WESTERN RESOURCES, INC.
TO
TRUSTEE
________________________
INDENTURE
DATED AS OF , 1995
________________________
DEFERRABLE INTEREST SUBORDINATED DEBENTURES
Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Indenture
__Act Section__ _Section_
Section 310(a)(1)..................................... 609
(a)(2).................................. 609
(a)(3).................................. Not Applicable
(a)(4).................................. Not Applicable
(b)..................................... 608, 610
Section 311(a)........................................ 613
(b)..................................... 613
Section 312(a)........................................ 701, 702(a)
(b)..................................... 702(b)
(c)..................................... 702(c)
Section 313(a)........................................ 703(a)
(b)..................................... 703(a)
(c)..................................... 703(a)
(d)..................................... 703(b)
Section 314(a)........................................ 704
(b)..................................... Not Applicable
(c)(1).................................. 102
(c)(2).................................. 102
(c)(3).................................. Not Applicable
(d)..................................... Not Applicable
(e)..................................... 101, 102
Section 315(a)........................................ 601
(b)..................................... 602
(c)..................................... 601
(d)..................................... 601
(e)..................................... 514
Section 316(a)........................................ 101
(a)(1)(A)............................... 502, 512
(a)(1)(B)............................... 513
(a)(2).................................. Not Applicable
(b)..................................... 508
(c)..................................... 104(c)
Section 317(a)(1)..................................... 503
(a)(2).................................. 504
(b)..................................... 1003
Section 318(a)........................................ 107
___________________
Note: This reconciliation and tie shall not, for any purposes,
be deemed to be a part of this Indenture.
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions...................................... 1
SECTION 102. Compliance Certificates and
Opinions...................................... 10
SECTION 103. Form of Documents Delivered to
Trustee....................................... 10
SECTION 104. Acts of Holders; Record Dates.................... 11
SECTION 105. Notices, Etc. to Trustee and the
Company....................................... 12
SECTION 106. Notice to Holders; Waiver........................ 13
SECTION 107. Conflict with Trust Indenture Act................ 14
SECTION 108. Effect of Headings and Table of
Contents...................................... 14
SECTION 109. Successors and Assigns........................... 14
SECTION 110. Separability Clause.............................. 14
SECTION 111. Benefits of Indenture............................ 14
SECTION 112. GOVERNING LAW.................................... 15
SECTION 113. Legal Holidays................................... 15
ARTICLE TWO
FORM OF SECURITIES
SECTION 201. Forms Generally.................................. 15
SECTION 202. Form of Legend for Global
Securities.................................... 16
SECTION 203. Form of Trustee's Certificate of
Authentication................................ 16
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in
Series........................................ 17
SECTION 302. Denominations.................................... 20
SECTION 303. Execution, Authentication, Delivery
and Dating.................................... 20
SECTION 304. Temporary Securities............................. 22
SECTION 305. Registration, Registration of
Transfer and Exchange......................... 23
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Page
SECTION 306. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, Lost and Sto-
len Securities................................ 25
SECTION 307. Payment of Interest; Interest
Rights Preserved.............................. 26
SECTION 308. Persons Deemed Owners............................ 28
SECTION 309. Cancellation..................................... 28
SECTION 310. Computation of Interest.......................... 28
SECTION 311. Right of Set-Off................................. 29
SECTION 312. CUSIP Numbers.................................... 29
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of
Indenture..................................... 29
SECTION 402. Application of Trust Money....................... 31
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default................................ 31
SECTION 502. Acceleration of Maturity; Rescis-
sion and Annulment............................ 33
SECTION 503. Collection of Indebtedness and
Suits for Enforcement by Trustee.............. 34
SECTION 504. Trustee May File Proofs of Claim................. 35
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities...................... 35
SECTION 506. Application of Money Collected................... 36
SECTION 507. Limitation on Suits.............................. 36
SECTION 508. Unconditional Right of Holders to
Receive Principal and Interest................ 37
SECTION 509. Restoration of Rights and Remedies............... 37
SECTION 510. Rights and Remedies Cumulative................... 38
SECTION 511. Delay or Omission Not Waiver..................... 38
SECTION 512. Control by Holders............................... 38
SECTION 513. Waiver of Past Defaults.......................... 38
SECTION 514. Undertaking for Costs............................ 39
SECTION 515. Waiver of Stay or Extension Laws................. 39
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.............. 40
SECTION 602. Notice of Defaults............................... 41
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Page
SECTION 603. Certain Rights of the Trustee.................... 42
SECTION 604. Not Responsible for Recitals or
Issuance of Securities........................ 43
SECTION 605. May Hold Securities.............................. 43
SECTION 606. Money Held in Trust.............................. 43
SECTION 607. Compensation and Reimbursement................... 44
SECTION 608. Disqualification; Conflicting
Interests..................................... 44
SECTION 609. Corporate Trustee Required;
Eligibility................................... 45
SECTION 610. Resignation and Removal; Appoint-
ment of Successor............................. 45
SECTION 611. Acceptance of Appointment by
Successor..................................... 47
SECTION 612. Merger, Conversion, Consolidation
or Succession to Business..................... 48
SECTION 613. Preferential Collection of Claims
Against Company............................... 49
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names
and Addresses of Holders...................... 49
SECTION 702. Preservation of Information; Commu-
nications to Holders.......................... 50
SECTION 703. Reports by Trustee............................... 50
SECTION 704. Reports by Company............................... 50
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc. Only
on Certain Terms.............................. 51
SECTION 802. Successor Substituted............................ 52
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without
Consent of Holders............................ 53
SECTION 902. Supplemental Indentures with Con-
sent of Holders............................... 54
SECTION 903. Execution of Supplemental
Indentures.................................... 55
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Page
SECTION 904. Effect of Supplemental Indentures................ 55
SECTION 905. Conformity with Trust Indenture Act.............. 56
SECTION 906. Reference in Securities to Supple-
mental Indentures............................. 56
ARTICLE TEN
COVENANTS; REPRESENTATIONS AND WARRANTIES
SECTION 1001. Payment of Principal and Interest................ 56
SECTION 1002. Maintenance of Office or Agency.................. 56
SECTION 1003. Money for Payments on Securities to
Be Held in Trust.............................. 57
SECTION 1004. Statement by Officers as to Default.............. 58
SECTION 1005. Additional Covenants ............................ 59
ARTICLE ELEVEN
SUBORDINATION OF SECURITIES
SECTION 1101. Securities Subordinate to Senior
Indebtedness.................................. 60
SECTION 1102. Payment Over of Proceeds upon Dis-
solution, etc................................. 60
SECTION 1103. No Payment When Specified Senior
Indebtedness in Default....................... 62
SECTION 1104. Payment Permitted if No Default ................. 63
SECTION 1105. Subrogation to Rights of Holders of
Senior Indebtedness........................... 63
SECTION 1106. Provisions Solely to Define Rela-
tive Rights .................................. 64
SECTION 1107. Trustee to Effectuate Subordination.............. 64
SECTION 1108. No Waiver of Subordination
Provisions.................................... 65
SECTION 1109. Notice to Trustee................................ 66
SECTION 1110. Reliance on Judicial Order or Cer-
tificate of Liquidating Agent................. 67
SECTION 1111. Rights of Trustee as a Holder of
Senior Indebtedness; Preservation
of Trustee's Rights........................... 67
SECTION 1112. Article Applicable to Paying Agents.............. 67
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Page
ARTICLE TWELVE
REDEMPTION OF SECURITIES
SECTION 1201. Applicability of Article......................... 68
SECTION 1202. Election to Redeem; Notice to
Trustee....................................... 68
SECTION 1203. Selection by Trustee of Securities
to Be Redeemed................................ 68
SECTION 1204. Notice of Redemption............................. 69
SECTION 1205. Deposit of Redemption Price...................... 70
SECTION 1206. Securities Payable on Redemption
Date.......................................... 70
SECTION 1207. Securities Redeemed in Part...................... 71
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INDENTURE, dated as of , 1995, between West-
ern Resources, Inc., a corporation duly organized and existing
under the laws of the State of Kansas (herein called the "Com-
pany") having its principal office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, and , as Trustee
(herein called the "Trustee"). Unless otherwise defined
herein, with respect to a given series of debentures, all capi-
talized terms used herein shall have the meanings ascribed to
them in the Amended and Restated Trust Agreement of the busi-
ness trust to which the securities of such series have been
issued, the form of which is attached as Annex A hereto.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from
time to time of its debentures (herein called the "Securi-
ties"), to be issued in one or more series to evidence the
loans to be made to the Company of the proceeds from the issu-
ance from time to time by one or more business trusts (each a
"Trust" and, collectively, the "Trusts") of preferred benefi-
cial interests in such Trusts (the "Preferred Securities") and
common beneficial interests in such Trusts (the "Common
Securities").
All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the pur-
chase of the Securities by the Holders thereof, it is mutually
agreed, for the equal and proportionate benefit of all Holders
of the Securities of each series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as other-
wise expressly provided or unless the context otherwise
requires:
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(1) the terms defined in this Article have the mean-
ings assigned to them in this Article and include the plural as
well as the singular;
(2) all other terms used herein which are defined in
the Trust Indenture Act, either directly or by reference
therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance with
generally accepted accounting principles; and
(4) 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.
"Act", when used with respect to any Holder, has the
meaning specified in Section 104.
"Additional Interest" means the sum of Additional
Interest Attributable to Deferral and Additional Interest
Attributable to Taxes.
"Additional Interest Attributable to Deferral" means
interest that shall accrue on any interest on the Securities
that is in arrears for more than one quarter or not paid during
an Extension Period.
"Additional Interest Attributable to Taxes" means, if
a Trust is required to pay any taxes, duties, assessments or
governmental charges of whatever nature (other than withholding
taxes) imposed by the United States or any other taxing author-
ity, such amounts as shall be required so that the net amounts
received by such Trust and available for distribution to hold-
ers of Trust Securities by such Trust after paying such taxes,
duties, assessments or governmental charges shall not be less
than the amounts such Trust would have received had no such
taxes, duties, assessments or governmental charges been
imposed.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For the purposes of this definition, "control" when
used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or
-3-
indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and "con-
trolled" have meanings correlative to the foregoing.
"Board of Directors" means either the board of direc-
tors of the Company or any duly authorized committee of that
board.
"Board Resolution" means a copy of a resolution cer-
tified by the Secretary or an Assistant Secretary of the Com-
pany to have been duly adopted by the Board of Directors, and
delivered to the Trustee.
"Business Day" means a day other than (w) a Saturday
or a Sunday, (x) a day on which banks in New York are autho-
rized or obligated by law or executive order to remain closed,
(y) a day on which the Corporate Trust Office of the Trustee,
or the principal office of the Property Trustee, under the
Trust Agreement, is closed for business or (z) a day on which
the principal office of the Company is closed for business.
"Commission" means the Securities and Exchange Com-
mission, as from time to time constituted, created under the
Exchange Act, or, if at any time after the execution of this
instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Company" means the Person named as the "Company" in
the first paragraph of this instrument until a successor Person
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Company" shall mean such suc-
cessor Person.
"Company Request" or "Company Order" means a written
request or order signed in the name of the Company by its
Chairman, a Vice Chairman, its President or a Vice President
and delivered to the Trustee.
