion of, or representations
by, counsel, unless, in any case, such officer has actual knowledge
that the certificate or opinion or representations with respect to the
matters upon which such Officer's Certificate may be based as
aforesaid are erroneous.
Any Opinion of Counsel may be based (without further
examination or investigation), insofar as it relates to or is
dependent upon factual matters, information with respect to which is
in the possession of the Company or the Guarantor, upon a certificate
of, or representations by, an officer or officers of the Company or
the Guarantor, as the case may be, unless such counsel has actual
knowledge that the certificate or opinion or representations with
respect to the matters upon which his opinion may be based as
aforesaid are erroneous. In addition, any Opinion of Counsel may be
based (without further examination or investigation), insofar as it
relates to or is dependent upon matters covered in an Opinion of
Counsel rendered by other counsel, upon such other Opinion of Counsel,
unless such counsel has actual knowledge that the Opinion of Counsel
rendered by such other counsel with respect to the matters upon which
his Opinion of Counsel may be based as aforesaid are erroneous. If, in
order to render any Opinion of Counsel provided for herein, the signer
thereof shall deem it necessary that additional facts or matters be
stated in any Officer's Certificate provided for herein, then such
certificate may state all such additional facts or matters as the
signer of such Opinion of Counsel may request.
(b) In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is
not necessary that all such matters be certified by, or covered by the
opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or give
an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give
an opinion as to such matters in one or several documents. Where (i)
any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions
or other instruments under this Indenture, or (ii) two or more Persons
are each required to make, give or execute any such application,
request, consent, certificate, statement, opinion or other instrument,
any such applications, requests, consents, certificates, statements,
opinions or other instruments may, but need not, be consolidated and
form one instrument.
(c) Whenever, subsequent to the receipt by the Trustee of
any Board Resolution, Officer's Certificate, Opinion of Counsel or
other document or instrument, a clerical, typographical or other
inadvertent or unintentional error or omission shall be discovered
therein, a new document or instrument may be substituted therefor in
corrected form with the same force and effect as if originally filed
in the corrected form and, irrespective of the date or dates of the
actual execution and/or delivery thereof, such substitute document or
instrument shall be deemed to have been executed and/or delivered as
of the date or dates required with respect to the document or
instrument for which it is substituted. Anything in this Indenture to
the contrary notwithstanding, if any such corrective document or
instrument indicates that action has been taken by or at the request
of the Company which could not have been taken had the original
document or instrument not contained such error or omission, the
action so taken shall not be invalidated or otherwise rendered
ineffective but shall be and remain in full force and effect, except
to the extent that such action was a result of willful misconduct or
bad faith. Without limiting the generality of the foregoing, any
Securities issued under the authority of such defective document or
instrument shall nevertheless be the valid obligations of the Company
entitled to the benefits of this Indenture equally and ratably with
all other Outstanding Securities, except as aforesaid.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, election, waiver or other action provided by this Indenture
to be made, given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by
such Holders in person or by an agent duly appointed in writing or,
alternatively, may be embodied in and evidenced by the record of
Holders voting in favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders duly called and held
in accordance with the provisions of Article Thirteen, or a
combination of such instruments and any such record. Except as herein
otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the
Trustee and, where it is hereby expressly required, to the Company and
the Guarantor. Such instrument or instruments and any such record (and
the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such
instrument or instruments and so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such
agent, or of the holding by any Person of a Security, shall be
sufficient for any purpose of this Indenture and (subject to Section
901) conclusive in favor of the Trustee, the Company and the
Guarantor, if made in the manner provided in this Section. The record
of any meeting of Holders shall be proved in the manner provided in
Section 1306.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness
of such execution or by a certificate of a notary public or other
officer authorized by law to take acknowledgments of deeds, certifying
that the individual signing such instrument or writing acknowledged to
him the execution thereof or may be proved in any other manner which
the Trustee and the Company deem sufficient. Where such execution is
by a signer acting in a capacity other than his individual capacity,
such certificate or affidavit shall also constitute sufficient proof
of his authority.
(c) The ownership, principal amount (except as otherwise
contemplated in clause (y) of the first proviso to the definition of
Outstanding) and serial numbers of Securities held by any Person, and
the date of holding the same, shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act of a Holder shall bind every
future Holder of the same Security and the Holder of every Security
issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee, the Company or the Guarantor in
reliance thereon, whether or not notation of such action is made upon
such Security.
(e) Until such time as written instruments shall have been
delivered to the Trustee with respect to the requisite percentage of
principal amount of Securities for the action contemplated by such
instruments, any such instrument executed and delivered by or on
behalf of a Holder may be revoked with respect to any or all of such
Securities by written notice by such Holder or any subsequent Holder,
proven in the manner in which such instrument was proven.
(f) Securities of any series, or any Tranche thereof,
authenticated and delivered after any Act of Holders may, and shall if
required by the Trustee, bear a notation in form approved by the
Trustee as to any action taken by such Act of Holders. If the Company
shall so determine, new Securities of any series, or any Tranche
thereof, so modified as to conform, in the opinion of the Trustee and
the Company, to such action may be prepared and executed by the
Company and the Guarantor and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series or
Tranche.
(g) Each of the Company and the Guarantor may, at its
option, by Company Order or Guarantor Order, as appropriate, fix in
advance a record date for the determination of Holders entitled to
give any request, demand, authorization, direction, notice, consent,
waiver or other Act solicited by the Company, but neither the Company
nor the Guarantor shall have any obligation to do so; provided,
however, that neither the Company nor the Guarantor may fix a record
date for the giving or making of any notice, declaration, request or
direction referred to in the next sentence. In addition, the Trustee
may, at its option, fix in advance a record date for the determination
of Holders entitled to join in the giving or making of any Notice of
Default, any declaration of acceleration referred to in Section 802,
any request to institute proceedings referred to in Section 807 or any
direction referred to in Section 812. If any such record date is
fixed, such request, demand, authorization, direction, notice,
consent, waiver or other Act, or such notice, declaration, request or
direction, may be given before or after such record date, but only the
Holders of record at the close of business on the record date shall be
deemed to be Holders for the purposes of determining (i) whether
Holders of the requisite proportion of the Outstanding Securities have
authorized or agreed or consented to such Act (and for that purpose
the Outstanding Securities shall be computed as of the record date)
and/or (ii) which Holders may revoke any such Act (notwithstanding
subsection (e) of this Section ); and any such Act, given as
aforesaid, shall be effective whether or not the Holders which
authorized or agreed or consented to such Act remain Holders after
such record date and whether or not the Securities held by such
Holders remain Outstanding after such record date.
SECTION 105. NOTICES, ETC. TO TRUSTEE, COMPANY OR GUARANTOR.
Any request, demand, authorization, direction, notice,
consent, election, waiver or Act of Holders or other document provided
or permitted by this Indenture to be made upon, given or furnished
to, or filed with, the Trustee by any Holder or by the Company or the
Guarantor, or the Company or the Guarantor by the Trustee or by any
Holder, shall be sufficient for every purpose hereunder (unless
otherwise expressly provided herein) if in writing and delivered
personally to an officer or other responsible employee of the
addressee, or transmitted by facsimile transmission, telex or other
direct written electronic means to such telephone number or other
electronic communications address set forth for such party below or
such other address as the parties hereto shall from time to time
designate, or transmitted by registered mail, charges prepaid, to the
applicable address set forth for such party below or to such other
address as any party hereto may from time to time designate:
If to the Trustee, to:
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trustee Administration Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Company, to:
PP&L Capital Funding, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
PP&L Resources, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Treasurer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Guarantor, to:
PP&L Resources, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Treasurer
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Any communication contemplated herein shall be deemed to
have been made, given, furnished and filed if personally delivered, on
the date of delivery, if transmitted by facsimile transmission, telex
or other direct written electronic means, on the date of transmission,
and if transmitted by registered mail, on the date of receipt.
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided herein, where this
Indenture provides for notice to Holders of any event, such notice
shall be sufficiently given, and shall be deemed given, to Holders if
in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at the address of such Holder as it appears in
the Security Register, not later than the latest date, and not earlier
than the earliest date, prescribed for the giving of such Notice.
In case by reason of the suspension of regular mail service
or by reason of any other cause it shall be impracticable to give such
notice to Holders by mail, then such notification as shall be made
with the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor
any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders.
Any notice required by this Indenture may be waived in
writing by the Person entitled to receive such notice, either before
or after the event otherwise to be specified therein, and such waiver
shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance
upon such waiver.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision of this Indenture limits, qualifies or
conflicts with another provision hereof which is required or deemed to
be included in this Indenture by, or is otherwise governed by, any
provision of the Trust Indenture Act, such other provision shall
control; and if any provision hereof otherwise conflicts with the
Trust Indenture Act, the Trust Indenture Act shall control.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings in this Indenture and the
Table of Contents are for convenience only and shall not affect the
construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the
Company or the Guarantor shall bind its successors and assigns,
whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or the Securities or
the Guarantees shall be held to be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture, the Securities or the Guarantees,
express or implied, shall give to any Person, other than the parties
hereto, their successors hereunder and the Holders, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture, the Securities and the Guarantees shall be
governed by and construed in accordance with the law of the State of
New York (including without limitation Section 5-1401 of the New York
General Obligations Law or any successor to such statute), except to
the extent that the Trust Indenture Act shall be applicable.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Security shall not be a Business Day at any
Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Securities other than a provision in Securities of
any series, or any Tranche thereof, or in the indenture supplemental
hereto, Board Resolution or Officer's Certificate which establishes
the terms of the Securities of such series or Tranche, which
specifically states that such provision shall apply in lieu of this
Section) payment of interest or principal and premium, if any, need
not be made at such Place of Payment on such date, but may be made on
the next succeeding Business Day at such Place of Payment with the
same force and effect as if made on the Interest Payment Date,
Redemption Date, or Stated Maturity, and, if such payment is made or
duly provided for on such Business Day, no interest shall accrue on
the amount so payable for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be,
to such Business Day.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The definitive Securities of each series and the Guarantees
to be endorsed thereon as contemplated by Article Fourteen shall be in
substantially the form or forms thereof established in the indenture
supplemental hereto establishing such series or in a Board Resolution
establishing such series, or in an Officer's Certificate pursuant to
such a supplemental indenture or Board Resolution, in each case with
such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently
herewith, be determined by the officers executing such Securities or
Guarantees endorsed thereon, as the case may be, as evidenced by their
execution thereof. If the form or forms of Securities of any series or
Guarantees endorsed thereon are established in a Board Resolution or
in an Officer's Certificate pursuant to a Board Resolution, such Board
Resolution and Officer's Certificate, if any, shall be delivered to
the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of
such Securities.