"Corporate Trust Office" means the principal office
of the Trustee in at which at any particular
time its corporate trust business shall be administered and
which at the date of this Indenture is
.
"Defaulted Interest" has the meaning specified in
Section 307.
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"Depositary" means, with respect to Securities of any
series issuable in whole or in part in the form of one or more
Global Securities, a clearing agency registered under the
Exchange Act that is designated to act as Depositary for such
Securities as contemplated by Section 301.
"Event of Default" has the meaning specified in
Section 501.
"Exchange Act" means the Securities Exchange Act of
1934 and any statute successor thereto, as amended from time to
time.
"Extension Period" has the meaning specified in
Section 301.
"Federal Bankruptcy Code" means the Bankruptcy Act of
Title 11 of the United States Code, as amended from time to
time.
"Global Security" means a Security that evidences all
or part of the Securities of any series and bears the legend
set forth in Section 202 (or such other legend as contemplated
by Section 301).
"Holder" means a Person in whose name a Security is
registered in the Securities Register.
"Indenture" means this instrument as originally exe-
cuted or as it may from time to time be supplemented or amended
by one or more indentures supplemental hereto entered into pur-
suant to the applicable provisions hereof, including, for all
purposes of this instrument and any such supplemental inden-
ture, the provisions of the Trust Indenture Act that are deemed
to be a part of and govern this instrument and any such supple-
mental indenture, respectively. The term "Indenture" shall
also include the terms of particular series of Securities
established as contemplated by Section 301.
"Interest Payment Date", when used with respect to
any installment of interest on any Security, means the date
specified in such Security as the fixed date on which an
installment of interest with respect to such Security is due
and payable.
"Investment Company Event" means the occurrence of a
change in law or regulation or a change in interpretation or
-5-
application of law or regulation by any legislative body,
court, governmental agency or regulatory authority (a "Change
in 1940 Act Law") to the effect that a Trust is or will be con-
sidered an "investment company" that is required to be regis-
tered under the Investment Company Act of 1940, as amended,
which Change in 1940 Act Law becomes effective on or after the
date of original issuance of the Preferred Securities issued by
such Trust.
"Maturity", when used with respect to any Security,
means the date on which the principal of such Security becomes
due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, call for
redemption or otherwise.
"Officers' Certificate" means a certificate signed by
(i) the Chairman, a Vice Chairman, the President, a Vice Presi-
dent, or the Treasurer of the Company and (ii) the Secretary or
an Assistant Secretary of the Company and delivered to the
Trustee; provided, however, that such certificate may be signed
by two of the officers or directors listed in clause (i) above
in lieu of being signed by one of such officers or directors
listed in such clause (i) and one of the officers listed in
clause (ii) above. One of the officers signing an Officers'
Certificate given pursuant to Section 1004 shall be the princi-
pal executive, financial or accounting officer of the Company.
Any Officers' Certificate delivered with respect to compliance
with a condition or covenant provided for in this Indenture
shall include:
(a) a statement that each officer signing the Offic-
ers' Certificate has read the covenant or condition and
the definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in
rendering the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opin-
ion, is necessary to enable such officer 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 officer, such condition or covenant has been
complied with.
-6-
"Opinion of Counsel" means a written opinion of ▇▇▇▇-
▇▇▇, who may be counsel for the Company, and who shall be rea-
sonably acceptable to the Trustee.
"Outstanding", when used with respect to Securities,
means, as of the date of determination, all Securities thereto-
fore authenticated and delivered under this Indenture, except:
(i) Securities theretofor cancelled by the Trustee or delivered
to the Trustee for cancellation; (ii) Securities for whose pay-
ment or redemption money or U.S. Government Obligations in the
necessary amount have been theretofor deposited with the Trus-
tee or any Paying Agent (other than the Company) in trust or
set aside and segregated in trust by the Company (if the Com-
pany shall act as its own Paying Agent) for the Holders of such
Securities; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursu-
ant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and (iii) Securities which have been
paid pursuant to Section 1001, or in exchange for or in lieu of
which other Securities have been authenticated and delivered
pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee
proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company.
"Parent Guarantee" means any guarantee that the Com-
pany may enter into with a Trust for the benefit of the holders
of the Preferred Securities of such Trust.
"Paying Agent" means any Person authorized by the
Company to pay the principal of or interest on any Securities
on behalf of the Company. The Paying Agent shall initially be
.
"Person" means any individual, corporation, partner-
ship, joint venture, trust, limited liability company or corpo-
ration, unincorporated organization or government or any agency
or political subdivision thereof.
"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 authen-
ticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall
-7-
be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.
"Preferred Securities" has the meaning specified in
the Recitals to this Indenture.
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such redemp-
tion 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 by or 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.
"Representative" means an indenture trustee or other
trustee, agent or representative for an issue of Senior
Indebtedness.
"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 execu-
tive committee of the board of directors, the chairman of the
trust committee, the president, any vice president, the secre-
tary, any assistant secretary, the treasurer, any assistant
treasurer, the cashier, any assistant cashier, any trust offi-
cer or assistant trust officer, the controller or any assistant
controller or any other officer of the Trustee customarily per-
forming 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 to whom
such matter is referred because of his knowledge of and famil-
iarity with the particular subject.
"Securities" has the meaning specified in the Recit-
als to this Indenture and more particularly means any Securi-
ties authenticated and delivered under this Indenture.
"Securities Register" and "Securities Registrar" have
the respective meanings specified in Section 305.
"Senior Indebtedness" means the principal of, pre-
mium, if any, interest on and any other payment due pursuant to
any of the following, whether outstanding at the date hereof or
-8-
hereafter incurred, created or assumed: (i) all indebtedness
of the Company on a consolidated basis (other than any obliga-
tions to trade creditors) evidenced by notes, debentures, bonds
or other securities sold by the Company for money borrowed and
capitalized lease obligations; (ii) all indebtedness of others
of the kinds described in the preceding clause (i) assumed or
guaranteed in any manner by the Company or in effect guaranteed
by the Company; (iii) all obligations of the Company issued or
assumed as the deferred purchase price of property, all condi-
tional sale obligations of the Company and all obligations of
the Company under any title retention agreement (but excluding
trade accounts payable); (iv) certain obligations of the Com-
pany for the reimbursement of any obligor on any letter of
credit, banker's acceptance, security purchase facility, surety
bond or similar credit transaction entered into in the ordinary
course of business of the Company; and (v) all renewals, exten-
sions or refundings of indebtedness of the kinds described in
any of the preceding clauses (i), (ii), (iii) or (iv), unless,
in the case of any particular indebtedness, capitalized lease
obligation, guarantee, renewal, extension or refunding, the
instrument creating or evidencing the same or the assumption or
guarantee of the same expressly provides that such indebted-
ness, renewal, extension or refunding is subordinated to or is
pari passu with the Securities.
"Special Record Date" for the payment of any
Defaulted Interest means a date fixed by the Trustee pursuant
to Section 307.
"Stated Maturity", when used with respect to any
Security or any installment of interest thereon, means the date
specified in such Security as the fixed date on which the prin-
cipal, together with any accrued and unpaid interest (including
Additional Interest), of such Security or such installment of
interest is due and payable.
"Subsidiary" means any Person a majority of the
equity ownership or the Voting Stock of which is at the time
owned, directly or indirectly, by the Company or by one or more
other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting
stock" means stock which ordinarily has voting power for the
election of directors, whether at all times or only so long as
no senior class of stock has such voting power by reason of any
contingency.
-9-
"Tax Event" means the receipt by a Trust or the Com-
pany, as the case may be, of an Opinion of Counsel experienced
in such matters to the effect that a relevant tax law change
has occurred. For purposes of the preceding sentence a rele-
vant tax law change is any amendment or change to (or offi-
cially proposed amendment or change to) the laws (including
regulations thereunder) of the United States or any political
subdivision or taxing authority thereof, or the publication of
any judicial opinion interpreting such laws (and regulations)
or any written interpretation of such laws (or regulations) by
any governmental authority having jurisdiction to enforce or
administer such laws (or regulations) (including official and
unofficial opinions purporting to apply such laws and regula-
tions to other Persons who have issued securities similar to
the Securities), which amendment, change, proposed amendment or
change, opinion or interpretation could, if valid and enacted or
applied to such Trust or the Company, result in (i) such Trust,
either currently or within 90 days of the date thereof, becom-
ing subject to United States federal income tax with respect to
interest received on the Securities, (ii) interest payable by
the Company on the Securities attributable to the Preferred
Securities, either currently or within 90 days of the date
thereof, becoming nondeductible for United States federal
income tax purposes or (iii) such Trust, either currently or
within 90 days of the date thereof, becoming subject to more
than a de minimis amount of other taxes, duties or other gov-
ernmental charges.
"Trust Agreement" means any agreement establishing a
Trust, as the same may be amended, modified, supplemented or
restated.
"Trust Indenture Act" means the Trust Indenture Act
of 1939 as in force at the date as of which this Indenture was
executed; provided, however, that in the event the Trust Inden-
ture Act of 1939 is amended after such date, "Trust Indenture
Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in
the first paragraph of this Indenture until a successor Trustee
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Trustee" shall mean such suc-
cessor Trustee, 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.
-10-
"U.S. Government Obligations" means securities that
are (x) direct obligations of the United States of America for
the payment of which its full faith and credit is pledged or
(y) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of Amer-
ica, which, in either case, are not callable or redeemable at
the option of the issuer thereof, and shall also include a
depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act of 1933, as amended) as custodian
with respect to any such U.S. Government Obligation or a spe-
cific payment of principal of or interest on any such U.S.
Government Obligation held by such custodian for the account of
the holder of such 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 deposi-
tory receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific pay-
ment of principal of or interest on the U.S. Government Obliga-
tion evidenced by such depository receipt.
"Vice President", when used with respect to the Com-
pany or the Trustee, means any vice president, whether or not
designated by a number or a word or words added before or after
the title "vice president".
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the
Trustee to take any action under any provision of this Inden-
ture, the Company shall furnish to the Trustee such certifi-
▇▇▇▇▇ and opinions as may be required under the Trust Indenture
Act. Each such certificate or opinion shall be given in the
form of an Officers' Certificate, if to be given by an officer
of the Company, or an Opinion of Counsel, if to be given by
counsel, and shall comply with the requirements of the Trust
Indenture Act and any other requirement set forth in this
Indenture.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Per-
son, 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
-11-
such Person may certify or give an opinion with respect to some
matters and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Com-
pany may be based, insofar as it relates to legal matters, upon
a certificate or opinion of, or representations by, counsel,
unless such officer knows, or in the exercise of reasonable
care should know, that the certificate or opinion or represen-
tations with respect to the matters upon which such officer's
certificate or opinion is based are erroneous. Any such cer-
tificate or opinion of counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of,
or representations by, an officer or officers of the Company
stating that the information with respect to such factual mat-
ters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that
the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute
two or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instru-
ment.
SECTION 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Inden-
ture to be given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instru-
ment or instruments are delivered to the Trustee and, where it
is hereby expressly required, to the Company. Such instrument
or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of exe-
cution of any such instrument or of a writing appointing any
such agent shall be sufficient for any purpose of this Inden-
ture and (subject to Section 601) conclusive in favor of the
Trustee and the Company, if made in the manner provided in this
Section.
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(b) The fact and date of the execution by any Person
of any such instrument or writing may be proved by the affida-
vit 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 sign-
ing such instrument or writing acknowledged to him the execu-
tion thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate
or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing
the same, may also be proved in any other manner which the
Trustee deems sufficient.
(c) The Company may, in the circumstances permitted
by the Trust Indenture Act, fix any day as the record date for
the purpose of determining the Holders entitled to give or take
any request, demand, authorization, direction, notice, consent,
waiver or other action, or to vote on any action, authorized or
permitted to be given or taken by Holders. If not set by the
Company prior to the first solicitation of a Holder made by any
Person in respect of any such action, or, in the case of any
such vote, prior to such vote, the record date for any such
action or vote shall be the 30th day (or, if later, the date of
the most recent list of Holders required to be provided pursu-
ant to Section 701) prior to such first solicitation or vote,
as the case may be. With regard to any record date, only the
Holders on such date (or their duly designated proxies) shall
be entitled to give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by
the Securities Register.
(e) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any Secu-
rity shall bind every future Holder of the same Security and
the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
SECTION 105. Notices, Etc. to Trustee and the Company.
Any request, demand, authorization, direction,
notice, consent, waiver or Act or other document provided or
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permitted by this Indenture to be made upon, given or furnished
to, or filed with,
(1) the Trustee by any Holder or by the Company
shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the Trus-
tee at its Corporate Trust Office, Attention: Corporate
Trust Administration, or
(2) the Company by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office
specified in the first paragraph of this Indenture, Atten-
tion: Vice President, Finance, or at any other address
previously furnished in writing to the Trustee by the Com-
pany.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders
of any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such
event, at such Holder's address as it appears in the Securities
Register, not later than the latest date (if any), and not ear-
lier than the earliest date (if any), prescribed for the giving
of such notice. In any case where notice to Holders is given
by mail, neither the failure to mail such notice, nor any
defect in a notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other
Holders. Where this Indenture provides for notice in any man-
ner, such notice may be waived in writing by the Person enti-
tled to receive such notice, either before or after the event,
and such waiver shall be the equivalent of such notice. Waiv-
ers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracti-
cable to give such notice by mail, then such notification as
shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
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SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or con-
flicts with a provision of the Trust Indenture Act that is
required under such Act to be a part of and govern this Inden-
ture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so mod-
ified or to be excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table
of Contents are for convenience only and shall not affect the
construction hereof.
SECTION 109. Successors and Assigns.
The Company will have the right at all times to
assign any of its rights or obligations under this Indenture to
(a) a direct or indirect wholly owned Subsidiary, provided
that, in the event of any such assignment, the Company will
remain liable for all such obligations and (b) to any other
Person in accordance with the provisions of Article Eight of
this Indenture. This Indenture may not otherwise be assigned
by the parties hereto. Subject to the foregoing, this Inden-
ture is binding upon and inures to the benefit of the parties
hereto and their respective successors and assigns.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provi-
sions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities,
express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, the holders of
Senior Indebtedness, the holders of Preferred Securities (to
the extent provided herein) and the Holders of Securities, any
benefit or any legal or equitable right, remedy or claim under
this Indenture.
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SECTION 112. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemp-
tion Date or Stated Maturity of any Security shall not be a
Business Day, then (notwithstanding any other provision of this
Indenture or of the Securities) payment of interest on or prin-
cipal of the Securities shall be made on the next succeeding
day which is a Business Day (and without any interest or other
payment in respect of any such delay) except that, if such
Business Day is in the next succeeding calendar year, such pay-
ment of interest on or principal of the Securities, as the case
may be, shall be made on the immediately preceding Business
Day, in each case, with the same force and effect as if made on
the Interest Payment Date or Redemption Date, or at the Stated
Maturity.
ARTICLE TWO
FORM OF SECURITIES
SECTION 201. Forms Generally.
The Securities of each series shall be in substan-
tially the forms established by or pursuant to a Board Resolu-
tion or in one or more indentures supplemental hereto, 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
Depositary or as may, consistently herewith, be determined by
the officers executing such Securities, as evidenced by their
execution of such Securities. If the form of Securities of any
series is established by action taken pursuant to a Board Reso-
lution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the deliv-
ery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
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The definitive Securities shall be printed, litho-
graphed, engraved or produced by any combination of these or
other methods, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
SECTION 202. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section
301 for the Securities evidenced thereby, every Global Security
authenticated and delivered hereunder shall bear a legend in
substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE
MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REG-
ISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE
OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
SECTION 203. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be
in substantially the following form:
This is one of the Securities of the series desig-
nated therein referred to in the within-mentioned Indenture.
______________________________,
as Trustee
By:___________________________
Authorized Signatory
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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.
There shall be established in or pursuant to a Board Resolution
and, subject to Section 303, set forth, or determined in the
manner provided, in an Officers' Certificate, or established in
one or more indentures supplemental hereto, prior to the issu-
ance of Securities of any series,
(1) the title of the Securities of the
series (which shall distinguish the Securities of
such series from Securities of any other series);
(2) any limit upon the aggregate principal
amount of the Securities of the series which may
be authenticated and delivered under this Inden-
ture (except for Securities authenticated and
delivered upon registration of, transfer of, or in
exchange for, or in lieu of, other Securities of
the series pursuant to Section 304, 305, 306, 906
or 1207 and except for any Securities which, pur-
suant to Section 303, are deemed never to have
been authenticated and delivered hereunder);
(3) the Person to whom any interest on a
Security of the series 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;
(4) the date or dates on which the principal
of any Securities of the series is payable;
(5) the rate or rates at which any Securi-
ties of the series shall bear interest, if any,
the extent to which additional interest attribut-
able to deferral amounts ("Additional Interest
Attributable to Deferral"), if any, shall be
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payable in respect of any Securities of such
series, the date or dates from which any such
interest shall accrue, the Interest Payment Dates
on which any such interest shall be payable, the
Regular Record Date for any such interest payable
on any Interest Payment Date and the right, if
any, of the Company to extend the interest payment
periods and the duration of such extension (an
"Extension Period");
(6) the place or places where the principal
of and any premium and interest on any Securities
of the series shall be payable;
(7) the period or periods within which, the
price or prices at which and the terms and condi-
tions upon which any Securities of the series may
be redeemed, in whole or in part, at the option of
the Company and, if other than by a Board Resolu-
tion, the manner in which any election by the Com-
pany to redeem the Securities shall be evidenced;
(8) the obligation, if any, of the Company
to redeem or repurchase any Securities of the
series pursuant to any sinking fund or analogous
provisions or at the option of the Holder thereof,
and the period or periods within which, the price
or prices at which and the terms and conditions
upon which any Securities of the series shall be
redeemed or purchased, in whole or in part, pursu-
ant to such obligation;
(9) if other than denominations of $25 and
any integral multiple thereof, the denominations
in which any Securities of the series shall be
issuable;
(10) if the amount of principal of or any
premium or interest on any Securities of the
series may be determined with reference to an
index or pursuant to a formula, the manner in
which such amounts shall be determined;
(11) if other than the currency of the United
States of America, the currency, currencies or
currency units in which the principal of or any
premium or interest on any Securities of the
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series shall be payable and the manner of deter-
mining the equivalent thereof in the currency of
the United States of America for any purpose,
including for purposes of the definition of "Out-
standing" in Section 101;
(12) if the principal of or any premium or
interest on any Securities of the series is to be
payable, at the election of the Company or the
Holder thereof, in one or more currencies or cur-
rency units other than that or those in which such
Securities are stated to be payable, the currency,
currencies or currency units in which the princi-
pal of or any premium or interest on such Securi-
ties as to which such election is made shall be
payable, the periods within which and the terms
and conditions upon which such election is to be
made and the amount so payable (or the manner in
which such amount shall be determined);
(13) if other than the entire principal
amount thereof, the portion of the principal
amount of any Securities of the series which shall
be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 502;
(14) if applicable, that any Securities of
the series shall be issuable in whole or in part
in the form of one or more Global Securities and,
in such case, the respective Depositaries desig-
nated for such Global Securities, the form of any
legend or legends which shall be borne by any such
Global Security in addition to or in lieu of that
set forth in Section 202 and any circumstances in
addition to or in lieu of those set forth in
Clause (2) of the last paragraph of Section 305,
in which any such Global Security may be exchanged
in whole or in part for Securities registered, and
any transfer of such Global Security in whole or
in part may be registered, in the name or names of
Persons other than the Depositary for such Global
Security or a nominee thereof;
(15) any addition to or change in the Events
of Default which apply to any Securities of the
series and any change in the right of the Trustee
or the requisite Holders of such Securities to
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declare the principal amount thereof due and pay-
able pursuant to Section 502;
(16) any addition to or change in the cove-
nants set forth in Article Ten which applies to
Securities of the series; and
(17) any other terms of the series (which
terms shall not be inconsistent with the provi-
sions of this Indenture, except as permitted by
Section 901(5)).
All Securities of any one series shall be substan-
tially identical except as to denomination and except as may
otherwise be provided in or pursuant to the Board Resolution
referred to above and (subject to Section 303) set forth, or
determined in the manner provided, in the Officers' Certificate
referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by
action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the
Secretary or an Assistant Secretary of the Company and deliv-
ered to the Trustee at or prior to the delivery of the Offic-
ers' Certificate setting forth the terms of the series.
The Securities shall be subordinated in right of pay-
ment to Senior Indebtedness as provided in Article Eleven.
SECTION 302. Denominations.
The Securities of each series shall be issuable only
in registered form, without coupons, and only in denominations
as shall be specified as contemplated by Section 301. In the
absence of any such specified denomination with respect to the
Securities of any series, the Securities of such series shall
be issuable in denominations of $25 and any integral multiple
thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the
Company by its Chairman, one of its Vice Chairman, its Presi-
dent or one of its Vice Presidents, under its corporate seal
reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers
on the Securities may be manual or facsimile.
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Securities bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such indi-
viduals or any of them have ceased to hold such offices prior
to the authentication and delivery of such Securities.
At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver Securi-
ties of any series executed by the Company to the Trustee for
authentication, together with a Company Order for the authenti-
cation and delivery of such Securities; and the Trustee in
accordance with such Company Order shall authenticate and
deliver such Securities. If the form or terms of the Securi-
ties of the series have been established by or pursuant to one
or more Board Resolutions as permitted by Sections 201 and 301,
in authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Secu-
rities, the Trustee shall be entitled to receive, and (subject
to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating,
(1) if the form of such Securities has been
established by or pursuant to Board Resolutions as
permitted by Section 201, that such form has been
established in conformity with the provisions of
this Indenture;
(2) if the terms of such Securities have
been established by or pursuant to Board Resolu-
tions as permitted by Section 301, that such terms
have been established in conformity with the pro-
visions of this Indenture; and
(3) that such Securities, when authenticated
and delivered by the Trustee and issued by the
Company in the manner and subject to any condi-
tions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations
of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating
to or affecting creditors' rights and to general
equity principles.
If such form or terms have been so established, the Trustee
shall not be required to authenticate such Securities if the
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issue of such Securities pursuant to this Indenture will affect
the Trustee's own rights, duties or immunities under the Secu-
rities or this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of
the preceding paragraph, if all Securities of a series are not
to be originally issued at one time, it shall not be necessary
to deliver the Officers' Certificate otherwise required pursu-
ant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or
prior to the authentication of each Security of such series if
such documents are delivered at or prior to the authentication
upon original issuance of the first Security of such series to
be issued.