Unless otherwise specified as contemplated by Section 301,
the Securities of each series shall be issuable in registered form
without coupons. The definitive Securities and Guarantees endorsed
thereon shall be produced in such manner as shall be determined by the
officers executing such Securities or Guarantees, as evidenced by
their execution thereof.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in
substantially the form set forth below:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By: _____________________________
Authorized Officer
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. Subject
to the last paragraph of this Section, prior to the authentication and
delivery of Securities of any series there shall be established by
specification in a supplemental indenture or in a Board Resolution of
the Company or in an Officer's Certificate of the Company (which need
not, comply with Section 102) pursuant to a supplemental indenture or
a Board Resolution:
(a) the title of the Securities of such series (which
shall distinguish the Securities of such series from
Securities of all other series);
(b) any limit upon the aggregate principal amount of
the Securities of such series which may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of
such series pursuant to Section 304, 305, 306, 406 or 1206
and except for any Securities which, pursuant to Section
303, are deemed never to have been authenticated and
delivered hereunder);
(c) the Person or Persons (without specific
identification) to whom any interest on Securities of such
series, or any Tranche thereof, shall be payable, if other
than the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest;
(d) the date or dates on which the principal of the
Securities of such series or any Tranche thereof, is payable
or any formulary or other method or other means by which
such date or dates shall be determined, by reference to an
index or other fact or event ascertainable outside of this
Indenture or otherwise (without regard to any provisions for
redemption, prepayment, acceleration, purchase or
extension);
(e) the rate or rates at which the Securities of such
series, or any Tranche thereof, shall bear interest, if any
(including the rate or rates at which overdue principal
shall bear interest after Maturity if different from the
rate or rates at which such Securities shall bear interest
prior to Maturity, and, if applicable, the rate or rates at
which overdue premium or interest shall bear interest, if
any), or any formulary or other method or other means by
which such rate or rates shall be determined by reference to
an index or other fact or event ascertainable outside of
this Indenture or otherwise, the date or dates from which
such interest shall accrue; the Interest Payment Dates and
the Regular Record Dates, if any, for the interest payable
on such Securities on any Interest Payment Date; and the
basis of computation of interest, if other than as provided
in Section 310;
(f) the place or places at which or methods (if other
than as provided elsewhere in this Indenture) by which (i)
the principal of and premium, if any, and interest, if any,
on Securities of such series, or any Tranche thereof, shall
be payable, (ii) registration of transfer of Securities of
such series, or any Tranche thereof, may be effected, (iii)
exchanges of Securities of such series, or any Tranche
thereof, may be effected and (iv) notices and demands to or
upon the Company in respect of the Securities of such
series, or any Tranche thereof, and this Indenture may be
served; the Security Registrar and any Paying Agent or
Agents for such series or Tranche; and if such is the case,
that the principal of such Securities shall be payable
without presentment or surrender thereof;
(g) the period or periods within which, or the date or
dates on which, the price or prices at which and the terms
and conditions upon which the Securities of such series, or
any Tranche thereof, may be redeemed, in whole or in part,
at the option of the Company and any restrictions on such
redemptions;
(h) the obligation, if any, of the Company to redeem or
purchase or repay the Securities of such series, or any
Tranche thereof, pursuant to any sinking fund or other
mandatory redemption provisions or at the option of a Holder
thereof and the period or periods within which or the date
or dates on which, the price or prices at which and the
terms and conditions upon which such Securities shall be
redeemed or purchased or repaid, in whole or in part,
pursuant to such obligation and applicable exceptions to the
requirements of Section 404 in the case of mandatory
redemption or redemption or repayment at the option of the
Holder;
(i) the denominations in which Securities of such
series, or any Tranche thereof, shall be issuable if other
than denominations of $1,000 and any integral multiple
thereof;
(j) if the principal of or premium, if any, or
interest, if any, on the Securities of such series, or any
Tranche thereof, are to be payable, at the election of the
Company or a Holder thereof, in a coin or currency other
than that in which the Securities are stated to be payable,
the period or periods within which, and the terms and
conditions upon which, such election may be made and the
manner in which the amount of such coin or currency payable
is to be determined;
(k) the currency or currencies, including composite
currencies, in which payment of the principal of and
premium, if any, and interest, if any, on the Securities of
such series, or any Tranche thereof, shall be payable (if
other than Dollars) and the manner in which the equivalent
of the principal amount thereof in Dollars is to be
determined for any purpose, including for the purpose of
determining the principal amount deemed to be Outstanding at
any time;
(l) if the principal of or premium, if any, or interest
on the Securities of such series, or any Tranche thereof,
are to be payable, or are to be payable at the election of
the Company or a Holder thereof, in securities or other
property, the type and amount of such securities or other
property, or the formulary or other method or other means by
which such amount shall be determined, and the period or
periods within which, and the terms and conditions upon
which, any such election may be made;
(m) if the amount payable in respect of principal of or
premium, if any, or interest, if any, on the Securities of
such series, or any Tranche thereof, may be determined with
reference to an index or other fact or event ascertainable
outside this Indenture, the manner in which such amounts
shall be determined to the extent not established pursuant
to clause (e) of this paragraph;
(n) if other than the entire principal amount thereof,
the portion of the principal amount of Securities of such
series, or any Tranche thereof, which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant
to Section 802;
(o) any Events of Default, in addition to those
specified in Section 801, or any exceptions to those
specified in Section 801, with respect to the Securities of
such series, and any covenants of the Company or the
Guarantor for the benefit of the Holders of the Securities
of such series, or any Tranche thereof, in addition to those
set forth in Article Six, or any exceptions to those set
forth in Article Six;
(p) the terms, if any, pursuant to which the Securities
of such series, or any Tranche thereof, may be converted
into or exchanged for shares of capital stock or other
securities of the Company or any other Person;
(q) the obligations or instruments, if any, which shall
be considered to be Eligible Obligations in respect of the
Securities of such series, or any Tranche thereof,
denominated in a currency other than Dollars or in a
composite currency, and any provisions for satisfaction and
discharge of Securities of any series, in addition to those
set forth in Section 701, or any exceptions to those set
forth in Section 701;
(r) if the Securities of such series, or any Tranche
thereof, are to be issued in global form, (i) any
limitations on the rights of the Holder or Holders of such
Securities to transfer or exchange the same or to obtain the
registration of transfer thereof, (ii) any limitations on
the rights of the Holder or Holders thereof to obtain
certificates therefor in definitive form in lieu of global
form and (iii) any other matters incidental to such
Securities;
(s) if the Securities of such series, or any Tranche
thereof, are to be issuable as bearer securities, any and
all matters incidental thereto which are not specifically
addressed in a supplemental indenture as contemplated by
clause (g) of Section 1201;
(t) to the extent not established pursuant to clause
(r) of this paragraph, any limitations on the rights of the
Holders of the Securities of such Series, or any Tranche
thereof, to transfer or exchange such Securities or to
obtain the registration of transfer thereof; and if a
service charge will be made for the registration of transfer
or exchange of Securities of such series, or any Tranche
thereof, the amount or terms thereof;
(u) any exceptions to Section 113, or variation in the
definition of Business Day, with respect to the Securities
of such series, or any Tranche thereof;
(v) any terms of the Guarantees with respect to the
Securities of such series, or any Tranche thereof, in
addition to those set forth in Section 1401, or any
exceptions to those set forth in Section 1401; and
(w) any other terms of the Securities of such series,
or any Tranche thereof.
With respect to Securities of a series subject to a Periodic
Offering, the indenture supplemental hereto or the Board Resolution
which establishes such series, or the Officer's Certificate pursuant
to such supplemental indenture or Board Resolution, as the case may
be, may provide general terms or parameters for Securities of such
series and provide either that the specific terms of Securities of
such series, or any Tranche thereof, shall be specified in a Company
Order or that such terms shall be determined by the Company or its
agents in accordance with procedures specified in a Company Order as
contemplated in clause (b) of Section 303.
Unless otherwise provided with respect to a series of
Securities as contemplated in Section 301(b), the aggregate principal
amount of a series of Securities may be increased and additional
Securities of such series may be issued up to the maximum aggregate
principal amount authorized with respect to such series as increased.
SECTION 302. DENOMINATIONS.
Unless otherwise provided as contemplated by Section 301
with respect to any series of Securities, or any Tranche thereof, the
Securities of each series shall be issuable in denominations of $1,000
and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Unless otherwise provided as contemplated by Section 301
with respect to any series of Securities or any Tranche thereof, the
Securities shall be executed on behalf of the Company by an Authorized
Officer of the Company, and may have the corporate seal of the Company
affixed thereto or reproduced thereon attested by its Secretary, one
of its Assistant Secretaries or any other Authorized Officer. The
signature of any or all of these officers on the Securities may be
manual or facsimile.
A Security bearing the manual or facsimile signature of an
individual who was at the time of execution an Authorized Officer of
the Company shall bind the Company, notwithstanding that any such
individual has ceased to be an Authorized Officer prior to the
authentication and delivery of the Security or did not hold such
office at the date of such Security.
Unless otherwise provided as contemplated by Section 301,
with respect to any series of Securities or any Tranche thereof,
Guarantees to be endorsed on any Securities shall be executed and
delivered in accordance with the provisions of Section 1402.
The Trustee shall authenticate and deliver Securities of a
series, with the Guarantees endorsed thereon, for original issue, at
one time or from time to time in accordance with the Company Order
referred to below, upon receipt by the Trustee of:
(a) the instrument or instruments establishing the form or
forms and terms of the Securities of such series and the
Guarantees to be endorsed thereon, as provided in Sections 201
and 301;
(b) a Company Order requesting the authentication and
delivery of such Securities, with the Guarantees endorsed
thereon, and, to the extent that the terms of such Securities and
Guarantees shall not have been established in an indenture
supplemental hereto or in a Board Resolution, or in an Officer's
Certificate pursuant to a supplemental indenture or Board
Resolution, all as contemplated by Sections 201 and 301, either
(i) establishing such terms or (ii) in the case of Securities of
a series subject to a Periodic Offering, specifying procedures,
acceptable to the Trustee, by which such terms are to be
established (which procedures may provide, to the extent
acceptable to the Trustee, for authentication and delivery
pursuant to oral or electronic instructions from the Company or
any agent or agents thereof, which oral instructions are to be
promptly confirmed electronically or in writing), in either case
in accordance with the instrument or instruments delivered
pursuant to clause (a) above;
(c) A Guarantor Order approving the terms and delivery of
the Guarantees to be endorsed on such Securities as contemplated
by the Company Order delivered pursuant to clause (b) above;
(d) Securities of such series, each executed on behalf of
the Company by an Authorized Officer of the Company and having a
Guarantee endorsed thereon executed on behalf of the Guarantor by
an Authorized Officer of the Guarantor;
(e) an Opinion of Counsel to the effect that:
(i) (A) the forms of such Securities have been duly
authorized by the Company, (B) the forms of such Guarantees have
been duly authorized by the Guarantor, and (C) the forms of the
Securities and the Guarantees have been established in conformity
with the provisions of this Indenture;
(ii) (A) the terms of such Securities have been duly
authorized by the Company, (B) the terms of such Guarantees have
been duly authorized by the Guarantor and (C) the terms of the
Securities and the Guarantees have been established in conformity
with the provisions of this Indenture; and
(iii) such Securities and the Guarantees endorsed thereon,
when authenticated and delivered by the Trustee and issued and
delivered by the Company and the Guarantor in the manner and
subject to any conditions specified in such Opinion of Counsel,
will have been duly issued under this Indenture and will
constitute valid and legally binding obligations of the Company
and the Guarantor, respectively, entitled to the benefits
provided by this Indenture, and enforceable in accordance with
their terms, subject, as to enforcement, to laws relating to or
affecting generally the enforcement of creditors' rights,
including, without limitation, bankruptcy and insolvency laws and
to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity as at
law);
provided, however, that, with respect to Securities of a series
subject to a Periodic Offering, the Trustee shall be entitled to
receive such Opinion of Counsel only once at or prior to the time of
the first authentication and delivery of Securities of such series,
and the Guarantees endorsed thereon, and that in lieu of the opinions
described in clauses (ii) and (iii) above such Opinion of Counsel may,
alternatively, state, respectively,
(x) that, when the terms of such Securities and the
Guarantees to be endorsed thereon shall have been established
pursuant to a Company Order or Orders and, if applicable, a
Guarantor Order or Orders or pursuant to such procedures as may
be specified from time to time by a Company Order or Orders, and,
if applicable, a Guarantor Order or Orders all as contemplated by
and in accordance with the instrument or instruments delivered
pursuant to clause (a) above, such terms will have been duly
authorized by the Company and the Guarantor, respectively, and
will have been established in conformity with the provisions of
this Indenture; and
(y) that such Securities, and the Guarantees endorsed
thereon, when (1) executed by the Company or the Guarantor, as
the case may be, (2) authenticated and delivered by the Trustee
in accordance with this Indenture, (3) issued and delivered by
the Company and the Guarantor and (4) paid for, all as
contemplated by and in accordance with the aforesaid Company
Order or Orders and, if applicable, a Guarantor Order or Orders
or specified procedures, as the case may be, will have been duly
issued under this Indenture and will constitute valid and legally
binding obligations of the Company and the Guarantor,
respectively, entitled to the benefits provided by the Indenture,
and enforceable in accordance with their terms, subject, as to
enforcement, to laws relating to or affecting generally the
enforcement of creditors' rights, including, without limitation,
bankruptcy and insolvency laws and to general principles of
equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law).
With respect to Securities of a series subject to a Periodic
Offering, the Trustee may conclusively rely, as to the authorization
by the Company and the Guarantor of any of such Securities and
Guarantees, the forms and terms thereof and the legality, validity,
binding effect and enforceability thereof, upon the Opinion of Counsel
and other documents delivered pursuant to Sections 201 and 301 and
this Section, as applicable, at or prior to the time of the first
authentication of Securities of such series, with the Guarantees
endorsed thereon, unless and until such opinion or other documents
have been superseded or revoked or expire by their terms. In
connection with the authentication and delivery of Securities of a
series, with Guarantees endorsed thereon, pursuant to a Periodic
Offering, the Trustee shall be entitled to assume that the Company's
instructions to authenticate and deliver such Securities, and the
Guarantor's approval of the delivery of the Guarantees thereon, do not
violate any applicable law or any applicable rule, regulation or order
of any governmental agency or commission having jurisdiction over the
Company or the Guarantor.
If the forms or terms of the Securities of any series have
been established by or pursuant to a Board Resolution or an Officer's
Certificate as permitted by Sections 201 or 301, the Trustee shall not
be required to authenticate such Securities if the issuance of such
Securities pursuant to this Indenture will affect the Trustee's own
rights, duties or immunities under the Securities and this Indenture
or otherwise in a manner which is not reasonably acceptable to the
Trustee.
Except as otherwise specified as contemplated by Section 301
with respect to any series of securities, or any Tranche thereof, each
Security, and any Guarantee endorsed thereon, shall each be dated the
date of its authentication.
Except as otherwise specified as contemplated by Section 301
with respect to any series of Securities, or any Tranche thereof, no
Security or Guarantee endorsed thereon shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose
unless there appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee
or its agent by manual signature of an authorized officer thereof, and
such certificate upon any Security shall be conclusive evidence, and
the only evidence, that such Security or Guarantee endorsed thereon
has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture. Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered hereunder to the
Company, or any Person acting on its behalf, but shall never have been
issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309
together with a written statement (which need not comply with Section
102 and need not be accompanied by an Opinion of Counsel) stating that
such Security has never been issued and sold by the Company, for all
purposes of this Indenture such Security (including any Guarantee
endorsed thereon) shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits
hereof.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any
series, or any Tranche thereof, the Company may execute, and upon
Company Order and a Guarantor Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued, having Guarantees endorsed thereon,
with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities or Guarantees may
determine, as evidenced by their execution of such Securities or
Guarantees; provided, however, that temporary Securities need not
recite specific redemption, sinking fund, conversion or exchange
provisions.
If temporary Securities of any series or Tranche are issued,
the Company shall cause definitive Securities of such series or
Tranche to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series or Tranche, the
temporary Securities of such series or Tranche shall be exchangeable
for definitive Securities of such series or Tranche, with the
definitive Guarantees of the Guarantor endorsed thereon, upon
surrender of the temporary Securities of such series or Tranche at the
office or agency of the Company maintained pursuant to Section 602 in
a Place of Payment for such series or Tranche, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series or Tranche, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor definitive
Securities of the same series or Tranche, of authorized denominations
and of like tenor and aggregate principal amount, with the definitive
Guarantees of the Guarantor endorsed thereon.