Each Security shall be dated the date of its
authentication.
No Security shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless
there appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence,
that such Security has been duly authenticated and delivered
hereunder.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of
any series, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substan-
tially of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the
Company will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of
definitive Securities of such series, the temporary Securities
of such series shall be exchangeable for definitive Securities
of such series upon surrender of the temporary Securities of
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such series at any office or agency of the Company designated
pursuant to Section 1002, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securi-
ties of any series the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of the same series of
any authorized denominations. Until so exchanged the temporary
Securities of any series shall in all respects be entitled to
the same benefits under this Indenture as definitive Securities
of such series.
SECTION 305. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept at the Corporate
Trust Office of the Trustee a register (the register maintained
in such office and in any other office or agency designated
pursuant Section 1002 being herein sometimes collectively
referred to as the "Securities Register") in which, subject to
such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Securities and of trans-
fers of Securities. The Trustee is hereby appointed "Securi-
ties Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any
Security of a series at an office or agency of the Company des-
ignated pursuant to Section 1002 for such purpose for that
series, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated trans-
feree or transferees, one or more new Securities of the same
series of any authorized denominations and of a like aggregate
principal amount.
At the option of the Holder, Securities of any series
may be exchanged for other Securities of the same series of any
authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any Securities are so surren-
dered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
All Securities issued upon any registration of trans-
fer or exchange of Securities shall be the valid obligations of
the Company, evidencing the same debt, and entitled to the same
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benefits under this Indenture, as the Securities surrendered
upon such registration of transfer or exchange.
Every Security presented or surrendered for registra-
tion of transfer or for exchange shall (if so required by the
Company or the Trustee) be duly endorsed, or be accompanied by
a written instrument of transfer in form satisfactory to the
Company and the Securities Registrar duly executed, by the
Holder thereof or such ▇▇▇▇▇▇'s attorney duly authorized in
writing.
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, 906 or 1207 not involving
any transfer.
If the Securities of any series (or of any series and
specified tenor) are to be redeemed in part, the Company will
not be required to issue, register the transfer of or exchange
any Securities of that series (or of that series and specified
tenor, as the case may be) during a period beginning at the
opening of business 15 days before the day of the mailing of a
notice of redemption of any such Securities that may be
selected for redemption and ending at the close of business on
the day of such mailing, except the unredeemed portion of any
such Securities being redeemed in part.
The provisions of clauses (1), (2), (3) and (4) below
shall apply only to Global Securities:
(1) Each Global Security authenticated under this
Indenture shall be registered in the name of the Deposi-
tary designated for such Global Security or a nominee
thereof and delivered to such Depositary or a nominee
thereof or custodian therefor, and each such Global Secu-
rity shall constitute a single Security for all purposes
of this Indenture.
(2) Notwithstanding any other provision in this
Indenture, no Global Security may be exchanged in whole or
in part for Securities registered, and no transfer of a
Global Security in whole or in part may be registered, in
the name of any Person other than the Depositary for such
Global Security or a nominee thereof unless (A) such
-25-
Depositary (i) has notified the Company that it is unwill-
ing or unable to continue as Depositary for such Global
Security or (ii) has ceased to be a clearing agency regis-
tered under the Exchange Act at a time when the Depositary
is required to be so registered to act as such Depositary,
(B) there shall have occurred and be continuing an Event
of Default with respect to such Global Security, (C) the
Company in its sole discretion determines that such Global
Security shall be so exchangeable, or (D) there shall
exist such circumstances, if any, in addition to or in
lieu of the foregoing as have been specified for this pur-
pose as contemplated by Section 301.
(3) Subject to clause (2) above, any exchange of a
Global Security for other Securities may be made in whole
or in part, and all Securities issued in exchange for a
Global Security or any portion thereof shall be registered
in such names as the Depositary for such Global Security
shall direct.
(4) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu
of, a Global Security or any portion thereof, whether pur-
suant to this Section, Section 304, 306, 906 or 1207 or
otherwise, shall be authenticated and delivered in the
form of, and shall be, a Global Security, unless such
Security is registered in the name of a Person other than
the Depositary for such Global Security or a nominee
thereof.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trus-
tee, the Company shall execute, and the Trustee shall authenti-
cate and deliver in exchange therefor, a new Security of the
same series and of like tenor and principal amount and bearing
a number not contemporaneously outstanding.
If there shall be delivered to the Company and the
Trustee (i) evidence to their satisfaction of the destruction,
loss or theft of any security and (ii) such security or indem-
nity as may be required by them to save each of them and any
agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has
been acquired by a bona fide purchaser, the Company shall exe-
cute, and the Trustee shall authenticate and deliver, in lieu
of any such destroyed, lost or stolen Security, a new Security
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of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new Secu-
rity, pay such Security.
Upon the issuance of any new Security under this Sec-
tion, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to
this Section in lieu of any destroyed, lost or stolen Security
shall constitute an original additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen
Security shall be at any time enforceable by anyone, and shall
be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that
series duly issued hereunder.
The provisions of this Section are exclusive and
shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of muti-
lated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by
Section 301 with respect to any series of Securities, 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 rele-
vant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
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(1) the Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Secu-
rities of such series (or their respective Predecessor
Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each
Security of such series and the date of the proposed pay-
ment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trus-
tee 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 pay-
ment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first-class postage prepaid,
to each Holder of Securities of such series at such Hold-
er's address as it appears in the Securities 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 Per-
sons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered at
the close of business on such Special Record Date and
shall no longer be payable pursuant to the following
clause (2).
(2) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other law-
ful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed,
and, if so listed, upon such notice as may be required by
such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this
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clause, such manner of payment shall be deemed practicable
by the Trustee.
Subject to the foregoing provisions of this Section,
each Security delivered under this Indenture upon registration
of transfer of or in exchange for or in lieu of any other Secu-
rity shall carry the rights to interest accrued and unpaid, and
to accrue (including in each such case Additional Interest),
which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registra-
tion of transfer, the Company, the Trustee and any agent of the
Company or the Trustee shall treat the Person in whose name
such Security is registered as the owner of such Security for
the purpose of receiving payment of principal of and (subject
to Section 307) interest (including Additional Interest) on
such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and none of the Company, the
Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to
any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any
time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Com-
pany may have acquired in any manner whatsoever, and all Secu-
rities so delivered shall be promptly cancelled by the Trustee.
No Securities shall be authenticated in lieu of or in exchange
for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of as directed
by a Company Order.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by
Section 301 for Securities of any series, interest on the Secu-
rities of each series shall be computed on the basis of a
360-day year of twelve 30-day months and, for any period
shorter than a full monthly period, shall be computed on the
basis of the actual number of days elapsed in such period.
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SECTION 311. Right of Set-Off.
Notwithstanding anything to the contrary in this
Indenture, the Company shall have the right to set-off any pay-
ment it is otherwise required to make hereunder to the extent
the Company has theretofore made, or is concurrently on the
date of such payment making, a payment under a Parent
Guarantee.
SECTION 312. CUSIP Numbers.
The Company in issuing the Securities of any series
may use "CUSIP" numbers (if then generally in use), and, if so,
the Trustee shall use "CUSIP" numbers in notices of redemption
as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of
such numbers either as printed on the Securities or as con-
tained in any notice of a redemption and that reliance may be
placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by
any defect in or omission of such numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect
(except as to any surviving rights of registration of transfer
or exchange of Securities herein expressly provided for), and
the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated
and delivered (other than (i) Securities which have
been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306 and (ii)
Securities for whose payment money or U.S. Government
Obligations have theretofor been deposited in trust
or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from
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such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore deliv-
ered to the Trustee for cancellation;
(i) have become due and payable; or
(ii) will become due and payable at their
Stated Maturity within one year; or
(iii) are to be called for redemption within
one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense,
of the Company
and the Company, in the case of (i), (ii) or (iii)
above, has deposited or caused to be deposited with
the Trustee as trust funds (a) money in the necessary
amount or (b) U.S. Government Obligations, the prin-
cipal of and the interest on which when due, and
without any regard to reinvestment thereof, in the
opinion of an independent accountant, and, in the
opinion of the officers of the Company executing an
Officers' Certificate to that effect, will provide
moneys which, together with the moneys, if any,
deposited with or held by the Trustee, shall be suf-
ficient to pay when due the principal of, premium, if
any, and interest due and to become due on said Secu-
rities or portions thereof on the Redemption Date or
the Stated Maturity thereof, as the case may be, in
trust to pay and discharge the entire indebtedness on
such Securities not theretofore delivered to the
Trustee for cancellation, for principal and interest
(including Additional Interest to the date of
deposit) to the date of such deposit (in the case of
Securities which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case
may be;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for
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relating to the satisfaction and discharge of this Inden-
ture have been complied with.
Notwithstanding the satisfaction and discharge of this Inden-
ture, the obligations of the Company to the Trustee under Sec-
tion 607 and, if money or U.S. Government Obligations shall
have been deposited with the Trustee pursuant to subclause (B)
of clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall
survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of
Section 1003, all money and U.S. Government Obligations depos-
ited with the Trustee pursuant to Section 401 shall be held in
trust and applied by it, in accordance with the provisions of
the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine,
to the Persons entitled thereto, of the principal and interest
for whose payment such deposited money and the money from U.S.
Government Obligations have been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default," wherever used herein with respect
to Securities of any series, means any one of the following
events that has occurred and is continuing (whatever the reason
for such Event of Default and whether it shall be occasioned by
the provisions of Article Eleven or be voluntary or involuntary
or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(1) failure for 30 days to pay any interest on the
Securities of that series, including any Additional Inter-
est in respect thereof, when due (subject to the deferral
of any due date in the case of an Extension Period); or
(2) failure to pay any principal on the Securities
of that series when due whether at Stated Maturity, upon
redemption by declaration of acceleration or otherwise; except
that, in the event of an optional redemption, the failure
to redeem any Security which is the result of the Company's
failure to deposit on or before the Redemption Date with the
Trustee (and/or having irrevocably directed the Trustee to apply,
from money held by it available to be used for the redemption
of Securities) an amount in cash sufficient to redeem all of
the Securities to be redeemed, shall not be an Event of Default,
but shall be deemed a recission of the call for redemption; or
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(3) failure to observe or perform in any material
respect any other covenant relating to a particular series
contained in this Indenture for 90 days after written
notice to the Company from the Trustee or the holders of
at least 25% in principal amount of the Outstanding Secu-
rities of that series; or
(4) a decree or order is entered by a court having
jurisdiction in the premises (i) for relief in respect of
the Company in an involuntary case or proceeding under the
Federal Bankruptcy Code or any other federal or state
bankruptcy, insolvency, reorganization or similar law or
(ii) adjudging the Company a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment or compo-
sition of or in respect of the Company under the Federal
Bankruptcy Code or any other applicable federal or state
law, or appointing a custodian, receiver, liquidator,
assignee, trustee or sequestrator (or other similar offi-
cial) of the Company or of any substantial part of any of
its properties, or ordering the winding up or liquidation
of any of its affairs, and any such decree or order
remains unstayed and in effect for a period of 60 consecu-
tive days; or
(5) the Company institutes a voluntary case or pro-
ceeding under the Federal Bankruptcy Code or any other
applicable federal or state law or any other case or pro-
ceedings to be adjudicated a bankrupt or insolvent, or the
Company consents to the entry of a decree or order for
relief in respect of the Company in any involuntary case
or proceeding under the Federal Bankruptcy Code or any
other applicable federal or state law or to the institu-
tion of bankruptcy or insolvency proceedings against the
Company, or the Company files a petition or answer or con-
sent seeking reorganization or relief under the Federal
Bankruptcy Code or any other applicable federal or state
law, or consents to the filing of any such petition or to
the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee or sequestrator
(or other similar official) of the Company or of any sub-
stantial part of its property, or makes an assignment for
the benefit of creditors, or admits in writing its inabil-
ity to pay its debts generally as they become due or takes
corporate action in furtherance of any such action.
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SECTION 502. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default with respect to the Securities
of any series at the time Outstanding occurs and is continuing,
then and in every such case, the Trustee or the Holders of not
less than 25% in aggregate principal amount of the Outstanding
Securities of that series shall have the right to declare the
principal of and the interest (including any Additional Inter-
est) on all the Securities of that series and any other amounts
payable hereunder to be due and payable immediately, provided,
however, that if upon an Event of Default, the Trustee or the
Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of that series fail to declare the pay-
ment of all amounts on the Securities of that series to be
immediately due and payable, the holders of at least 25% in
aggregate liquidation amount of the Preferred Securities then
outstanding of the Trust to which such series of securities
have been issued shall have such right, by a notice in writing
to the Company (and to the Trustee if given by Holders or the
holders of such Preferred Securities) and shall have the right
to enforce any and all other rights of Holders of Securities of
that series as creditors with respect to the Securities of that
series. Upon any such declaration, such principal and all
accrued interest shall become immediately due and payable.
At any time after such a declaration of acceleration
has been made and before a judgment or decree for payment of
the money due has been obtained by the Trustee as hereinafter
provided in this Article, the Holders of a majority in princi-
pal amount of the Outstanding Securities of that series, by
written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trus-
tee a sum sufficient to pay,
(A) all overdue interest (including any Addi-
tional Interest) on all Securities of that series,
(B) the principal of any Securities which have
become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne
by such Securities, and
(C) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
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disbursements and advances of the Trustee, its agents
and counsel;
and
(2) all Events of Default with respect to Securities
of that series, other than the non-payment of the princi-
pal of Securities of that series which have become due
solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent
default or impair any right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforce-
ment by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest
(including any Additional Interest) on any Security when
such interest becomes due and payable and such default
continues for a period of 30 days (subject to the deferral
of any due and payable interest in the case of an Exten-
sion Period), or
(2) default is made in the payment of the principal
of any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for
the benefit of the Holders of such Securities, the whole amount
then due and payable on such Securities for principal and
interest (including any Additional Interest), at the rate borne
by the Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses
of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel.
If an Event of Default with respect to Securities of
any series occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the
rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most
effective to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this
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Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relating to the
Company (or any other obligor upon the Securities), its prop-
erty or its creditors, the Trustee shall be entitled and empow-
ered, by intervention in such proceeding or otherwise, to take
any and all actions authorized under the Trust Indenture Act in
order to have claims of the Holders and the Trustee allowed in
any such proceeding. In particular, the Trustee shall be
authorized 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, liquida-
tor, sequestrator or other similar official in any such ▇▇▇▇-
cial 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 amount due it for the rea-
sonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 607.
No provision of this Indenture shall be deemed to
authorize the Trustee to authorize or consent to or accept or
adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture
or the Securities may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the produc-
tion 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 reason-
able compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment
has been recovered.
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SECTION 506. Application of Money Collected.
Subject to Article Eleven, any money or U.S. Govern-
ment Obligations collected by the Trustee pursuant to this
Article shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of
such money on account of principal or interest (including any
Additional Interest), upon presentation of the Securities and
the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 607;
SECOND: To the payment of the amounts then due and
unpaid for principal of and interest (including any Addi-
tional Interest) on the Securities 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 Securi-
ties for principal and interest (including any Additional
Interest), respectively; and
THIRD: The balance, if any, to the Company.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have
any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice
to the Trustee of a Continuing Event of Default with
respect to Securities of that series;
(2) the Holders of not less than 25% in principal
amount of the Outstanding Securities of that series shall
have made written request to the Trustee to institute pro-
ceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trus-
tee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such
request;
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(4) the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to
institute any such proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day
period by the Holders of a majority in principal amount of
the Outstanding Securities of that series;
it being understood and intended that no one or more 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 Holders, or to obtain or
to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of
all the Holders.
SECTION 508. Unconditional Right of Holders to Receive Princi-
pal and Interest.
Notwithstanding any other provision in this Inden-
ture, the Holder of any Security shall have the right, which is
absolute and unconditional, to receive payment of the principal
of and (subject to Section 307) interest (including any Addi-
tional Interest) on such Security on the Stated Maturity (sub-
ject to the deferral of any due date in the case of an Exten-
sion Period) 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 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any pro-
ceeding to enforce any right or remedy under this Indenture,
and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any deter-
mination in such proceeding, the Company, the Trustee and the
Holder shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and reme-
dies of the Trustee and the Holder shall continue as though no
such proceeding had been instituted.
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SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen
Securities in the last paragraph of Section 306, 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 permit-
▇▇▇ by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder
of any Security 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 acquies-
cence therein. Every right and remedy given by this Article or
by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right to
direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust
or power conferred on the Trustee, provided that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture; and
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction.
SECTION 513. Waiver of Past Defaults.
Subject to Sections 902 and 1005 hereof, the Holders
of not less than a majority in principal amount of the Out-
standing Securities of any series may on behalf of the Holders
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of all the Securities of such series waive any past default
hereunder and its consequences, except a default
(1) in the payment of the principal of or interest
(including any Additional Interest) on any Security of
such series (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and
principal due otherwise than by acceleration have been
deposited with the Trustee); or
(2) in respect of a covenant or provision hereof
which under Article Nine cannot be modified or amended
without the consent of the Holder of each Outstanding
Security of such series affected.
Upon any such waiver, such default shall cease to
exist, and any Event of Default arising therefrom shall be
deemed to have been cured, for every purpose of this Indenture;
but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or rem-
edy under this Indenture, or in any suit against the Trustee
for any action taken, suffered or omitted by it as Trustee, a
court may require any party litigant in such court to file an
undertaking to pay the costs of such suit, and may assess costs
against any such party litigant, in the manner and to the
extent provided in the Trust Indenture Act; provided, that nei-
ther this Section nor the Trust Indenture Act shall 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 Trustee or in any suit for the enforcement of the right
to receive the principal of and interest (including any Addi-
tional Interest) on any Security.
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may law-
fully 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 stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the cove-
nants or the performance of this Indenture; and the Company (to
the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law and covenants that it
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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 SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(1) Except during the continuance of an Event of Default,
(A) the Trustee undertakes to perform such
duties and only such duties as are specifically set forth
in this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
(B) in the absence of bad faith on its part,
the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Inden-
ture; but in the case of any such certificates or opinions
which by any provisions 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.
In case an Event of Default has occurred and is con-
tinuing, the Trustee shall exercise such of the rights and pow-
ers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his
own affairs.
(2) No provision of this Indenture shall be construed
to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful
misconduct except that
(A) this Subsection shall not be construed to
limit the effect of Subsection (1) of this Section;
(B) the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible
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Officer, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(C) 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 Holders
pursuant to Section 512 relating to the time, method and
place of conducting any proceeding for any remedy avail-
able to the Trustee, or exercising any trust or power con-
ferred upon the Trustee, under this Indenture with respect
to the Securities of such series.
Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the perfor-
▇▇▇▇▇ 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 indem-
nity against such risk or liability is not reasonably assured
to it.
Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affect-
ing the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
If any default occurs hereunder with respect to Secu-
rities of any series, the Trustee shall give the Holders of
Securities of such series notice of such default as and to the
extent provided by the Trust Indenture Act; provided, however,
that in the case of any default of the character specified in
Section 501(3) with respect to Securities of such series, no
such notice to Holders shall be given until at least 30 days
after the occurrence thereof.
The Trustee shall not be deemed to have knowledge of
any Event of Default unless the Trustee shall have received
written notice, or a Responsible Officer charged with the
administration of the Trust Agreement shall have obtained writ-
ten notice, of such Event of Default.
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 Securi-
ties of such series.
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SECTION 603. Certain Rights of the Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, cer-
tificate, 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 men-
tioned herein shall be sufficiently evidenced by a Company
Request or Company Order, and any resolution of the Board
of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be
proved or established prior to taking, suffering or omit-
ting any action hereunder, the Trustee (unless other evi-
dence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel of its
choice, which may be counsel to the Company, and the writ-
ten 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 of the Hold-
ers pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indem-
nity 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 res-
olution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
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paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation,
it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or ▇▇▇▇▇-
▇▇▇;
(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 liable for any action
taken, suffered, or omitted to be taken by it in good
faith and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon
it by this Indenture.
SECTION 604. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities,
except the Trustee's certificates of authentication, shall be
taken as the statements of the Company, and the Trustee assumes
no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of Secu-
rities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Paying Agent, any Securities Regis-
trar, or any other agent of the Company, in its individual or
any other capacity, may become the owner or pledgee of Securi-
ties and, subject to Sections 608 and 613, may otherwise deal
with the Company with the same rights it would have if it were
not Trustee, Paying Agent, Security Registrar, or such other
agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not
be segregated from other funds except to the extent required by
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law. The Trustee shall be under no liability for interest on
any money received by it hereunder except as otherwise agreed
in writing with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such
compensation as the Company and the Trustee shall from
time to time agree in writing 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);
(2) except as otherwise expressly provided herein,
to reimburse the Trustee upon its request for all reason-
able expenses, disbursements and advances incurred or made
by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify the Trustee and any predecessor
Trustee for, and to hold it harmless against, any and all
loss, damage, claim, liability or expense, including taxes
(other than taxes based on the income of the Trustee)
incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or
administration of this trust, including the costs and
expenses of defending itself against any claim or lia-
bility in connection with the exercise or performance of
any of its powers or duties hereunder.
To secure the Trustee's rights under this Section,
the Trustee shall have a lien against any money or other prop-
erty collected hereunder. The provisions of this Section shall
survive the termination of this Indenture.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the
Trustee shall either eliminate such interest or resign, to the
extent and in the manner provided by and subject to the provi-
sions of, the Trust Indenture Act and this Indenture. To the
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extent permitted by such Act, the Trustee shall not be deemed
to have a conflicting interest by virtue of being a trustee
under this Indenture with respect to Securities of more than
one series.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder with
respect to the Securities of each series, which may be a Trus-
tee hereunder for Securities of one or more other series. Each
Trustee shall be a Person that is eligible pursuant to the
Trust Indenture Act to act as such and has a combined capital
and surplus of at least $50,000,000 and has its Corporate Trust
Office in . If any such Person 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 sur-
plus of such Person 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 with respect to the
Securities of any series shall cease to be eligible in accor-
dance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter spec-
ified in this Article.
SECTION 610. 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 under Section 611.