Until exchanged in full as hereinabove provided, temporary
Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and
Tranche and of like tenor authenticated and delivered hereunder.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept in one of the offices or
agencies designated pursuant to Section 602, with respect to the
Securities of each series or any Tranche thereof, a register (the
"Security Register") in which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for the registration of
Securities of such series or Tranche and the registration of transfer
thereof. The Company shall designate one Person to maintain the
Security Register for the Securities of each series, and such Person
is referred to herein, with respect to such series, as the "Security
Registrar." Anything herein to the contrary notwithstanding, the
Company may designate one or more of its offices or an office of any
Affiliate (including the Guarantor) as an office in which a register
with respect to the Securities of one or more series, or any Tranche
or Tranches thereof, shall be maintained, and the Company may
designate itself or any Affiliate (including the Guarantor) as the
Security Registrar with respect to one or more of such series. The
Security Register shall be open for inspection by the Trustee and the
Company at all reasonable times.
Except as otherwise specified as contemplated by Section 301
with respect to the Securities of any series, or any Tranche thereof,
upon surrender for registration of transfer of any Security of such
series or Tranche at the office or agency of the Company maintained
pursuant to Section 602 in a Place of Payment for such series or
Tranche, the Company shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees,
one or more new Securities of the same series and Tranche, of
authorized denominations and of like tenor and aggregate principal
amount, with the Guarantees of the Guarantor endorsed thereon.
Except as otherwise specified as contemplated by Section 301
with respect to the Securities of any series, or any Tranche thereof,
any Security of such series or Tranche may be exchanged at the option
of the Holder for one or more new Securities of the same series and
Tranche, of authorized denominations and of like tenor and aggregate
principal amount, upon surrender of the Securities to be exchanged at
any such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities, with the Guarantees of the
Guarantor endorsed thereon, which the Holder making the exchange is
entitled to receive.
All Securities and Guarantees delivered upon any
registration of transfer or exchange of Securities and the Guarantees
endorsed thereon shall be valid obligations of the Company and the
Guarantor, respectively, evidencing the same obligation, and entitled
to the same benefits under this Indenture, as the Securities and
Guarantees surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the
Guarantor, or the Trustee) be duly endorsed or shall be accompanied by
a written instrument of transfer in form satisfactory to the Company,
the Guarantor and the Trustee, duly executed by the Holder thereof or
his attorney duly authorized in writing.
Unless otherwise specified as contemplated by Section 301,
with respect to Securities of any series, or any Tranche thereof, no
service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 406 or 1206
not involving any transfer.
The Company shall not be required to execute or to provide
for the registration of transfer of or the exchange of (a) Securities
of any series, or any Tranche thereof, during a period of 15 days
immediately preceding the date notice is to be given identifying the
serial numbers of the Securities of such series or Tranche called for
redemption or (b) any Security so selected for redemption in whole or
in part, except the unredeemed portion of any Security being redeemed
in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver
in exchange therefor a new Security of the same series and Tranche,
and of like tenor and principal amount, having a Guarantee of the
Guarantor endorsed thereon and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company, the Guarantor
and the Trustee (a) evidence to their satisfaction of the ownership of
and the destruction, loss or theft of any Security and (b) such
security or indemnity as may be reasonably required by them to save
each of them and any agent of any of them harmless, then, in the
absence of notice to the Company, the Guarantor or the Trustee that
such Security has been acquired by a bona fide purchaser, the Company
shall execute and the Trustee shall authenticate and deliver, in lieu
of any such destroyed, lost or stolen Security, a new Security of the
same series and Tranche, and of like tenor and principal amount,
having a Guarantee of the Guarantor endorsed thereon and bearing a
number not contemporaneously outstanding.
Notwithstanding the foregoing, in case any such mutilated,
destroyed, lost or stolen Security has become or is about to become
due and payable, the Company or the Guarantor in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section,
the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses (including the fees and
expenses of the Trustee) in connection therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security and any
Guarantee endorsed thereon shall constitute an original additional
contractual obligation of the Company and the Guarantor, respectively,
whether or not the destroyed, lost or stolen Security shall be at any
time enforceable by anyone other than the Holder of such new security,
and any such new Security shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other
Securities of such series duly issued hereunder, and the Guarantees
endorsed on such Securities.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise provided as contemplated by Section 301
with respect to the Securities of any series, or any Tranche thereof,
interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular
Record Date for such interest.
Any interest on any Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith
cease to be payable to the Holder on the related Regular Record Date
by virtue of having been such Holder, and such Defaulted Interest may
be paid by the Company or the Guarantor, at its election in each case,
as provided in clause (a) or (b) below:
(a) The Company or the Guarantor may elect to make payment
of any Defaulted Interest to the Persons in whose names the
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a date (a
"Special Record Date") for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The
Company or the Guarantor shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each
Security of such series and the date of the proposed payment, and
at the same time the Company or the Guarantor, as the case may
be, shall deposit with the Trustee an amount of money equal to
the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in
this clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to
the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company and the Guarantor
of such Special Record Date and, in the name and at the expense
of the Company or the Guarantor, shall promptly cause notice of
the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Securities of such series at the address of
such Holder as it appears in the Security Register, not less than
10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at
the close of business on such Special Record Date.
(b) The Company or the Guarantor may make payment of any
Defaulted Interest on the Securities of any series in any other
lawful manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed, and
upon such notice as may be required by such exchange, if, after
notice given by the Company or the Guarantor to the Trustee of
the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any other
Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of
transfer, the Company, the Guarantor, the Trustee and any agent of the
Company, the Guarantor or the Trustee may treat the Person in whose
name such Security is registered as the absolute owner of such
Security for the purpose of receiving payment of principal of and
premium, if any, and (subject to Sections 305 and 307) interest, if
any, on such Security and for all other purposes whatsoever, whether
or not such Security be overdue, and none of the Company, the
Guarantor, the Trustee or any agent of the Company, the Guarantor or
the Trustee shall be affected by notice to the contrary.
SECTION 309. CANCELLATION.
All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking
fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and, if not theretofore canceled,
shall be promptly canceled by the Trustee. The Company or the
Guarantor may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the
Company or the Guarantor may have acquired in any manner whatsoever or
which the Company shall not have issued and sold, and all Securities
so delivered shall be promptly canceled by the Trustee. No Securities
shall be authenticated in lieu of or in exchange for any Securities
canceled as provided in this Section, except as expressly permitted by
this Indenture. All canceled Securities held by the Trustee shall be
disposed of in accordance with the Trustee's customary procedures, and
the Trustee shall promptly deliver a certificate of disposition to the
Company unless, by a Company Order, the Company shall direct that
canceled Securities be returned to it.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, or Tranche thereof, interest on the
Securities of each series shall be computed on the basis of a 360-day
year consisting of twelve 30-day months, and with respect to any
period less than a full calendar month, on the basis of the actual
number of days elapsed during such period.
SECTION 311. PAYMENT TO BE IN PROPER CURRENCY.
In the case of any Security denominated in any currency
other than Dollars or in a composite currency (the "Required
Currency"), except as otherwise specified with respect to such
Security as contemplated by Section 301, the obligation of the Company
or the Guarantor to make any payment of the principal thereof, or the
premium or interest thereon, shall not be discharged or satisfied by
any tender by the Company or the Guarantor, or recovery by the
Trustee, in any currency other than the Required Currency, except to
the extent that such tender or recovery shall result in the Trustee
timely holding the full amount of the Required Currency then due and
payable. If any such tender or recovery is in a currency other than
the Required Currency, the Trustee may take such actions as it
considers appropriate to exchange such currency for the Required
Currency. The costs and risks of any such exchange, including without
limitation the risks of delay and exchange rate fluctuation, shall be
borne by the Company and the Guarantor, the Company and the Guarantor
shall remain fully liable for any shortfall or delinquency in the full
amount of Required Currency then due and payable, and in no
circumstances shall the Trustee be liable therefor except in the case
of its negligence or willful misconduct. The Company and the Guarantor
hereby waive 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.
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 401. APPLICABILITY OF ARTICLE.
Securities of any series, or any Tranche thereof, which are
redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as con-
templated by Section 301 for Securities of such series or Tranche) in
accordance with this Article.
SECTION 402. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall
be evidenced by a Board Resolution or an Officer's Certificate. The
Company shall, at least 45 days prior to the Redemption Date fixed by
the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee in writing of such Redemption Date and of
the principal amount of such Securities to be redeemed. In the case of
any redemption of Securities (a) prior to the expiration of any
restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture or (b) pursuant to an
election of the Company which is subject to a condition specified in
the terms of such Securities, the Company and the Guarantor shall each
furnish the Trustee with an Officer's Certificate evidencing
compliance with such restriction or condition.
SECTION 403. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series, or any
Tranche thereof, are to be redeemed, the particular Securities to be
redeemed shall be selected by the Trustee from the Outstanding
Securities of such series or Tranche not previously called for
redemption, by such method as shall be provided for such particular
series or Tranche, or in the absence of any such provision, by such
method of random selection as the Trustee shall deem fair and
appropriate and which may, in any case, provide for the selection for
redemption of portions (equal to any authorized denomination for
Securities of such series or Tranche) of the principal amount of
Securities of such series or Tranche of a denomination larger than the
minimum authorized denomination for Securities of such series or
Tranche; provided, however, that if, as indicated in an Officer's
Certificate, the Company shall have offered to purchase all or any
principal amount of the Securities then Outstanding of any series, or
any Tranche thereof, and less than all of such Securities as to which
such offer was made shall have been tendered to the Company for such
purchase, the Trustee, if so directed by Company Order, shall select
for redemption all or any principal amount of such Securities which
have not been so tendered.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any
Securities selected to be redeemed in part, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed or to
be redeemed only in part, to the portion of the principal amount of
such Securities which has been or is to be redeemed.
SECTION 404. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided
in Section 106 to the Holders of Securities to be redeemed not less
than 30 nor more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any series
or Tranche are to be redeemed, the identification of
the particular Securities to be redeemed and the
portion of the principal amount of any Security to be
redeemed in part,
(d) that on the Redemption Date the Redemption
Price, together with accrued interest, if any, to the
Redemption Date, will become due and payable upon each
such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said
date,
(e) the place or places where such Securities are
to be surrendered for payment of the Redemption Price
and accrued interest, if any, unless it shall have been
specified as contemplated by Section 301 with respect
to such Securities that such surrender shall not be
required,
(f) that the redemption is for a sinking or other
fund, if such is the case, and
(g) such other matters as the Company shall deem
desirable or appropriate.
Unless otherwise specified with respect to any Securities in
accordance with Section 301, with respect to any notice of redemption
of Securities at the election of the Company, unless, upon the giving
of such notice, such Securities shall be deemed to have been paid in
accordance with Section 701, such notice may state that such
redemption shall be conditional upon the receipt by the Paying Agent
or Agents for such Securities, on or prior to the date fixed for such
redemption, of money sufficient to pay the principal of and premium,
if any, and interest, if any, on such Securities and that if such
money shall not have been so received such notice shall be of no force
or effect and the Company shall not be required to redeem such
Securities. In the event that such notice of redemption contains such
a condition and such money is not so received, the redemption shall
not be made and within a reasonable time thereafter notice shall be
given, in the manner in which the notice of redemption was given, that
such money was not so received and such redemption was not required to
be made.
Notice of redemption of Securities to be redeemed at the
election of the Company, and any notice of non-satisfaction of a
condition for redemption as aforesaid, shall be given by the Company
or, on Company Request, by the Trustee in the name and at the expense
of the Company.
SECTION 405. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, and the
conditions, if any, set forth in such notice having been satisfied,
the Securities or portions thereof so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless, in the case
of an unconditional notice of redemption, the Company shall default in
the payment of the Redemption Price and accrued interest, if any) such
Securities or portions thereof, if interest-bearing, shall cease to
bear interest. Upon surrender of any such Security for redemption in
accordance with such notice, such Security or portion thereof shall be
paid by the Company at the Redemption Price, together with accrued
interest, if any, to the Redemption Date; provided, however, that no
such surrender shall be a condition to such payment if so specified as
contemplated by Section 301 with respect to such Security; and
provided, further, that except as otherwise specified as contemplated
by Section 301 with respect to such Security, any installment of
interest on any Security the Stated Maturity of which installment is
on or prior to the Redemption Date shall be payable to the Holder of
such Security, or one or more Predecessor Securities, registered as
such at the close of business on the related Regular Record Date
according to the terms of such Security and subject to the provisions
of Sections 305 and 307.
SECTION 406. SECURITIES REDEEMED IN PART.
Upon the surrender of any Security which is to be redeemed
only in part at a Place of Payment therefor (with, if the Company, the
Guarantor or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the
Guarantor and the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing), the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge, a new Security or Securities of the
same series and Tranche, of any authorized denomination requested by
such Holder and of like tenor and in aggregate principal amount equal
to and in exchange for the unredeemed portion of the principal of the
Security so surrendered, with the Guarantee of the Guarantor endorsed
thereon.
ARTICLE FIVE
SINKING FUNDS
SECTION 501. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of the Securities of any series, or
any Tranche thereof, except as otherwise specified as contemplated by
Section 301 for Securities of such series or Tranche.
The minimum amount of any sinking fund payment provided for
by the terms of Securities of any series, or any Tranche thereof, is
herein referred to as a "mandatory sinking fund payment", and any
payment in excess of such minimum amount provided for by the terms of
Securities of any series, or any Tranche thereof, is herein referred
to as an "optional sinking fund payment". If provided for by the terms
of Securities of any series, or any Tranche thereof, the cash amount
of any sinking fund payment may be subject to reduction as provided in
Section 502. Each sinking fund payment shall be applied to the
redemption of Securities of the series or Tranche in respect of which
it was made as provided for by the terms of such Securities.
SECTION 502. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (a) may deliver to the Trustee Outstanding
Securities (other than any previously called for redemption) of a
series or Tranche in respect of which a mandatory sinking fund payment
is to be made and (b) may apply as a credit Securities of such series
or Tranche which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to
the terms of such Securities, in each case in satisfaction of all or
any part of such mandatory sinking fund payment; provided, however,
that no Securities shall be applied in satisfaction of a mandatory
sinking fund payment if such Securities shall have been previously so
applied. Securities so applied shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in such
Securities for redemption through operation of the sinking fund and
the amount of such mandatory sinking fund payment shall be reduced
accordingly.
SECTION 503. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days prior to each sinking fund payment
date for the Securities of any series, or any Tranche thereof, the
Company shall deliver to the Trustee an Officer's Certificate
specifying:
(a) the amount of the next succeeding mandatory sinking fund
payment for such series or Tranche;
(b) the amount, if any, of the optional sinking fund payment
to be made together with such mandatory sinking fund payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking fund
payment which is to be satisfied by the payment of cash;
(e) the portion, if any, of such aggregate sinking fund
payment which is to be satisfied by delivering and crediting
Securities of such series or Tranche pursuant to Section 502 and
stating the basis for such credit and that such Securities have
not previously been so credited, and the Company shall also
deliver to the Trustee any Securities to be so delivered. If the
Company shall not deliver such Officer's Certificate, the next
succeeding sinking fund payment for such series or Tranche shall
be made entirely in cash in the amount of the mandatory sinking
fund payment. Not less than 30 days before each such sinking fund
payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner
specified in Section 403 and cause notice of the redemption
thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 404. Such notice having
been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 405 and 406.
ARTICLE SIX
COVENANTS
SECTION 601. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company shall pay the principal of and premium, if any,
and interest, if any, on the Securities of each series in accordance
with the terms of such Securities and this Indenture.
SECTION 602. MAINTENANCE OF OFFICE OR AGENCY.
The Company and the Guarantor shall maintain in each Place
of Payment for the Securities of each series, or any Tranche thereof,
an office or agency where payment of such Securities shall be made or
surrendered for payment, where registration of transfer or exchange of
such Securities may be effected and where notices and demands to or
upon the Company or the Guarantor in respect of such Securities and
this Indenture may be served. The Company and the Guarantor shall give
prompt written notice to the Trustee of the location, and any change
in the location, of each such office or agency and prompt notice to
the Holders of any such change in the manner specified in Section 106.
If at any time the Company or the Guarantor shall fail to maintain any
such required office or agency in respect of Securities of any series,
or any Tranche thereof, or shall fail to furnish the Trustee with the
address thereof, payment of such Securities may be made, registration
of transfer or exchange thereof may be effected and notices and
demands in respect thereby may be served at the Corporate Trust Office
of the Trustee, and each of the Company and the Guarantor hereby
appoint the Trustee as its agent for all such purposes in any such
event.
The Company or the Guarantor may also from time to time
designate one or more other offices or agencies with respect to the
Securities of one or more series, or any Tranche thereof, for any or
all of the foregoing purposes and may from time to time rescind such
designations; provided, however, that, unless otherwise specified as
contemplated by Section 301 with respect to the Securities of such
series or Tranche, no such designation or rescission shall in any
manner relieve the Company or the Guarantor of its obligation to
maintain an office or agency for such purposes in each Place of
Payment for such Securities in accordance with the requirements set
forth above. The Company and the Guarantor shall give prompt written
notice to the Trustee, and prompt notice to the Holders in the manner
specified in Section 106, of any such designation or rescission and of
any change in the location of any such other office or agency.
Anything herein to the contrary notwithstanding, any office
or agency required by this Section may be maintained at an office of
the Company or the Guarantor or any Affiliate of either of them, in
which event the Company, the Guarantor or such Affiliate, as the case
may be, shall perform all functions to be performed at such office or
agency.
SECTION 603. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent
with respect to the Securities of any series, or any Tranche thereof,
it shall, on or before each due date of the principal of and premium,
if any, or interest, if any, on any of such Securities, segregate and
hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal and premium or interest so becoming
due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and shall promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents
for the Securities of any series, or any Tranche thereof, it shall,
prior to each due date of the principal of and premium, if any, or
interest, if any, on such Securities, deposit with such Paying Agents
sums sufficient (without duplication) to pay the principal and premium
or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the Company
shall promptly notify the Trustee of its action or failure so to act.
The Company shall cause each Paying Agent for the Securities
of any series, or any Tranche thereof, other than the Company or the
Trustee, to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent shall:
(a) hold all sums held by it for the payment of the
principal of and premium, if any, or interest, if any, on
Securities of such series or Tranche in trust for the benefit of
the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities of such series) in the
making of any payment of principal of and premium, if any, or
interest, if any, on the Securities of such series or Tranche;
and
(c) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time pay, or by Company Order direct
any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon
the same trusts as those upon which such sums were held by the Company
or such Paying Agent and, if as stated in a Company Order delivered to
the Trustee, in accordance with the provisions of Article Seven; and,
upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of
and premium, if any, or interest, if any, on any Security and
remaining unclaimed for two years after such principal and premium, if
any, or interest has become due and payable shall be paid to the
Company on Company Request, or, if then held by the Company, shall
be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company
and the Guarantor for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being
required to make any such payment to the Company, may at the expense
of the Company, either (a) cause to be mailed, on one occasion only,
notice to such Holder that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days
from the date of such mailing, any unclaimed balance of such money
then remaining will be paid to the Company or (b) cause to be
published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation
in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that after a date specified therein, which
shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be paid to the
Company.
SECTION 604. CORPORATE EXISTENCE.
Subject to the rights of the Company and the Guarantor under
Article Eleven, each of the Company and the Guarantor shall do or
cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence.
SECTION 605. ANNUAL OFFICER'S CERTIFICATE
Not later than April 30 in each year, commencing April 30,
1998, each of the Company and the Guarantor shall deliver to the
Trustee an Officer's Certificate which need not comply with Section
102, executed by its principal executive officer, principal financial
officer or principal accounting officer, as to such officer's
knowledge of such obligor's compliance with all conditions and
covenants under this Indenture, such compliance to be determined
without regard to any period of grace or requirement of notice under
this Indenture.
SECTION 606. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply
with any term, provision or condition set forth in
(a) any covenant or restriction specified with respect to
the Securities of any series, or any Tranche thereof, as
contemplated by Section 301 or by Section 1201(b) if before the
time for such compliance the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all series and
Tranches with respect to which compliance with such covenant or
restriction is to be omitted, considered as one class, shall, by
Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision
or condition; and
(b) Section 1101(b) if before the time for such compliance
the Holders of a majority in principal amount of Securities
Outstanding under this Indenture shall, by Act of such Holders,
either waive such compliance in such instance or generally waive
compliance with such term, provision or condition;
but, in either case, no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of the
Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
ARTICLE SEVEN
SATISFACTION AND DISCHARGE
SECTION 701. SATISFACTION AND DISCHARGE OF SECURITIES.
Any Security or Securities, or any portion of the principal
amount thereof, shall be deemed to have been paid for all purposes of
this Indenture, and the entire indebtedness of the Company and the
Guarantor in respect thereof shall be satisfied and discharged, if
there shall have been irrevocably deposited with the Trustee or any
Paying Agent (other than the Company or the Guarantor), in trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the Maturity of
such Securities or portions thereof, Eligible Obligations, which
shall not contain provisions permitting the redemption or other
prepayment thereof at the option of the issuer thereof, the
principal of and the interest on which when due, without any
regard to reinvestment thereof, will provide moneys which,
together with the money, if any, deposited with or held by the
Trustee or such Paying Agent, shall be sufficient, or
(c) a combination of (a) or (b) which shall be sufficient,
to pay when due the principal of and premium, if any, and interest, if
any, due and to become due on such Securities or portions thereof;
provided, however, that in the case of the provision for payment or
redemption of less than all the Securities of any series or Tranche,
such Securities or portions thereof shall have been selected by the
Trustee as provided herein and, in the case of a redemption, the
notice requisite to the validity of such redemption shall have been
given or irrevocable authority shall have been given by the Company to
the Trustee to give such notice, under arrangements satisfactory to
the Trustee; and provided, further, that the Company shall have
delivered to the Trustee and such Paying Agent:
(x) if such deposit shall have been made prior to the
Maturity of such Securities, a Company Order stating that the
money and Eligible Obligations deposited in accordance with this
Section shall be held in trust, as provided in Section 603;
(y) if Eligible Obligations shall have been deposited, an
Opinion of Counsel to the effect that such obligations constitute
Eligible Obligations and do not contain provisions permitting the
redemption or other prepayment thereof at the option of the
issuer thereof, and an opinion of an independent public
accountant of nationally recognized standing, selected by the
Company, to the effect that the other requirements set forth in
clause (b) and (c) above have been satisfied; and
(z) if such deposit shall have been made prior to the
Maturity of such Securities, an Officer's Certificate stating the
Company's intention that, upon delivery of such Officer's
Certificate, its indebtedness in respect of such Securities or
portions thereof will have been satisfied and discharged as
contemplated in this Section.
Upon the deposit of money or Eligible Obligations, or both,
in accordance with this Section, together with the documents required
by clauses (x), (y) and (z) above, the Trustee shall, upon Company
Request, acknowledge in writing that such Securities or portions
thereof are deemed to have been paid for all purposes of this
Indenture and that the entire indebtedness of the Company in respect
thereof has been satisfied and discharged as contemplated in this
Section. In the event that all of the conditions set forth in the
preceding paragraph shall have been satisfied in respect of any
Securities or portions thereof except that, for any reason, the
Officer's Certificate specified in clause (z) (if otherwise required)
shall not have been delivered, such Securities or portions thereof
shall nevertheless be deemed to have been paid for all purposes of
this Indenture, and the Holders of such Securities or portions thereof
shall nevertheless be no longer entitled to the benefits provided by
this Indenture or of any of the covenants of the Company under Article
Six (except the covenants contained in Sections 602 and 603) or any
other covenants made in respect of such Securities or portions thereof
as contemplated by Section 301 or Section 1201(b), but the
indebtedness of the Company in respect of such Securities or portions
thereof shall not be deemed to have been satisfied and discharged
prior to Maturity for any other purpose; and, upon Company Request,
the Trustee shall acknowledge in writing that such Securities or
portions thereof are deemed to have been paid for all purposes of this
Indenture.
If payment at Stated Maturity of less than all of the
Securities of any series, or any Tranche thereof, is to be provided
for in the manner and with the effect provided in this Section, the
Trustee shall select such Securities, or portions of principal amount
thereof, in the manner specified by Section 403 for selection for
redemption of less than all the Securities of a series or Tranche.
In the event that Securities which shall be deemed to have
been paid for purposes of this Indenture, and, if such is the case, in
respect of which the Company's indebtedness shall have been satisfied
and discharged, all as provided in this Section, do not mature and are
not to be redeemed within the sixty (60) day period commencing with
the date of the deposit of moneys or Eligible Obligations, as
aforesaid, the Company shall, as promptly as practicable, give a
notice, in the same manner as a notice of redemption with respect to
such Securities, to the Holders of such Securities to the effect that
such deposit has been made and the effect thereof.
Notwithstanding that any Securities shall be deemed to have
been paid for purposes of this Indenture, as aforesaid, the
obligations of the Company, the Guarantor and the Trustee in respect
of such Securities under Sections 304, 305, 306, 404, 602, 603, 907
and 914 and this Article shall survive.
The Company shall pay, and shall indemnify the Trustee or
any Paying Agent with which Eligible Obligations shall have been
deposited as provided in this Section against, any tax, fee or other
charge imposed on or assessed against such Eligible Obligations or the
principal or interest received in respect of such Eligible
Obligations, including, but not limited to, any such tax payable by
any entity deemed, for tax purposes, to have been created as a result
of such deposit.
Anything herein to the contrary notwithstanding, (a) if, at
any time after a Security would be deemed to have been paid for
purposes of this Indenture, and, if such is the case, the Company's
indebtedness in respect thereof would be deemed to have been satisfied
and discharged, pursuant to this Section (without regard to the
provisions of this paragraph), the Trustee or any Paying Agent, as the
case may be, (i) shall be required to return the money or Eligible
Obligations, or combination thereof, deposited with it as aforesaid to
the Company or its representative under any applicable Federal or
State bankruptcy, insolvency or other similar law, or (ii) are unable
to apply any money in accordance with this Article with respect to any
Securities by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting
such application, such Security shall thereupon be deemed
retroactively not to have been paid and any satisfaction and discharge
of the Company's indebtedness in respect thereof shall retroactively
be deemed not to have been effected, and such Security shall be deemed
to remain Outstanding and (b) any satisfaction and discharge of the
Company's indebtedness in respect of any Security shall be subject to
the provisions of the last paragraph of Section 603.