(b) The Trustee may resign at any time with respect
to the Securities of one or more series by giving written
notice thereof to the Company. If an instrument of acceptance
by a successor Trustee shall not have been delivered to the
Trustee within 60 days after the giving of such notice of res-
ignation, the resigning Trustee may petition any court of com-
petent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(c) The Trustee may be removed at any time with
respect to the Securities of any series by Act of the Holders
of a majority in principal amount of the Outstanding Securities
of such series, delivered to the Trustee and to the Company.
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(d) If at any time:
(1) the Trustee shall fail to comply with Section
608 after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Security
for at least six months, or
(2) the Trustee shall cease to be eligible under
Section 609 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of
the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of rehabili-
tation, conservation or liquidation, or
(4) an Event of Default has not occurred and is not
continuing,
then, in any such case, (i) the Company by a Board Resolution
may remove the Trustee with respect to all Securities, or
(ii) subject to Section 514, any Holder who has been a bona
fide Holder of a Security for at least six months may, on
behalf of such Holder and all others similarly situated, peti-
tion 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, with respect to the Securities
of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such
series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series). If,
within one year after such resignation, removal or incapa-
bility, 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,
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become the successor Trustee with respect to Securities of such
series and supersede the successor Trustee with respect to the
Securities of any series appointed by the Company. If no suc-
cessor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and
accepted appointment in the manner hereinafter provided, any
Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(f) The Company shall give notice of each resigna-
tion and each removal of the Trustee with respect to the Secu-
rities of any series and each appointment of a successor Trus-
tee 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 Trus-
tee with respect to the Securities of such series and the
address of such successor Trustee's Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
Every successor Trustee with respect to all Securi-
ties appointed hereunder shall execute, acknowledge and deliver
to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; provided that, on request of
the Company or the successor Trustee, such retiring Trustee
shall, upon payment of its reasonable charges, execute and
deliver an instrument transferring to such successor Trustee
all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trus-
tee all property and money held by such retiring Trustee
hereunder.
In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not
all) series, the Company, the retiring Trustee and each succes-
sor 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
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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 nec-
▇▇▇▇▇▇ 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 hereun-
der 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, with-
out any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates;
but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such
retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such successor
Trustee relates.
Upon request of any such successor Trustee, the Com-
pany shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee
all such rights, powers and trusts referred to in the first or
second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee
shall be qualified and eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Trustee may be merged
or converted or with which it may be consolidated, or any
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corporation resulting from any merger, conversion or consolida-
tion to which the Trustee shall be a party, shall be the suc-
cessor of the Trustee hereunder, provided that 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 Securi-
ties 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 authen-
ticated such Securities.
SECTION 613. Preferential Collection of Claims Against
Company.
If and when the Trustee shall be or become a creditor
of the Company (or any other obligor upon the Securities), the
Trustee shall be subject to the provisions of the Trust Inden-
ture Act regarding the collection of claims against the Company
(or any such other obligor).
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to
the Trustee
(a) semiannually, not later than February 15 and
August 15 in each year, a list, in such form as the Trus-
tee may reasonably require, of the names and addresses of
the Holders of Securities of each series as of a date not
more than 15 days prior to the delivery thereof, and
(b) at such other times as the Trustee may request
in writing, within 30 days after the receipt by the Com-
pany of any such request, a list of similar form and con-
tent as of a date not more than 15 days prior to the time
such list is furnished;
excluding from any such list names and addresses received by
the Trustee in its capacity as Securities Registrar.
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SECTION 702. Preservation of Information; Communications to
Holders.
(a) The Trustee shall preserve, in as current a form
as is reasonably practicable, the names and addresses of Hold-
ers contained in the most recent list furnished to the Trustee
as provided in Section 701 and the names and addresses of Hold-
ers received by the Trustee in its capacity as Securities Reg-
istrar. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so
furnished.
(b) The rights of Holders to communicate with other
Holders with respect to their rights under this Indenture or
under the Securities, and the corresponding rights and duties
of the Trustee, shall be as provided by the Trust Indenture
Act.
(c) Every Holder of Securities, by receiving and
holding the same, agrees with the Company and the Trustee that
none of the Company, the Trustee or any agent of either of them
shall be held accountable by reason of any disclosure of infor-
mation as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) 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 times and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Trustee with each
stock exchange upon which any Securities are listed, with the
Commission and with the Company. The Company will notify the
Trustee when any Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Com-
mission, and transmit to Holders, such information, documents
and other reports, and such summaries thereof, as may be
required pursuant to the Trust Indenture Act at the times and
in the manner provided pursuant to such Act; provided that any
such information, documents or reports required to be filed
with the Commission pursuant to Section 13 or 15(d) of the
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Exchange Act shall be filed with the Trustee within 15 days
after the same is so required to be filed with the Commission.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only, and the Trustee's
receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information
contained therein, including the Company's compliance with any
of its covenants hereunder (as to which the Trustee is entitled
to rely exclusively on Officers' Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc. Only on Certain
Terms.
The Company shall not consolidate with or merge into
any other Person or convey, transfer or lease its properties
and assets substantially as an entirety to any Person, and the
Company shall not permit any Person to consolidate with or
merge into the Company or convey, transfer or lease its proper-
ties and assets substantially as an entirety to the Company,
unless:
(1) in case the Company shall consolidate with or
merge into another Person or convey, transfer or lease its
properties and assets substantially as an entirety to any
Person, the Person formed by such consolidation or into
which the Company is merged or the Person which acquires
by conveyance or transfer, or which leases, the properties
and assets of the Company substantially as an entirety
shall be a corporation, partnership or trust, shall be
organized and validly existing under the laws of the
United States of America, any State thereof or the Dis-
trict of Columbia and shall expressly assume, by an inden-
ture supplemental hereto, executed and delivered to the
Trustee, in form reasonably satisfactory to the Trustee,
the due and punctual payment of the principal of and
interest (including any Additional Interest) on all the
Securities and the performance or observance of every
covenant of this Indenture, any Trust Agreement, any Par-
ent Guarantee and any Expense Agreement on the part of the
Company to be performed or observed;
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(2) immediately after giving effect to such transac-
tion and treating any indebtedness which becomes an obli-
gation of the Company or a Subsidiary as a result of such
transaction as having been incurred by the Company or such
Subsidiary 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 hap-
pened and be continuing;
(3) such consolidation or merger or conveyance,
transfer or lease of properties or assets of the Company
does not give rise to any breach or violation of, any
Trust Agreement or any Parent Guarantee; and
(4) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance,
transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such supple-
mental indenture comply with this Article and that all
conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with, or merger
of the Company into, any other Person or any conveyance, trans-
fer or lease of the properties and assets of the Company sub-
stantially as an entirety in accordance with Section 801, the
successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had
been named as the Company herein, and thereafter, except in the
case of a lease, the predecessor Person shall be relieved of
all obligations and covenants under this Indenture and the
Securities.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for
any of the following purposes:
(1) to evidence the succession of another Person to
the Company and the assumption by any such successor of
the covenants of the Company herein and in the Securities;
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities
(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 to surrender any right or power herein or
in the Securities conferred upon the Company;
(3) to cure any ambiguity or to correct any provi-
sion herein which may be defective or inconsistent with
any other provision herein;
(4) to comply with the requirements of the Commis-
sion in order to effect or maintain the qualification of
this Indenture under the Trust Indenture Act, as contem-
plated by Section 905 or otherwise;
(5) to evidence and provide for the acceptance of
the appointment of a successor Trustee with respect to the
Securities of one or more series hereunder and to add to
or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administra-
tion of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611;
(6) to establish the form or terms of Securities of
any series as permitted by Sections 201 and 301; or
(7) to make any other change that does not adversely
affect the rights of any Holder.
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SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a
majority in principal amount of the Outstanding Securities of
each series affected by such supplemental indenture, by Act of
said Holders delivered to the Company and the Trustee, the Com-
pany, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture
or of modifying in any manner the rights of the Holders of
Securities of such series under this Indenture; provided, how-
ever, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of,
or any installment of interest (including any Additional
Interest) on, any Security, or reduce the principal amount
thereof or the rate of interest thereon, or change the
place of payment where, or the coin or currency in which,
any Security or 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 modify the provisions of this Indenture with respect to
the subordination of the Securities in a manner adverse to
the Holders,
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture,
or the consent of whose Holders if required for any waiver
(of compliance with certain provisions of this Indenture
or certain defaults hereunder and their consequences) pro-
vided for in this Indenture, or
(3) modify any of the provisions of this Section,
Section 513 or Section 1005, except to increase any such
percentage (referred to in clause (2), above) or to pro-
vide that certain other provisions of this Indenture can-
not be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby;
provided, that, so long as any of the Preferred Securities
remain outstanding, no such amendment shall be made that
adversely affects the holders of the Preferred Securities and
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no waiver of any Event of Default or compliance with any cove-
nant under this Indenture shall be effective, without the prior
consent of the holders of at least a majority of the aggregate
liquidation amount of the outstanding Preferred Securities
unless and until the Securities and all accrued and unpaid
interest (including any Additional Interest) thereon have been
paid in full.
A supplemental indenture which changes or eliminates
any covenant or other provision of this Indenture which has
expressly been included solely for the benefit of one or more
particular series of Securities, or which modifies the rights
of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect
the rights under this Indenture of the Holders of Securities of
any other series.
It shall not be necessary for any Act of Holders
under this Section to approve the particular form of any pro-
posed supplemental indenture, but it shall be sufficient if
such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts cre-
ated 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 (sub-
ject to Section 601) shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such sup-
plemental indenture is authorized or permitted by this Inden-
ture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trust-
ee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture
under this Article, this Indenture shall be modified in accor-
dance 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 deliv-
ered hereunder shall be bound thereby.
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SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to
this Article shall conform to the requirements of the Trust
Indenture Act.
SECTION 906. Reference in Securities to Supplemental
Indentures.
Securities of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to
this Article may bear a notation in form approved by the Trus-
tee as to any matter provided for in such supplemental inden-
ture. If the Company shall so determine, new Securities of any
series so modified as to conform, in the opinion of the Trustee
and the Company, to any such supplemental indenture may be pre-
pared and executed by the Company and authenticated and deliv-
ered by the Trustee in exchange for Outstanding Securities of
such series.
ARTICLE TEN
COVENANTS; REPRESENTATIONS AND WARRANTIES
SECTION 1001. Payment of Principal and Interest.
The Company will duly and punctually pay the princi-
pal of and interest on the Securities of each series in accor-
dance with the terms of the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in the United States an
office or agency for each series of Securities where Securities
of that series may be presented or surrendered for payment,
where Securities of that series may be surrendered for regis-
tration of transfer or exchange, where Securities of that
series may be surrendered for conversion and where notices and
demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of
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the Trustee, and the Company hereby appoints the Trustee as its
agent to receive all such presentations, surrenders, notices
and demands.
The Company may also from time to time designate one
or more other offices or agencies (in the United States) where
the securities of one or more series may be presented or sur-
rendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such des-
ignation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the United
States for each series of Securities for such purposes. The
Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the loca-
tion of any such other office or agency.
SECTION 1003. Money for Payments on Securities to Be Held in
Trust.