SECTION 702. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of
further effect (except as hereinafter expressly provided), and the
Trustee, at the expense of the Company, shall execute such instruments
as the Company shall reasonably request to evidence and acknowledge
the satisfaction and discharge of this Indenture, when:
(a) no Securities remain Outstanding hereunder; and
(b) the Company or the Guarantor has paid or caused to be
paid all other sums payable hereunder by the Company or the
Guarantor;
provided, however, that if, in accordance with the last paragraph of
Section 701, any Security, previously deemed to have been paid for
purposes of this Indenture, shall be deemed retroactively not to have
been so paid, this Indenture shall thereupon be deemed retroactively
not to have been satisfied and discharged, as aforesaid, and to remain
in full force and effect, and the Company shall execute and deliver
such instruments as the Trustee shall reasonably request to evidence
and acknowledge the same.
Notwithstanding the satisfaction and discharge of this
Indenture as aforesaid, the obligations of the Company, the Guarantor
and the Trustee under Sections 304, 305, 306, 404, 602, 603, 907 and
914 and this Article shall survive.
Upon satisfaction and discharge of this Indenture as
provided in this Section, the Trustee shall turn over to the Company
any and all money, securities and other property then held by the
Trustee for the benefit of the Holders of the Securities (other than
money and Eligible Obligations held by the Trustee pursuant to Section
703) and shall execute and deliver to the Company and the Guarantor
such instruments as, in the judgment of the Company and the Guarantor,
shall be necessary, desirable or appropriate to effect or evidence the
satisfaction and discharge of this Indenture.
SECTION 703. APPLICATION OF TRUST MONEY.
Neither the Eligible Obligations nor the money deposited
pursuant to Section 701, nor the principal or interest payments on any
such Eligible Obligations, shall be withdrawn or used for any purpose
other than, and shall be held in trust for, the payment of the
principal of and premium, if any, and interest, if any, on the
Securities or portions of principal amount thereof in respect of which
such deposit was made, all subject, however, to the provisions of
Section 603; provided, however, that any cash received from such
principal or interest payments on such Eligible Obligations, if not
then needed for such purpose, shall, to the extent practicable and
upon Company Request and delivery to the Trustee of the documents
referred to in clause (y) in the first paragraph of Section 701, be
invested in Eligible Obligations of the type described in clause (b)
in the first paragraph of Section 701 maturing at such times and in
such amounts as shall be sufficient, together with any other moneys
and the proceeds of any other Eligible Obligations then held by the
Trustee, to pay when due the principal of and premium, if any, and
interest, if any, due and to become due on such Securities or portions
thereof on and prior to the Maturity thereof, and interest earned from
such reinvestment shall be paid over to the Company as received, free
and clear of any trust, lien or pledge under this Indenture (except
the lien provided by Section 907); and provided, further, that any
moneys held in accordance with this Section on the Maturity of all
such Securities in excess of the amount required to pay the principal
of and premium, if any, and interest, if any, then due on such
Securities shall be paid over to the Company free and clear of any
trust, lien or pledge under this Indenture (except the lien provided
by Section 907); and provided, further, that if an Event of Default
shall have occurred and be continuing, moneys to be paid over to the
Company pursuant to this Section shall be held until such Event of
Default shall have been waived or cured.
ARTICLE EIGHT
EVENTS OF DEFAULT; REMEDIES
SECTION 801. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events:
(a) default in the payment of any interest on any Security
of such series when it becomes due and payable and continuance of
such default for a period of 30 days; or
(b) default in the payment of the principal of or premium,
if any, on any Security of such series when it becomes due and
payable; or
(c) default in the performance of, or breach of, any
covenant or warranty of the Company or the Guarantor in this
Indenture (other than a covenant or warranty a default in the
performance of which or breach of which is elsewhere in this
Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of one or more
series of Securities other than such series) and continuance of
such default or breach for a period of 90 days after there has
been given, by registered or certified mail, to the Company and
the Guarantor by the Trustee, or to the Company, the Guarantor
and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of such series, a written
notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder, unless the Trustee, or the Trustee and the Holders of
a principal amount of Securities of such series not less than the
principal amount of Securities the Holders of which gave such
notice, as the case may be, shall agree in writing to an
extension of such period prior to its expiration; provided,
however, that the Trustee, or the Trustee and the Holders of such
principal amount of Securities of such series, as the case may
be, shall be deemed to have agreed to an extension of such period
if corrective action is initiated by the Company or the Guarantor
within such period and is being diligently pursued; or
(d) except as provided by the terms hereof, the Securities
of such series and the Guarantees endorsed thereon, the cessation
of effectiveness of the Guarantee endorsed on a Security of such
series or the finding by any judicial proceeding that the
Guarantee endorsed on a Security of such series is unenforceable
or invalid or the denial or disaffirmation by the Guarantor of
its obligations under the Guarantee endorsed on a Security of
such series; or
(e) the entry by a court having jurisdiction in the premises
of (1) a decree or order for relief in respect of the Company or
the Guarantor in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (2) a decree or order
adjudging the Company or the Guarantor a bankrupt or insolvent,
or approving as properly filed a petition by one or more Persons
other than the Company or the Guarantor seeking reorganization,
arrangement, adjustment or composition of or in respect of the
Company or the Guarantor under any applicable Federal or State
law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official for the Company
or the Guarantor or for any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and any
such decree or order for relief or any such other decree or order
shall have remained unstayed and in effect for a period of 90
consecutive days; or
(f) the commencement by the Company or the Guarantor of a
voluntary case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law
or of any other case or proceeding to be adjudicated a bankrupt
or insolvent, or the consent by the Company or the Guarantor to
the entry of a decree or order for relief in respect of the
Company or the Guarantor in a case or proceeding under any
applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against the Company
or the Guarantor, or the filing by the Company or the Guarantor
of a petition or answer or consent seeking reorganization or
relief under any applicable Federal or State law, or the consent
by the Company or the Guarantor to the filing of such petition or
to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or the Guarantor or of any substantial
part of its property, or the making by the Company or the
Guarantor of an assignment for the benefit of creditors, or the
admission by the Company or the Guarantor in writing of its
inability to pay its debts generally as they become due, or the
authorization of such action by the Board of Directors of the
Company or the Guarantor; or
(g) any other Event of Default specified with respect to
Securities of such series.
SECTION 802. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default shall have occurred and be continuing
with respect to Securities of any series at the time Outstanding, then
in every such case the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities of such series may
declare the principal amount (or, if any of the Securities of such
series are Discount Securities, such portion of the principal amount
of such Securities as may be specified in the terms thereof as
contemplated by Section 301) of all of the Securities of such series
to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon receipt by
the Company of notice of such declaration such principal amount (or
specified amount) shall become immediately due and payable; provided,
however, that if an Event of Default shall have occurred and be
continuing with respect to more than one series of Securities, the
Trustee or the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities of all such series, considered as
one class, may make such declaration of acceleration, and not the
Holders of the Securities of any one of such series.
At any time after such a declaration of acceleration with
respect to Securities of any series shall have been made and before a
judgment or decree for payment of the money due shall have been
obtained by the Trustee as hereinafter in this Article provided, such
declaration and its consequences shall, without further act, be deemed
to have been rescinded and annulled, if
(a) the Company or the Guarantor shall have paid or
deposited with the Trustee a sum sufficient to pay
(1) all overdue interest, if any, on all
Securities of such series then Outstanding;
(2) the principal of and premium, if any, on any
Securities of such series then Outstanding which have
become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates
prescribed therefor in such Securities;
(3) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or
rates prescribed therefor in such Securities;
(4) all amounts due to the Trustee under Section
907;
and
(b) all Events of Default with respect to
Securities of such series, other than the non payment
of the principal of Securities of such series which
shall have become due solely by such declaration of
acceleration, shall have been cured or waived as
provided in Section 813.
No such rescission shall affect any subsequent Event of Default or
impair any right consequent thereon.
SECTION 803. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
If an Event of Default described in clause (a) or (b) of
Section 801 shall have occurred, the Company or the Guarantor shall,
upon demand of the Trustee, pay to it, for the benefit of the Holders
of the Securities of the series with respect to which such Event of
Default shall have occurred, the whole amount then due and payable on
such Securities for principal and premium, if any, and interest, if
any, and, to the extent permitted by law, interest on premium, if any,
and on any overdue principal and interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover any amounts due to the
Trustee under Section 907.
If the Company shall fail to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of the
sums so due and unpaid, may prosecute such proceeding to judgment or
final decree and may enforce the same against the Company and the
Guarantor or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law
out of the property of the Company and the Guarantor or any other
obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any
series shall have occurred and be continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of
the Holders of Securities of such series by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of
any power granted herein, or to enforce any other proper remedy.
SECTION 804. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or
the Guarantor or any other obligor upon the Securities or the property
of the Company or the Guarantor or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall
have made any demand on the Company or the Guarantor for the payment
of overdue principal or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
principal, premium, if any, and interest, if any, owing and
unpaid in respect of the Securities and to file such other papers
or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for amounts due to
the Trustee under Section 907) and of the Holders allowed in such
judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding
is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any
amounts due it under Section 907.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of the claim of
any Holder in any such proceeding; provided, however, that the Trustee
may, on behalf of the Holders, be a member of a creditors' or similar
other committee.
SECTION 805. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture, the
Securities or the Guarantees endorsed thereon may be prosecuted and
enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the
Holders in respect of which such judgment has been recovered.
SECTION 806. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, to the extent permitted by
law, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal or premium, if any,
or interest, if any, upon presentation of the Securities in respect
of which or for the benefit of which such money shall have been
collected and the notation thereon of the payment if only partially
paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 907;
SECOND: To the payment of the amounts then due and unpaid
upon the Securities for principal of and premium, if any, and
interest, if any, in respect of which or for the benefit of which
such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on
such Securities for principal, premium, if any, and interest, if
any, respectively;
THIRD: To the payment of the remainder, if any, to the
Company or to whomsoever may be lawfully entitled to receive the
same or as a court of competent jurisdiction may direct.
SECTION 807. LIMITATION ON SUITS.
No Holder shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(a) such Holder shall have previously given written notice
to the Trustee of a continuing Event of Default with respect to
the Securities of such series;
(b) the Holders of 25% in aggregate principal amount of the
Outstanding Securities of all series in respect of which an Event
of Default shall have occurred and be continuing, considered as
one class, shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(c) such Holder or Holders shall have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities
to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity shall have failed to
institute any such proceeding; and
(e) no direction inconsistent with such written request
shall have been given to the Trustee during such 60-day period by
the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series in respect of which an Event
of Default shall have occurred and be continuing, considered as
one class;
it being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other of such Holders or to obtain or to
seek to obtain priority or preference over any other of such Holders
or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 808. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and premium, if
any, and (subject to Section 307) interest, if any, on such Security
on the Stated Maturity or Maturities expressed in such Security (or,
in the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 809. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding
to enforce any right or remedy under this Indenture and such
proceeding shall have been discontinued or abandoned for any reason,
or shall have been determined adversely to the Trustee or to such
Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Guarantor, the Trustee and such
Holder shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the
Trustee and such Holder shall continue as though no such proceeding
had been instituted.
SECTION 810. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to
the Trustee or to the Holders is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 811. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to
exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy
given by this Article or by law to the Trustee or to the Holders may
be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 812. CONTROL BY HOLDERS OF SECURITIES.
If an Event of Default shall have occurred and be continuing
in respect of a series of Securities, the Holders of a majority in
principal amount of the Outstanding Securities of such series shall
have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred on the Trustee, with respect to the
Securities of such series; provided, however, that if an Event of
Default shall have occurred and be continuing with respect to more
than one series of Securities, the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all such series,
considered as one class, shall have the right to make such direction,
and not the Holders of the Securities of any one of such series; and
provided, further, that
(a) such direction shall not be in conflict with any rule of
law or with this Indenture, and could not involve the Trustee in
personal liability in circumstances where indemnity would not, in
the Trustee's sole discretion, be adequate, and
(b) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 813. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount
of the Outstanding Securities of any series may on behalf of the
Holders of all the Securities of such series waive any past default
hereunder with respect to such series and its consequences, except a
default
(a) in the payment of the principal of or premium, if any,
or interest, if any, on any Security of such series, or
(b) in respect of a covenant or provision hereof which under
Section 1202 cannot be modified or amended without the consent of
the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any and all Events of Default arising therefrom shall be deemed to
have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any
right consequent thereon.
SECTION 814. UNDERTAKING FOR COSTS.
The Company, the Guarantor and the Trustee agree, and each
Holder by his acceptance thereof shall be deemed to have agreed, that
any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken, suffered or omitted by
it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by
such party litigant, in each case in the manner, to the extent, and
subject to the exceptions provided in the Trust Indenture Act;
provided, that the provisions of this Section shall not be deemed to
authorize any court to require such an undertaking or to make such an
assessment in any suit instituted by the Company or the Guarantor.
SECTION 815. WAIVER OF USURY, STAY OR EXTENSION LAWS.
Each of the Company and the Guarantor covenants (to the
extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit
or advantage of, any usury, stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and each of the Company and the
Guarantor (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE NINE
THE TRUSTEE
SECTION 901. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default
with respect to Securities of any series,
(1) the Trustee undertakes to perform, with respect to
Securities of such series, such duties and only such duties as
are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may, with respect to Securities of such series, conclusively
rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty
to examine the same to determine whether or not they conform to
the requirements of this Indenture.