If the Company shall at any time act as its own Pay-
ing Agent with respect to any series of Securities, it will, on
or at the option of the Company before each due date of the
principal of or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Per-
sons entitled thereto a sum sufficient to pay the principal or
interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying
Agents for any series of Securities, it will, prior to 12:00
noon, New York time, on each due date of the principal of or
interest on any Securities of that series, deposit with a Pay-
ing Agent a sum sufficient to pay such amount, such sum to be
held as provided by the Trust Indenture Act, and (unless such
Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any
series of Securities other than the Trustee or the Company to
execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the pro-
visions of this Section 1003, that such Paying Agent will (i)
comply with the provisions of the Trust Indenture Act appli-
cable to it as a Paying Agent and (ii) during the continuance
of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in
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respect of the Securities of that series, upon the written
request of the Trustee, forthwith pay to the Trustee all sums
held in trust by such Paying Agent as such.
The Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or
for any other purpose, pay, or by Company Order direct any Pay-
ing 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 Trus-
tee upon the same trusts as those upon which such sums were
held by the Company or such Paying Agent; and, upon such pay-
ment 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 or interest on any Security of any series and
remaining unclaimed for two years after such principal or
interest has become due and payable shall be paid to the Com-
pany on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only
to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall
thereupon cease.
The Trustee and the Paying Agent shall promptly pay
to the Company upon request any excess money or securities held
by them at any time.
SECTION 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120
days after the end of each fiscal year of the Company ending
after the date hereof, an Officers' Certificate, stating
whether or not to the best knowledge of the signers thereof the
Company is in default in the performance and observance of any
of the material terms, provisions and conditions of this Inden-
ture (without regard to any period of grace or requirement of
notice provided hereunder) and, if the Company shall be in
default, specifying all such defaults and the nature and status
thereof of which they may have knowledge.
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SECTION 1005. Additional Covenants.
The Company covenants and agrees for the benefit of
the Holders of Securities of each series that it will not
declare or pay any dividends or distributions (other than divi-
dends or distributions in common stock of the Company or other
securities ranking junior in right of payment to the Securities
of a particular series), on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock
or any security ranking pari passu with or junior in right of
payment to the Securities of such series, or make any guarantee
payments with respect to the foregoing (other than pro rata
payments under the Parent Guarantee and any similar Parent
Guarantees issued by the Company on behalf of the holders of
Preferred Securities issued by any issuer holding Securities)
or repurchase, or cause any of the Subsidiaries to repurchase,
any securities of the Company ranking pari passu with or
junior in right of payment to the Securities of such series
(except for payments made on any series of Securities upon
the stated maturity of such Securities); provided that Western
Resources may redeem, purchase, acquire or make a liquidation
payment with respect to any of its capital stock or any
security ranking pari passu with or junior in right of payment
to the Securities of such Series, make any guarantee payment
with respect to the foregoing or repurchase, or cause any of
its subsidiaries to repurchase, any security of Western
Resources ranking pari passu with or junior in right of
payment to the Securities of such series with securities
(or the proceeds from the issuance of securities) having no
higher ranking than the capital stock or the other securities
which are to be redeemed, purchased, acquired, with respect
to which a liquidation payment is to be made, to which a
guarantee payment is to be made with respect to the foregoing
or which are to be repurchased; if at such time (i) there
shall have occurred any event of which the Company has actual
knowledge that (a) with the giving of notice or the lapse of
time or both, would constitute an Event of Default hereunder
with respect to Securities of such series and (b) which the
Company shall not have taken reasonable steps to cure,
(ii) the Company shall be in default with respect to its
payment of any obligations under a Parent Guarantee relating to
the Preferred Securities of the Trust corresponding to which
the Securities of such series have been issued or (iii) the
Company shall have given notice of its selection of an Exten-
sion Period as provided herein with respect to Securities of
such series and such period, or any extension thereof, shall
have commenced and be continuing.
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The Company also covenants, for the benefit of the Holders of
Securities of each series, (i) not to transfer ownership of the Common
Securities of the Trust to which the Securities of such series have been
issued to any person other than an Affiliate of the Company or a successor
of the Company permitted under Article 8 of the Indenture; provided that no
such transfer shall result in (x) the Trust being considered an "investment
company" that is required to be registered under the Investment Company Act
of 1940, as amended, or (y) the Trust not being taxed as a grantor trust
for United States Federal income tax purposes; (ii) not to voluntarily
dissolve, wind up or terminate such Trust, except in connection with a
distribution of the Securities of such series to the holders of the
corresponding Preferred Securities in liquidation of such Trust or in
connection with certain mergers, consolidations or amalgamations permitted
by the Trust Agreement relating to such Trust and (iii) to use its reason-
able efforts, consistent with the terms and provisions of such Trust
Agreement, to cause such Trust to remain a business trust and not to be
classified as an association taxable as a corporation for United States
Federal income tax purposes.
ARTICLE ELEVEN
SUBORDINATION OF SECURITIES
SECTION 1101. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of
a Security, by such ▇▇▇▇▇▇'s acceptance thereof, likewise cove-
nants and agrees that, notwithstanding anything to the contrary
contained herein, to the extent and in the manner hereinafter
set forth in this Article, the indebtedness represented by the
Securities and the payment of the principal of and premium, if
any, and interest on each and all of the Securities are hereby
expressly made subordinate and subject in right of payment to
the prior payment in full in cash or cash equivalents of all
Senior Indebtedness (including any interest accruing after the
occurrence of an Event of Default under Section 501(4) or (5)).
SECTION 1102. Payment Over of Proceeds upon Dissolution, etc.
In the event of (a) any insolvency or bankruptcy case
or proceeding, or any receivership, liquidation, reorganization
or other similar case or proceeding in connection therewith,
relative to the Company or to its creditors, as such, or to its
assets, or (b) any liquidation, dissolution or other winding up
of the Company, whether voluntary or involuntary and whether or
not involving insolvency or bankruptcy, or (c) any assignment
for the benefit of creditors or any other marshalling of assets
and liabilities of the Company, then and in any such event:
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(1) the holders of Senior Indebtedness shall be
entitled to receive payment in full in cash or cash equiv-
alents of all amounts due or to become due on or in
respect of all Senior Indebtedness, or provision shall be
made for such payment in cash or cash equivalents, before
the Holders of the Securities are entitled to receive any
payment on account of principal of (or premium, if any) or
interest on the Securities; and
(2) any payment or distribution of assets of the
Company of any kind or character, whether in cash, prop-
erty or securities, by set-off or otherwise, to which the
Holders or the Trustee would be entitled but for the pro-
visions of this Article Eleven, including any such payment
or distribution which may be payable or deliverable by
reason of the payment of any other indebtedness of the
Company being subordinated to the payment of the Securi-
ties (except, so long as the effect of this parenthetical
clause is not to cause the Securities to be treated in any
case or proceeding or similar event described in Subsec-
tion (a), (b) or (c) of this Section 1102 as part of the
same class of claims as the Senior Indebtedness or any
class of claims on a parity with or senior to the Senior
Indebtedness, for any such payment or distribution of
securities which (i) are unsecured, (ii) have an average
life and final maturity no shorter than the average life
and final maturity of the Securities and (iii) are subor-
dinated, to at least the same extent as the Securities, to
the payment of all Senior Indebtedness then outstanding),
shall be paid by the liquidating trustee or agent or other
person making such payment or distribution, whether a
trustee in bankruptcy, a receiver or liquidating trustee
or otherwise, directly to the holders of Senior Indebted-
ness or their Representative or Representatives or to the
trustee or trustees under any indenture under which any
instruments evidencing any of such Senior Indebtedness may
have been issued, ratably according to the aggregate
amounts remaining unpaid on account of the principal of,
and premium, if any, and interest on, and other amounts
due on or in connection with, the Senior Indebtedness to
the extent necessary to make payment in full in cash or
cash equivalents of all Senior Indebtedness remaining
unpaid, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness;
and
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(3) in the event that, notwithstanding the foregoing
provisions of this Section, the Trustee or the Holder of
any Security shall have received any such payment or dis-
tribution of assets of the Company of any kind or char-
acter, whether in cash, property or securities, including
any such payment or distribution which may be payable or
deliverable by reason of the payment of any other indebt-
edness of the Company being subordinated to the payment of
the Securities, before all Senior Indebtedness is paid in
full or payment thereof provided for, then and in such
event such payment or distribution shall be paid over or
delivered forthwith to the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee, agent
or other Person making payment or distribution of assets
of the Company for application to the payment of all
Senior Indebtedness remaining unpaid to the extent neces-
sary to pay all Senior Indebtedness in full in cash or
cash equivalents, after giving effect to any concurrent
payment or distribution to or for the holders of Senior
Indebtedness.
The consolidation of the Company with, or the merger
of the Company into, another corporation or the liquidation or
dissolution of the Company following the conveyance, transfer
or lease of its properties and assets substantially as an
entirety to another corporation upon the terms and conditions
set forth in Article Eight shall not be deemed a dissolution,
winding up, liquidation, reorganization, assignment for the
benefit of creditors or marshalling of assets and liabilities
of the Company for the purposes of this Section 1102 if the
corporation formed by such consolidation or into which the Com-
pany is merged or the corporation which acquires by conveyance,
transfer or lease such properties and assets substantially as
an entirety, as the case may be, shall, as a part of such con-
solidation, merger, conveyance, transfer or lease, comply with
the conditions set forth in Article Eight.
SECTION 1103. No Payment When Senior Indebtedness in Default.
(i) In the event of and during the continuation of
any default in the payment of principal of (or premium, if any)
or interest on any Senior Indebtedness or (ii) in the event
that any other event of default with respect to any Senior
Indebtedness shall have occurred and be continuing and shall
have resulted in such Senior Indebtedness becoming or being
declared due and payable prior to the date on which it would
otherwise have become due and payable, then no payment shall be
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made by the Company on account of the principal of (or premium,
if any) or interest on the Securities or on account of the pur-
chase or redemption or other acquisition of Securities unless
and until such payment default shall have been cured or waived
or shall have ceased to exist or such acceleration shall have
been rescinded or annulled or the holders of such Senior
Indebtedness or their agents have waived the benefits of this
Section.
In the event that, notwithstanding the foregoing, the
Company shall make any payment to the Trustee or the Holder of
any Security prohibited by the foregoing provisions of this
Section, then and in such event such payment shall be received
and held in trust for the holders of Senior Indebtedness and
shall be paid over or delivered to the Representative of Senior
Indebtedness then outstanding to the extent necessary to pay in
full in cash or cash equivalents all Senior Indebtedness.
The provisions of this Section shall not apply to any
payment with respect to which Section 1102 would be applicable.
SECTION 1104. Payment Permitted if No Default.
Nothing contained in this Article or elsewhere in
this Indenture or in any of the Securities shall prevent the
Company, at any time except during the pendency of any case,
proceeding, dissolution, liquidation or other winding up,
assignment for the benefit of creditors or other marshalling of
assets and liabilities of the Company referred to in Section
1102 or under the conditions described in Section 1103, from
making payments at any time of principal of (and premium, if
any) or interest on the Securities.
SECTION 1105. Subrogation to Rights of Holders of Senior
Indebtedness.