(b) In case an Event of Default with respect to Securities
of any series shall have occurred and be continuing, the Trustee shall
exercise, with respect to Securities of such series, such of the
rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own
affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its
own negligent failure to act, or its own wilful misconduct, except
that
(1) this subsection shall not be construed to limit the
effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Trustee was negligent in ascertaining
the pertinent facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of any one or more
series, as provided herein, relating to the time, method and
place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture with respect to the Securities of
such series; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not
reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject
to the provisions of this Section.
SECTION 902. NOTICE OF DEFAULTS.
The Trustee shall give notice of any default hereunder with
respect to the Securities of any series to the Holders of Securities
of such series in the manner and to the extent required to do so by
the Trust Indenture Act, unless such default shall have been cured or
waived; provided, however, that in the case of any default of the
character specified in Section 801(c), no such notice to Holders shall
be given until at least 75 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which
is, or after notice or lapse of time, or both, would become, an Event
of Default with respect to the Securities of such series.
SECTION 903. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 901 and to the
applicable provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party
or parties;
(b) any request or direction of the Company or the Guarantor
mentioned herein shall be sufficiently evidenced by a Company
Request or Company Order, or a Guarantor Request or Guarantor
Order, as the case may be, or as otherwise expressly provided
herein, and any resolution of the Board of Directors of the
Company or the Guarantor may be sufficiently evidenced by a Board
Resolution thereof;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officer's Certificate of the Company or the
Guarantor, as appropriate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the
request or direction of any Holder pursuant to this Indenture,
unless such Holder shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document, but the Trustee, in
its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it
shall (subject to applicable legal requirements) be entitled to
examine, during normal business hours, the books, records and
premises of the Company or the Guarantor, personally or by agent
or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder; and
(h) the Trustee shall not be charged with knowledge of any
Event of Default with respect to the Securities of any series for
which it is acting as Trustee unless either (1) a Responsible
Officer of the Trustee assigned to the Corporate Trustee
Administration Department and agency group of the Trustee (or any
successor division or department of the Trustee) shall have
actual knowledge of the Event of Default or (2) written notice of
such Event of Default shall have been given to the Trustee by the
Company or the Guarantor or any other obligor on such Securities,
or by any Holder of such Securities.
SECTION 904. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities and the
Guarantees endorsed thereon (except the Trustee's certificates of
authentication) shall be taken as the statements of the Company and
the Guarantor, as the case may be, and neither the Trustee nor any
Authenticating Agent assumes responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of
this Indenture or of the Securities or the Guarantees endorsed
thereon. Neither Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities or
the proceeds thereof.
SECTION 905. MAY HOLD SECURITIES.
Each of the Trustee, any Authenticating Agent, any Paying
Agent, any Security Registrar or any other agent of the Company, in
its individual or any other capacity, may become the owner or pledgee
of Securities and, subject to Sections 908 and 913, may otherwise deal
with the Company with the same rights it would have if it were not the
Trustee, Authenticating Agent, Paying Agent, Security Registrar or
such other agent.
SECTION 906. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be
segregated from other funds, except to the extent required by law. The
Trustee shall be under no liability for interest on or investment of
any money received by it hereunder except as expressly provided herein
or otherwise agreed with, and for the sole benefit of, the Company or
the Guarantor.
SECTION 907. COMPENSATION AND REIMBURSEMENT.
The Company and the Guarantor jointly and severally agree
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances reasonably incurred or made
by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its
negligence, wilful misconduct or bad faith; and
(c) to indemnify the Trustee and hold it harmless from and
against, any loss, liability or expense reasonably incurred
without negligence, wilful misconduct or bad faith on its part,
arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the
costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any
of its powers or duties hereunder.
As security for the performance of the obligations of the
Company and the Guarantor under this Section, the Trustee shall have a
lien prior to the Securities upon all property and funds held or
collected by the Trustee as such, other than property and funds held
in trust under Section 703 (except moneys payable to the Company as
provided in Section 703).
SECTION 908. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee shall have or acquire any conflicting
interest within the meaning of the Trust Indenture Act, it shall
either eliminate such conflicting interest or resign to the extent, in
the manner and with the effect, and subject to the conditions,
provided in the Trust Indenture Act and this Indenture. For purposes
of Section 310(b)(1) of the Trust Indenture Act and to the extent
permitted thereby, the Trustee, in its capacity as trustee in respect
of the Securities of any series, shall not be deemed to have a
conflicting interest arising from its capacity as trustee in respect
of the Securities of any other series.
SECTION 909. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall
be
(a) a corporation organized and doing business under the
laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by Federal,
State or District of Columbia authority, or
(b) if and to the extent permitted by the Commission by
rule, regulation or order upon application, a corporation or other
Person organized and doing business under the laws of a foreign
government, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000
or the Dollar equivalent of the applicable foreign currency and
subject to supervision or examination by authority of such foreign
government or a political subdivision thereof substantially equivalent
to supervision or examination applicable to United States
institutional trustees
and, in either case, qualified and eligible under this Article and the
Trust Indenture Act. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of
such supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this
Section and the Trust Indenture Act, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
SECTION 910. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor
Trustee in accordance with the applicable requirements of Section 911.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to
the Company and the Guarantor. If the instrument of acceptance by a
successor Trustee required by Section 911 shall not have been
delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series
delivered to the Trustee, the Company and the Guarantor.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 908 after
written request therefor by the Company, the Guarantor or by any
Holder who has been a bona fide Holder for at least six months,
or
(2) the Trustee shall cease to be eligible under Section 909
or Section 310(a) of the Trust Indenture Act and shall fail to
resign after written request therefor by the Company, the
Guarantor or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or
of its property shall be appointed or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (x) the Company and the Guarantor by Board
Resolutions may remove the Trustee with respect to all Securities or
(y) subject to Section 814, any Holder who has been a bona fide Holder
for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee with respect to all Securities and the
appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause (other than as contemplated by clause (y) in
subsection (d) or this Section), with respect to the Securities of one
or more series, the Company and the Guarantor, by Board Resolutions,
shall promptly appoint a successor Trustee or Trustees with respect to
the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities
of one or more or all of such series and that at any time (subject to
Section 915) there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the
applicable requirements of Section 911. If, within one year after such
resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any
series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section
911, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee
appointed by the Company and the Guarantor. If no successor Trustee
with respect to the Securities of any series shall have been so
appointed by the Company and the Guarantor or the Holders and accepted
appointment in the manner required by Section 911, any Holder who has
been a bona fide Holder of a Security of such series for at least six
months may, on behalf of itself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(f) So long as no event which is, or after notice or lapse
of time, or both, would become, an Event of Default shall have
occurred and be continuing, and except with respect to a Trustee
appointed by Act of the Holders of a majority in principal amount of
the Outstanding Securities pursuant to subsection (e) of this Section,
if the Company and the Guarantor shall have delivered to the Trustee
(i) Board Resolutions of the Company and the Guarantor appointing a
successor Trustee, effective as of a date specified therein, and (ii)
an instrument of acceptance of such appointment, effective as of such
date, by such successor Trustee in accordance with Section 911, the
Trustee shall be deemed to have resigned as contemplated in subsection
(b) of this Section, the successor Trustee shall be deemed to have
been appointed by the Company and the Guarantor pursuant to subsection
(e) of this Section and such appointment shall be deemed to have been
accepted as contemplated in Section 911, all as of such date, and all
other provisions of this Section and Section 911 shall be applicable
to such resignation, appointment and acceptance except to the extent
inconsistent with this subsection (f).
(g) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with respect to the
Securities of any series to all Holders of Securities of such series
in the manner provided in Section 106. Each notice shall include the
name of the successor Trustee with respect to the Securities of such
series and the address of its Corporate Trust Office.
SECTION 911. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of all series, every such
successor Trustee so appointed shall execute, acknowledge and deliver
to the Company, the Guarantor and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company, the Guarantor or
the successor Trustee, such retiring Trustee shall, upon payment of
all sums owed to it, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all)
series, the Company, the Guarantor, the retiring Trustee and each
successor Trustee with respect to the Securities of one or more series
shall execute and deliver an indenture supplemental hereto wherein
each successor Trustee shall accept such appointment and which (1)
shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Trustee all
the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring
Trustee is not retiring with respect to all Securities, shall contain
such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series as to which the
retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee and (3) shall add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust
and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and
delivery of such supplemental indenture the resignation or removal of
the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company, the Guarantor or any
successor Trustee, such retiring Trustee, upon payment of all sums
owed to it, shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
and the Guarantor shall execute any instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts referred to in subsection (a) or (b) of this
Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
SECTION 912. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Trustee, shall
be the successor of the Trustee hereunder, provided such corporation
shall be otherwise qualified and eligible under this Article, without
the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities.
SECTION 913. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If the Trustee shall be or become a creditor of the Company,
the Guarantor or any other obligor upon the Securities (other than by
reason of a relationship described in Section 311(b) of the Trust
Indenture Act), the Trustee shall be subject to any and all applicable
provisions of the Trust Indenture Act regarding the collection of
claims against the Company, the Guarantor or such other obligor. For
purposes of Section 311(b) of the Trust Indenture Act (a) the term
"cash transaction" shall have the meaning provided in Rule 11b-4 under
the Trust Indenture Act, and (b) the term "self-liquidating paper"
shall have the meaning provided in Rule 11b-6 under the Trust
Indenture Act.
SECTION 914. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents
with respect to the Securities of one or more series, or any Tranche
thereof, which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series or Tranche issued upon original
issuance, exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid
and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee
by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and the
Guarantor and shall at all times be a corporation organized and doing
business under the laws of the United States of America, any State or
territory thereof or the District of Columbia or the Commonwealth of
Puerto Rico, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or
State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of
said supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this
Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any corporation
succeeding to the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating Agent,
provided such corporation shall be otherwise eligible under this
Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee, the Company and the Guarantor.
The Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating Agent,
the Company and the Guarantor. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and the
Guarantor. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers
and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
Unless appointed at the request of the Company pursuant to
the last paragraph of this Section 914, the Trustee agrees to pay to
each Authenticating Agent from time to time reasonable compensation
for its services under this Section, and the Trustee shall be entitled
to be reimbursed for such payments, in accordance with and subject to
the provisions of Section 907.
The provisions of Sections 308, 904 and 905 shall be
applicable to each Authenticating Agent.
If an appointment with respect to the Securities of one or
more series, or any Tranche thereof, shall be made pursuant to this
Section, the Securities of such series or Tranche may have endorsed
thereon, in addition to the Trustee's certificate of authentication,
an alternate certificate of authentication substantially in the
following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
As Trustee
By______________________
As Authenticating
Agent
By______________________
Authorized Officer
If all of the Securities of a series may not be originally
issued at one time, and if the Trustee does not have an office capable
of authenticating Securities upon original issuance located in a Place
of Payment where the Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so requested by
the Company in writing (which writing need not comply with Section 102
and need not be accompanied by an Opinion of Counsel), shall appoint,
in accordance with this Section and in accordance with such procedures
as shall be acceptable to the Trustee, an Authenticating Agent having
an office in a Place of Payment designated by the Company with respect
to such series of Securities.
SECTION 915. CO-TRUSTEE AND SEPARATE TRUSTEES.
At any time or times, for the purpose of meeting the legal
requirements of any applicable jurisdiction, the Company, the
Guarantor and the Trustee shall have power to appoint, and, upon the
written request of the Trustee or of the Holders of at least 33% in
principal amount of the Securities then Outstanding, the Company and
the Guarantor shall for such purpose join with the Trustee in the
execution and delivery of all instruments and agreements necessary or
proper to appoint, one or more Persons approved by the Trustee either
to act as co-trustee, jointly with the Trustee, or to act as separate
trustee, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons, in
the capacity aforesaid, any property, title, right or power deemed
necessary or desirable, subject to the other provisions of this
Section. If the Company or the Guarantor does not join in such
appointment within 15 days after the receipt by it of a request so to
do, or if an Event of Default shall have occurred and be continuing,
the Trustee alone shall have power to make such appointment.
Should any written instrument or instruments from the
Company or the Guarantor be required by any co-trustee or separate
trustee to more fully confirm to such co-trustee or separate trustee
such property, title, right or power, any and all such instruments
shall, on request, be executed, acknowledged and delivered by the
Company or the Guarantor, as the case may be.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the
following conditions:
(a) the Securities shall be authenticated and delivered, and
all rights, powers, duties and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, the Trustee hereunder, shall
be exercised solely, by the Trustee;
(b) the rights, powers, duties and obligations hereby
conferred or imposed upon the Trustee in respect of any property
covered by such appointment shall be conferred or imposed upon and
exercised or performed either by the Trustee or by the Trustee and
such co-trustee or separate trustee jointly, as shall be provided in
the instrument appointing such co-trustee or separate trustee, except
to the extent that under any law of any jurisdiction in which any
particular act is to be performed, the Trustee shall be incompetent or
unqualified to perform such act, in which event such rights, powers,
duties and obligations shall be exercised and performed by such
co-trustee or separate trustee.
(c) the Trustee at any time, by an instrument in writing
executed by it, with the concurrence of the Company and the Guarantor,
may accept the resignation of or remove any co-trustee or separate
trustee appointed under this Section, and, if an Event of Default
shall have occurred and be continuing, the Trustee shall have power to
accept the resignation of, or remove, any such co-trustee or separate
trustee without the concurrence of the Company or the Guarantor. Upon
the written request of the Trustee, the Company and the Guarantor
shall join with the Trustee in the execution and delivery of all
instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate
trustee so resigned or removed may be appointed in the manner provided
in this Section;
(d) no co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Trustee, or
any other such trustee hereunder, and the Trustee shall not be
personally liable by reason of any act or omission of any such
co-trustee or separate trustee; and
(e) any Act of Holders delivered to the Trustee shall be
deemed to have been delivered to each such co-trustee and separate
trustee.
ARTICLE TEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTOR
SECTION 1001. LISTS OF HOLDERS.
Semiannually, not later than June 30 and December 31 in each
year, and at such other times as the Trustee may request in writing,
the Company and the Guarantor shall furnish or cause to be furnished
to the Trustee information as to the names and addresses of the
Holders, and the Trustee shall preserve such information and similar
information received by it in any other capacity and afford to the
Holders access to information so preserved by it, all to such extent,
if any, and in such manner as shall be required by the Trust Indenture
Act; provided, however, that no such list need be furnished so long as
the Trustee shall be the Security Registrar.
SECTION 1002. REPORTS BY TRUSTEE, COMPANY AND GUARANTOR.
The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be
required pursuant to the Trust Indenture Act at the time and in the
manner provided pursuant thereto. Reports so required to be
transmitted at stated intervals of not more than 12 months shall be
transmitted no later than November 15 in each calendar year with
respect to the 12-month period ending on the preceding September 15,
commencing September 15, 1998. A copy of each such report shall, at
the time of such transmission to Holders, be filed by the Trustee with
each stock exchange upon which any Securities are listed, with the
Commission and with the Company and the Guarantor. The Company and the
Guarantor will notify the Trustee when any Securities are listed on
any stock exchange.
The Company and the Guarantor shall file with the Trustee
(within thirty (30) days after filing with the Commission in the case
of reports that pursuant to the Trust Indenture Act must be filed with
the Commission and furnished to the Trustee) and transmit to the
Holders, such other information, reports and other documents, if any,
at such times and in such manner, as shall be required by the Trust
Indenture Act.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, CONVEYANCE, OR OTHER TRANSFER
SECTION 1101. COMPANY OR GUARANTOR MAY CONSOLIDATE, ETC.,
ONLY ON CERTAIN TERMS.
Neither the Company nor the Guarantor shall consolidate with
or merge into any other Person or convey, transfer or lease its
properties and assets substantially as an entirety to any Person,
unless
(a) the Person formed by such consolidation or into which
the Company or Guarantor, as the case may be, is merged or the
Person which acquires by conveyance or transfer, or which leases,
the properties and assets of the Company or the Guarantor, as the
case may be, substantially as an entirety shall be a Person
organized and existing under the laws of the United States, any
State thereof or the District of Columbia, and shall expressly
assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee,
the due and punctual payment of the principal of and premium, if
any, and interest, if any, on all Outstanding Securities (or the
Guarantees endorsed thereon, as the case may be) and the
performance of every covenant of this Indenture on the part of
the Company or the Guarantor, as the case may be, to be performed
or observed;
(b) immediately after giving effect to such transaction and
treating any indebtedness for borrowed money which becomes an
obligation of the Company or the Guarantor as a result of such
transaction as having been incurred by the Company or the
Guarantor at the time of such transaction, no Event of Default,
and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be
continuing; and
(c) the Company or the Guarantor, as the case may be, shall
have delivered to the Trustee an Officer's Certificate and an
Opinion of Counsel, each stating that such consolidation, merger,
conveyance or other transfer or lease and such indenture
supplemental hereto complies with this Article and that all
conditions precedent herein provided for relating to such
transactions have been complied with.
SECTION 1102. SUCCESSOR PERSON SUBSTITUTED.
Upon any consolidation by the Company or the Guarantor with
or merger by the Company or the Guarantor into any other Person or any
conveyance or other transfer or lease of the properties and assets of
the Company or the Guarantor substantially as an entirety in
accordance with Section 1101, the successor Person formed by such
consolidation or into which the Company or the Guarantor, as the case
may be, is merged or the Person to which such conveyance, or other
transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company or the
Guarantor, as the case may be, under this Indenture with the same
effect as if such successor Person had been named as the Company or
the Guarantor, as the case may be, herein, and thereafter, except in
the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities
Outstanding hereunder (or the Guarantees endorsed thereon, as the case
may be).
SECTION 1103. MERGER INTO COMPANY OR GUARANTOR.
Nothing in this Indenture shall be deemed to prevent or
restrict any consolidation or merger after the consummation of which
the Company or the Guarantor, as the case may be, would be the
surviving or resulting corporation or any conveyance or other
transfer, or lease of any part of the properties of the Company or the
Guarantor, as the case may be, which does not constitute the entirety,
or substantially the entirety, thereof.
ARTICLE TWELVE
SUPPLEMENTAL INDENTURES
SECTION 1201. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, the
Guarantor and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the
Company or the Guarantor, as the case may be, and the assumption
by any such successor of the covenants of the Company or the
Guarantor, as the case may be, herein and in the Securities or
the Guarantees endorsed thereon, all as provided in Article
Eleven; or
(b) to add one or more covenants of the Company or the
Guarantor or other provisions for the benefit of the Holders of
all or any series of Securities, or any Tranche thereof or to
surrender any right or power herein conferred upon the Company or
the Guarantor (and if such covenants are to be for the benefit of
less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such
series); or
(c) to add any additional Events of Default with respect to
all or any series of Securities Outstanding hereunder (and if
such additional Events of Default are to be for the benefit of
less than all series of Securities, stating that such additional
Events of Default are expressly being included solely for the
benefit of such series); or
(d) to change or eliminate any provision of this Indenture
or to add any new provision to this Indenture; provided, however,
that if such change, elimination or addition shall adversely
affect the interests of the Holders of Securities of any series
or Tranche Outstanding on the date of such supplemental indenture
in any material respect, such change, elimination or addition
shall become effective with respect to such series or Tranche
only pursuant to the provisions of Section 1202 hereof or when no
Security of such series or Tranche remains Outstanding; or
(e) to provide collateral security for the Securities of any
series; or
(f) to establish the form or terms of Securities of any
series or Tranche or any Guarantees as contemplated by Sections
201 and 301; or
(g) to provide for the authentication and delivery of bearer
securities and coupons appertaining thereto representing
interest, if any, thereon and for the procedures for the
registration, exchange and replacement thereof and for the giving
of notice to, and the solicitation of the vote or consent of, the
holders thereof, and for any and all other matters incidental
thereto; or
(h) to evidence and provide for the acceptance of
appointment hereunder by a separate or successor Trustee with
respect to the Securities of one or more series and to add to or
change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 911(b); or
(i) to provide for the procedures required to permit the
Company to utilize, at its option, a non certificated system of
registration for all, or any series or Tranche of, the
Securities; or
(j) to change any place or places where (1) the principal of
and premium, if any, and interest, if any, on all or any series
of Securities, or any Tranche thereof, shall be payable, (2) all
or any series of Securities, or any Tranche thereof, may be
surrendered for registration of transfer, (3) all or any series
of Securities, or any Tranche thereof, may be surrendered for
exchange and (4) notices and demands to or upon the Company or
the Guarantor in respect of all or any series of Securities, or
any Tranche thereof, and this Indenture may be served; or
(k) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any
other provision herein, or to make any other changes to the
provisions hereof or to add other provisions with respect to
matters or questions arising under this Indenture, provided that
such other changes or additions shall not adversely affect the
interests of the Holders of Securities of any series or Tranche
in any material respect.
Without limiting the generality of the foregoing, if the
Trust Indenture Act as in effect at the date of the execution and
delivery of this Indenture or at any time thereafter shall be amended
and
(x) if any such amendment shall require one or more changes
to any provisions hereof or the inclusion herein of any
additional provisions, or shall by operation of law be deemed to
effect such changes or incorporate such provisions by reference
or otherwise, this Indenture shall be deemed to have been amended
so as to conform to such amendment to the Trust Indenture Act,
and the Company, the Guarantor and the Trustee may, without the
consent of any Holders, enter into an indenture supplemental
hereto to evidence such amendment hereof; or
(y) if any such amendment shall permit one or more changes
to, or the elimination of, any provisions hereof which, at the
date of the execution and delivery hereof or at any time
thereafter, are required by the Trust Indenture Act to be
contained herein or are contained herein to reflect any provision
of the Trust Indenture Act as in effect at such date, this
Indenture shall be deemed to have been amended to effect such
changes or elimination, and the Company, the Guarantor and the
Trustee may, without the consent of any Holders, enter into an
indenture supplemental hereto to this Indenture to effect such
changes or elimination or evidence such amendment.
SECTION 1202. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
Subject to the provisions of Section 1201, with the consent
of the Holders of not less than a majority in aggregate principal
amount of the Securities of all series then Outstanding under this
Indenture, considered as one class, by Act of said Holders delivered
to the Company, the Guarantor and the Trustee, the Company and the
Guarantor, when authorized by Board Resolutions, and the Trustee may
enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture; provided,
however, that if there shall be Securities of more than one series
Outstanding hereunder and if a proposed supplemental indenture shall
directly affect the rights of the Holders of Securities of one or
more, but less than all, of such series, then the consent only of the
Holders of a majority in aggregate principal amount of the Outstanding
Securities of all series so directly affected, considered as one
class, shall be required; and provided, further, that if the
Securities of any series shall have been issued in more than one
Tranche and if the proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or more, but
less than all, of such Tranches, then the consent only of the Holders
of a majority in aggregate principal amount of the Outstanding
Securities of all Tranches so directly affected, considered as one
class, shall be required; and provided, further, that no such
supplemental indenture shall, without the consent of the Holder of
each Outstanding Security of each series or Tranche so directly
affected,
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security (other
than pursuant to the terms thereof), or reduce the principal
amount thereof or the rate of interest thereon (or the amount of
any installment of interest thereon) or change the method of
calculating such rate or reduce any premium payable upon the
redemption thereof, or reduce the amount of the principal of a
Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to
Section 802, or change the coin or currency (or other property),
in which any Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the
Redemption Date), or
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series or any Tranche thereof, the
consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of which is
required for any waiver of compliance with any provision of this
Indenture or of any default hereunder and its consequences, or
reduce the requirements of Section 1304 for quorum or voting, or
(c) modify any of the provisions of this Section, Section
606 or Section 813 with respect to the Securities of any series
or any Tranche thereof, except to increase the percentages in
principal amount referred to in this Section or such other
Sections or to provide that other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of
each Outstanding Security affected thereby; provided, however,
that this clause shall not be deemed to require the consent of
any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section, or the deletion
of this proviso, in accordance with the requirements of Sections
911(b) and 1201(h).
A supplemental indenture which (x) changes or eliminates any covenant
or other provision of this Indenture which has expressly been included
solely for the benefit of the Holders of, or which is to remain in
effect only so long as there shall be Outstanding, Securities of one
or more particular series, or one or more Tranches thereof, or (y)
modifies the rights of the Holders of Securities of such series or
Tranches with respect to such covenant or other provision, shall be
deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series or Tranche.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
SECTION 1203. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 901)
shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall
not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties, immunities or liabilities
under this Indenture or otherwise.
SECTION 1204. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this
Article this Indenture shall be modified in accordance therewith, and
such supplemental indenture shall form a part of this Indenture for
all purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby. Any
supplemental indenture permitted by this Article may restate this
Indenture in its entirety, and, upon the execution and delivery
thereof, any such restatement shall supersede this Indenture as
theretofore in effect for all purposes.
SECTION 1205. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture Act
as then in effect.
SECTION 1206. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series, or any Tranche thereof,
authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the
Trustee, bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture. If the Company and
the Guarantor shall so determine, new Securities of any series, or any
Tranche thereof, so modified as to conform, in the opinion of the
Trustee, the Company and Guarantor, to any such supplemental indenture
may be prepared and executed by the Company (with Guarantees of the
Guarantor endorsed thereon), and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series or
Tranche.
SECTION 1207. MODIFICATION WITHOUT SUPPLEMENTAL INDENTURE.
To the extent, if any, that the terms of any particular
series of Securities shall have been established in or pursuant to a
Board Resolution or an Officer's Certificate pursuant to a
supplemental indenture or Board Resolution as contemplated by Section
301, and not in an indenture supplemental hereto, additions to,
changes in or the elimination of any of such terms may be effected by
means of a supplemental Board Resolution or Officer's Certificate, as
the case may be, delivered to, and accepted by, the Trustee; provided,
however, that such supplemental Board Resolution or Officer's
Certificate shall not be accepted by the Trustee or otherwise be
effective unless all conditions set forth in this Indenture which
would be required to be satisfied if such additions, changes or
elimination were contained in a supplemental indenture shall have been
appropriately satisfied. Upon the acceptance thereof by the Trustee,
any such supplemental Board Resolution or Officer's Certificate shall
be deemed to be a "supplemental indenture" for purposes of Section
1204 and 1206.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, may be called at any time
and from time to time pursuant to this Article to make, give or take
any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be made, given or taken
by Holders of Securities of such series or Tranches.
SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Securities of one or more, or all, series, or any Tranche or Tranches
thereof, for any purpose specified in Section 1301, to be held at such
time and at such place in the Borough of Manhattan, The City of New
York, as the Trustee shall determine, or, with the approval of the
Company, at any other place. Notice of every such meeting, setting
forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 106, not less than 21 nor more than 180
days prior to the date fixed for the meeting.
(b) If the Trustee shall have been requested to call a
meeting of the Holders of Securities of one or more, or all, series,
or any Tranche or Tranches thereof, by the Company, the Guarantor or
by the Holders of 33% in aggregate principal amount of all of such
series and Tranches, considered as one class, for any purpose
specified in Section 1301, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have given the notice of such meeting within 21
days after receipt of such request or shall not thereafter proceed to
cause the meeting to be held as provided herein, then the Company, the
Guarantor or the Holders of Securities of such series and Tranches in
the amount above specified, as the case may be, may determine the time
and the place in the Borough of Manhattan, The City of New York, or in
such other place as shall be determined or approved by the Company or
the Guarantor, for such meeting and may call such meeting for such
purposes by giving notice thereof as provided in subsection (a) of
this Section.
(c) Any meeting of Holders of Securities of one or more, or
all, series, or any Tranche or Tranches thereof, shall be valid
without notice if the Holders of all Outstanding Securities of such
series or Tranches are present in person or by proxy and if
representatives of the Company, the Guarantor and the Trustee are
present, or if notice is waived in writing before or after the meeting
by the Holders of all Outstanding Securities of such series, or by
such of them as are not present at the meeting in person or by proxy,
and by the Company, the Guarantor and the Trustee.
SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of
Securities of one or more, or all, series, or any Tranche or Tranches
thereof, a Person shall be (a) a Holder of one or more Outstanding
Securities of such series or Tranches, or (b) a Person appointed by an
instrument in writing as proxy for a Holder or Holders of one or more
Outstanding Securities of such series or Tranches by such Holder or
Holders. The only Persons who shall be entitled to attend any meeting
of Holders of Securities of any series or Tranche shall be the Persons
entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives
of the Company and the Guarantor and their counsel.
SECTION 1304. QUORUM; ACTION.
The Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of the series and
Tranches with respect to which a meeting shall have been called as
hereinbefore provided, considered as one class, shall constitute a
quorum for a meeting of Holders of Securities of such series and
Tranches; provided, however, that if any action is to be taken at such
meeting which this Indenture expressly provides may be taken by the
Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of such series and
Tranches, considered as one class, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding Securities
of such series and Tranches, considered as one class, shall constitute
a quorum. In the absence of a quorum within one hour of the time
appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series and Tranches, be
dissolved. In any other case the meeting may be adjourned for such
period as may be determined by the chairman of the meeting prior to
the adjournment of such meeting. In the absence of a quorum at any
such adjourned meeting, such adjourned meeting may be further
adjourned for such period as may be determined by the chairman of the
meeting prior to the adjournment of such adjourned meeting. Except as
provided by Section 1305(e), notice of the reconvening of any meeting
adjourned for more than 30 days shall be given as provided in Section
1302(a) not less than ten days prior to the date on which the meeting
is scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall state expressly the percentage, as provided
above, of the principal amount of the Outstanding Securities of such
series and Tranches which shall constitute a quorum.
Except as limited by Section 1202, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of
the Holders of a majority in aggregate principal amount of the
Outstanding Securities of the series and Tranches with respect to
which such meeting shall have been called, considered as one class;
provided, however, that, except as so limited, any resolution with
respect to any action which this Indenture expressly provides may be
taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of such
series and Tranches, considered as one class, may be adopted at a
meeting or an adjourned meeting duly reconvened and at which a quorum
is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities
of such series and Tranches, considered as one class.
Any resolution passed or decision taken at any meeting of
Holders of Securities duly held in accordance with this Section shall
be binding on all the Holders of Securities of the series and Tranches
with respect to which such meeting shall have been held, whether or
not present or represented at the meeting.
SECTION 1305. ATTENDANCE AT MEETINGS; DETERMINATION OF VOTING RIGHTS;
CONDUCT AND ADJOURNMENT OF MEETINGS.
(a) Attendance at meetings of Holders of Securities may be
in person or by proxy; and, to the extent permitted by law, any such
proxy shall remain in effect and be binding upon any future Holder of
the Securities with respect to which it was given unless and until
specifically revoked by the Holder or future Holder of such Securities
before being voted.
(b) Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities in regard to proof
of the holding of such Securities and of the appointment of proxies
and in regard to the appointment and duties of inspectors of votes,
the submission and examination of proxies, certificates and other
evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate. Except as
otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 104
and the appointment of any proxy shall be proved in the manner
specified in Section 104. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other
proof.
(c) The Trustee shall, by an instrument in writing, appoint
a temporary chairman of the meeting, unless the meeting shall have
been called by the Company or the Guarantor or by Holders as provided
in Section 1302(b), in which case the Company or the Guarantor or the
Holders of Securities of the series and Tranches calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be
elected by vote of the Persons entitled to vote a majority in
aggregate principal amount of the Outstanding Securities of all series
and Tranches represented at the meeting, considered as one class.
(d) At any meeting each Holder or proxy shall be entitled to
one vote for each $1,000 principal amount of Securities held or
represented by him; provided, however, that no vote shall be cast or
counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security or proxy.
(e) Any meeting duly called pursuant to Section 1302 at
which a quorum is present may be adjourned from time to time by
Persons entitled to vote a majority in aggregate principal amount of
the Outstanding Securities of all series and Tranches represented at
the meeting, considered as one class; and the meeting may be held as
so adjourned without further notice.
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of
Holders shall be by written ballots on which shall be subscribed the
signatures of the Holders or of their representatives by proxy and the
principal amounts and serial numbers of the Outstanding Securities, of
the series and Tranches with respect to which the meeting shall have
been called, held or represented by them. The permanent chairman of
the meeting shall appoint two inspectors of votes who shall count all
votes cast at the meeting for or against any resolution and who shall
make and file with the secretary of the meeting their verified written
reports of all votes cast at the meeting. A record, in duplicate, of
the proceedings of each meeting of Holders shall be prepared by the
secretary of the meeting and there shall be attached to said record
the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge
of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1302 and, if
applicable, Section 1304. Each copy shall be signed and verified by
the affidavits of the permanent chairman and secretary of the meeting
and one such copy shall be delivered to the Company, and another to
the Trustee to be preserved by the Trustee, the latter to have
attached thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters
therein stated.
SECTION 1307. ACTION WITHOUT MEETING.
In lieu of a vote of Holders at a meeting as hereinbefore
contemplated in this Article, any request, demand, authorization,
direction, notice, consent, waiver or other action may be made, given
or taken by Holders by written instruments as provided in Section 104.
ARTICLE FOURTEEN
GUARANTEE
SECTION 1401. GUARANTEE.
The Guarantor hereby unconditionally guarantees to each
Holder of a Security authenticated and delivered by the Trustee, and
to the Trustee on behalf of such Holder, the due and punctual payment
of the principal of, and premium, if any, and interest, if any, on the
Securities of such series when and as the same shall become due and
payable, whether at the Stated Maturity, by declaration of
acceleration, call for redemption, or otherwise, in accordance with
the terms of such Security and of this Indenture. In case of the
failure of the Company punctually to make any such payment, the
Guarantor hereby agrees to cause such payment to be made punctually
when and as the same shall become due and payable, whether at the
Stated Maturity or by declaration of acceleration, call for redemption
or otherwise, and as if such payment were made by the Company.
The Guarantor hereby agrees that its obligations hereunder
shall be absolute and unconditional irrespective of, and shall be
unaffected by, any invalidity, irregularity or unenforceability of
such Security or this Indenture, any failure to enforce the provisions
of such Security or this Indenture, or any waiver, modification or
indulgence granted to the Company with respect thereto, by the Holder
of such Security or the Trustee or any other circumstance which may
otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor; provided, however, that notwithstanding the
foregoing, no such waiver, modification or indulgence shall, without
the consent of the Guarantor, increase the principal amount of such
Security, or increase the interest rate thereon, or change any
redemption provisions thereof (including any change to increase any
premium payable upon redemption thereof), or change the Stated
Maturity thereof, or increase the principal amount of any Discount
Security that would be due and payable upon a declaration of
acceleration or the maturity thereof pursuant to Article Eight of this
Indenture.
The Guarantor hereby waives the benefits of diligence,
presentment, demand for payment, any requirement that the Trustee or
any of the Holders exhaust any right or take any action against the
Company or any other Person, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require
a proceeding first against the Company, protest or notice with respect
to any Security or the indebtedness evidenced thereby and all demands
whatsoever, and covenants that this Guarantee will not be discharged
in respect of any Security except by complete performance of the
obligations contained in such Security and in this Guarantee. This
Guarantee shall constitute a guaranty of payment and not of
collection. The Guarantor hereby agrees that, in the event of a
default in payment of principal, or premium, if any, or interest, if
any, on any Security, whether at its Stated Maturity, by declaration
of acceleration, call for redemption, or otherwise, legal proceedings
may be instituted by the Trustee on behalf of, or by, the Holder of
such Security, subject to the terms and conditions set forth in this
Indenture, directly against the Guarantor to enforce this Guarantee
without first proceeding against the Company.
The obligations of the Guarantor hereunder with respect to
any Security shall be continuing and irrevocable until the date upon
which the entire principal of, premium, if any, and interest on such
Security has been, or has been deemed pursuant to the provisions of
Article Seven of this Indenture to have been, paid in full or
otherwise discharged.
The Guarantor shall be subrogated to all rights of the
Holders of the Securities upon which its Guarantee is endorsed against
the Company in respect of any amounts paid by the Guarantor on account
of such Securities pursuant to the provisions of its Guarantee or this
Indenture; provided, however, that the Guarantor shall not be entitled
to enforce or to receive any payments arising out of, or based upon,
such right of subrogation until the principal of, and premium, if any,
and interest, if any, on all Securities issued hereunder shall have
been paid in full.
This Guarantee shall remain in full force and effect and
continue notwithstanding any petition filed by or against the Company
for liquidation or reorganization, the Company becoming insolvent or
making an assignment for the benefit of creditors or a receiver or
trustee being appointed for all or any significant part of the
Company's assets, and shall, to the fullest extent permitted by law,
continue to be effective or reinstated, as the case may be, if at any
time payment of any Security, is, pursuant to applicable law,
rescinded or reduced in amount, or must otherwise be restored or
returned by any Holder of such Security, whether as a "voidable
preference," "fraudulent transfer," or otherwise, all as though such
payment or performance had not been made. In the event that any
payment, or any part thereof, is rescinded, reduced, restored or
returned on a Security, such Security shall, to the fullest extent
permitted by law, be reinstated and deemed paid only by such amount
paid and not so rescinded, reduced, restored or returned.
SECTION 1402. EXECUTION AND DELIVERY OF GUARANTEE.
The Guarantee to be endorsed on the Securities of each
series shall include the terms of the Guarantee set forth in Section
1401 and any other terms that may be set forth as established pursuant
to Section 301. The Guarantor hereby agrees to execute its Guarantee,
in a form established pursuant to Section 201, to be endorsed on each
Security authenticated and delivered by the Trustee.
The Guarantee shall be executed on behalf of the Guarantor
by an Authorized Officer of the Guarantor. The signature of any such
officer on the Guarantee may be manual or facsimile.
A Guarantee bearing the manual or facsimile signature of an
individual who was at the time of execution an Authorized Officer of
the Guarantor shall bind the Guarantor, notwithstanding that any such
individual has ceased to be an Authorized Officer prior to the
authentication and delivery of the Security on which such Guarantee is
endorsed or was not an Authorized Officer at the date of such
Guarantee.
The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Guarantee endorsed thereon on behalf of the Guarantor. The Guarantor
hereby agrees that its Guarantee set forth in Section 1401 shall
remain in full force and effect notwithstanding any failure to endorse
a Guarantee on any Security. The Guarantor by its execution of this
Indenture hereby authorizes the Company, in the name and on behalf of
the Guarantor, to confirm the applicable Guarantee to the Holder of
each Security authenticated and delivered hereunder by its execution
and delivery of each such Security, with such Guarantee endorsed
thereon, authenticated and delivered by the Trustee.
ARTICLE FIFTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 1501. LIABILITY SOLELY CORPORATE.
No recourse shall be had for the payment of the principal of
or premium, if any, or interest, if any, on any Securities, any
Guarantees or any part thereof, or for any claim based thereon or
otherwise in respect thereof, or of the indebtedness represented
thereby, or upon any obligation, covenant or agreement under this
Indenture, against any incorporator, stockholder, officer or director,
as such, past, present or future of the Company or the Guarantor or of
any predecessor or successor of either of them (either directly or
through the Company or the Guarantor, as the case may be, or a
predecessor or successor of either of them), whether by virtue of any
constitutional provision, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being
expressly agreed and understood that this Indenture and all the
Securities and Guarantees are solely corporate obligations, and that
no personal liability whatsoever shall attach to, or be incurred by,
any incorporator, stockholder, officer or director, past, present or
future, of the Company or of the Guarantor or of any predecessor or
successor corporation, either directly or indirectly through the
Company or the Guarantor or any predecessor or successor of either of
them, because of the indebtedness hereby authorized or under or by
reason of any of the obligations, covenants or agreements contained in
this Indenture or in any of the Securities or Guarantees or to be
implied herefrom or therefrom, and that any such personal liability is
hereby expressly waived and released as a condition of, and as part of
the consideration for, the execution of this Indenture and the
issuance of the Securities and the Guarantees.
-------------------------
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one
and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to
be hereunto affixed and attested, all as of the day and year first
above written.
PP&L CAPITAL FUNDING, INC.
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
[SEAL] Title: Vice President
ATTEST:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------
PP&L RESOURCES, INC.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------
[SEAL] Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice
President - Financial
ATTEST:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------
THE CHASE MANHATTAN BANK,
as Trustee
By:/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Vice
President
[SEAL]
ATTEST
/s/ ▇. ▇▇▇▇▇▇▇
---------------------------
▇. ▇▇▇▇▇▇▇
Trust Officer