Subject to the payment in full of all Senior Indebt-
edness, the Holders of the Securities shall be subrogated
(equally and ratably with the holders of all indebtedness of
the Company which by its express terms is subordinated to
Senior Indebtedness of the Company to the same extent as the
Securities are subordinated and which is entitled to like
rights of subrogation) to the rights of the holders of such
Senior Indebtedness to receive payments and distributions of
cash, property and securities applicable to the Senior Indebt-
edness until the principal of (and premium, if any) and inter-
est on the Securities shall be paid in full. For purposes of
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such subrogation, no payments or distributions to the holders
of Senior Indebtedness of any cash, property or securities to
which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article, and no pay-
ments over pursuant to the provisions of this Article to the
holders of Senior Indebtedness by Holders of the Securities or
the Trustee, shall, as among the Company, its creditors other
than holders of Senior Indebtedness, and the Holders of the
Securities, be deemed to be a payment or distribution by the
Company to or on account of the Senior Indebtedness.
SECTION 1106. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended
solely for the purpose of defining the relative rights of the
Holders of the Securities on the one hand and the holders of
Senior Indebtedness on the other hand. Nothing contained in
this Article or elsewhere in this Indenture or in the Securi-
ties is intended to or shall (a) impair, as among the Company,
its creditors other than holders of Senior Indebtedness and the
Holders of the Securities, the obligation of the Company, which
is absolute and unconditional, to pay to the Holders of the
Securities the principal of (and premium, if any) and interest
on the Securities as and when the same shall become due and
payable in accordance with their terms; or (b) affect the rela-
tive rights against the Company of the Holders of the Securi-
ties and creditors of the Company other than the holders of
Senior Indebtedness; or (c) prevent the Trustee or the Holder
of any Security from exercising all remedies otherwise permit-
▇▇▇ by applicable law upon default under this Indenture, sub-
ject to the express limitations set forth in Article Five and
to the rights, if any, under this Article of the holders of
Senior Indebtedness (1) in any case, proceeding, dissolution,
liquidation or other winding up, assignment for the benefit of
creditors or other marshalling of assets and liabilities of the
Company referred to in Section 1102, to receive, pursuant to
and in accordance with such Section, cash, property and securi-
ties otherwise payable or deliverable to the Trustee or such
Holder, or (2) under the conditions specified in Section 1103,
to prevent any payment prohibited by such Section.
SECTION 1107. Trustee to Effectuate Subordination.
Each Holder of a Security by such ▇▇▇▇▇▇'s acceptance
thereof authorizes and directs the Trustee on such ▇▇▇▇▇▇'s
behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article and
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appoints the Trustee his attorney-in-fact for any and all such
purposes.
With respect to the holders of Senior Indebtedness,
the Trustee undertakes to perform or to observe only such of
its covenants and obligations as are specifically set forth in
this Article Eleven, and no implied covenants or obligations
with respect to the holders of Senior Indebtedness shall be
read into this Indenture against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and, subject to the provisions of Section
601, the Trustee shall not be liable to any holder of Senior
Indebtedness if it shall pay over or deliver to holders of
Securities, the Company or any other Person money or assets to
which any holder of Senior Indebtedness shall be entitled by
virtue of this Article Eleven or otherwise.
SECTION 1108. No Waiver of Subordination Provisions.
No right of any present or future holder of any
Senior Indebtedness to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or any
non-compliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge
thereof any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the
foregoing paragraph, the holders of Senior Indebtedness may, at
any time and from time to time, without the consent of or
notice to the Trustee or the Holders of the Securities, without
incurring responsibility to the Holders of the Securities and
without impairing or releasing the subordination provided in
this Article or the obligations hereunder of the Holders of the
Securities to the holders of Senior Indebtedness, do any one or
more of the following: (a) change the manner, place or terms of
payment or extend the time of payment of, or renew or alter,
Senior Indebtedness or any instrument evidencing the same or
any agreement under which Senior Indebtedness is outstanding;
(b) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness;
(c) release any Person liable in any manner for the collection
of Senior Indebtedness; and (d) exercise or refrain from exer-
cising any rights against the Company and any other Person.
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SECTION 1109. Notice to Trustee.
The Company shall give prompt written notice to the
Trustee of any fact known to the Company which would prohibit
the making of any payment to or by the Trustee in respect of
the Securities. Notwithstanding the provisions of this Article
or any other provision of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any facts which
would prohibit the making of any payments to or by the Trustee
in respect of the Securities, unless and until the Trustee
shall have received written notice thereof at the Corporate
Trust Office of the Trustee from the Company or a holder of
Senior Indebtedness or from any trustee, fiduciary or agent
therefore; and, prior to the receipt of any such written
notice, the Trustee, subject to the provisions of Section 602,
shall be entitled in all respects to assume that no such facts
exist; provided, however, that if the Trustee shall not have
received the notice provided for in this Section 1109 at least
three Business Days prior to the date upon which by the terms
hereof any money may become payable for any purpose (including,
without limitation, the payment of the principal of (and pre-
mium, if any) or interest on any Security), then, anything
herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such money and
to apply the same to the purpose for which such money was
received and shall not be affected by any notice to the con-
trary which may be received by it within three Business Days
prior to such date. Nothing in this Section 1109 shall limit
the right of the holders of Senior Indebtedness to recover pay-
ments as contemplated by Sections 1102 and 1103.
Subject to the provisions of Section 602, the Trustee
shall be entitled to rely on the delivery to it of a written
notice by a Person representing such Person to be a holder of
Senior Indebtedness (or a trustee, fiduciary or agent therefor)
to establish that such notice has been given by a holder of
Senior Indebtedness (or a trustee, fiduciary or agent there-
for). In the event that the Trustee determines in good faith
that further evidence is required with respect to the right of
any Person as a holder of Senior Indebtedness to participate in
any payment or distribution pursuant to this Article, the Trus-
tee may request such Person to furnish evidence to the reason-
able satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, the extent to which such Per-
son is entitled to participate in such payment or distribution
and any other facts pertinent to the rights of such Person
under this Article, and if such evidence is not furnished, the
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Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such
payment.
SECTION 1110. Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets of the
Company referred to in this Article, the Trustee, subject to
the provisions of Section 602, and the Holders of the Securi-
ties shall be entitled to rely upon any order or decree entered
by any court of competent jurisdiction in which such insol-
vency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pend-
ing, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of
creditors, agent or other Person making such payment or distri-
bution, delivered to the Trustee or to the Holders of Securi-
ties, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of
Senior Indebtedness and other indebtedness of the Company, the
amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or
to this Article.
SECTION 1111. Rights of Trustee as a Holder of Senior Indebt-
edness; Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be enti-
tled to all the rights set forth in this Article with respect
to any Senior Indebtedness which may at any time be held by it,
to the same extent as any other holder of Senior Indebtedness,
and nothing in this Indenture shall deprive the Trustee of any
of its rights as such holder.
Nothing in this Article shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 607.
SECTION 1112. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the
Trustee shall have been appointed by the Company and be then
acting hereunder, the term "Trustee" as used in this Article
shall in such case (unless the context otherwise requires) be
construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if
such Paying Agent were named in this Article in addition to or
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in place of the Trustee; provided, however, that (i) Section
1111 shall not apply to the Company or any Affiliate of the
Company if it or such Affiliate acts as Paying Agent and
(ii) any notice required by this Article Eleven to be given by
the holders of, or a Representative for, Senior Indebtedness
need only be given to the Trustee and not to any Paying Agent.
ARTICLE TWELVE
REDEMPTION OF SECURITIES
SECTION 1201. Applicability of Article.
Securities of any series which are redeemable before
their stated maturity shall be redeemable in accordance with
their terms and (except as otherwise specified as contemplated
by Section 301 for such Securities) in accordance with this
Article.
SECTION 1202. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities
pursuant to Section 1201 shall be evidenced by a Board Resolu-
tion or in another manner specified as contemplated by
Section 301 for such Securities. In case of any redemption at
the election of the Company, the Company shall, at least 30
days and no more than 90 days prior to the Redemption Date
fixed by the Company, notify the Trustee of such Redemption
Date and of the principal amount of Securities to be redeemed
and provide a copy of the notice of redemption given to Holders
of Securities to be redeemed pursuant to Section 1204.
SECTION 1203. Selection by Trustee of Securities to Be
Redeemed.
If less then all the Securities of any series are to
be redeemed (unless such redemption affects only a single Secu-
rity), the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series not
previously called for redemption, by such method (including pro
rata or by lot) as the Trustee shall deem fair and appropriate
and which may provide for the selection for redemption of por-
tions (equal to $25 or any integral multiple thereof) of the
principal amount of the Securities of such series.
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The Trustee shall promptly notify the Company in
writing of the Securities selected for redemption as aforesaid
and, in case of any Securities selected for partial redemption
as aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall
not apply with respect to any redemption affecting only a sin-
gle Security, whether such Security is to be redeemed in whole
or in part. In the case of any such redemption in part, the
unredeemed portion of the principal amount of the Security
shall be in an authorized denomination (which shall not be less
than the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the con-
text otherwise requires, all provisions relating to the redemp-
tion 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 1204. Notice of Redemption.
Notice of redemption shall be given by first-class
mail, postage prepaid, mailed not less than 30 nor more than 90
days prior to the Redemption Date, to each Holder of Securities
to be redeemed, at his address appearing in the Securities Reg-
ister. If at the time of mailing of any notice of redemption
the Company shall not have deposited with the Trustee (and/or
irrevocably directed the Trustee to apply, from money held by
it available to be used for the redemption of Securities) an
amount in cash sufficient to redeem all of the Securities to be
redeemed, including accrued interest to such Redemption Date,
such notice shall state that the proposed redemption to which
such notice relates is subject to the deposit of such amount
with the Trustee on or before the Redemption Date.
All notices of redemption shall identify the Securi-
ties to be redeemed (including CUSIP number) and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of
any series consisting of more than a single Security are
to be redeemed, the identification (and, in the case of
the partial redemption of any such Securities, the
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principal amounts) of the particular Securities to be
redeemed and, if less than all the Outstanding Securities
of any series consisting of a single Security are to be
redeemed, the principal amount of the particular Security
to be redeemed,
(4) that on the Redemption Date the Redemption Price
will become due and payable upon each such Security to be
redeemed and that interest thereon will cease to accrue on
and after said date, and
(5) the place or placement where such Securities are
to be surrendered for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at
the election of the Company shall be given by the Company or,
at the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION 1205. Deposit of Redemption Price.
Prior to 12:00 noon, New York time, on any Redemption
Date, the Company shall deposit with the Trustee or with a Pay-
ing Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003)
an amount of money sufficient to pay the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment
Date) accrued interest on, all the Securities which are to be
redeemed on that date.
SECTION 1206. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid
and the Company having on or before the Redemption Date depos-
ited with the Trustee (and/or having irrevocably directed the
Trustee to apply, from money held by it available to be used
for the redemption of Securities) an amount in cash sufficient
to redeem all of the Securities to be redeemed, the Securities
so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and
after such date, such Securities shall cease to bear interest.
Upon surrender of any such Security for redemption in accor-
dance with said notice, such Security shall be paid by the Com-
pany at the Redemption Price, together with accrued interest to
the Redemption Date; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one
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or more Predecessor Securities, registered as such at the close
of business on the relevant Record Dates according to their
terms and the provisions of Section 307.
If any Security called for redemption shall not be so
paid upon surrender thereof for redemption, such Security shall
remain outstanding and shall, until paid, bear interest from
the Redemption Date at the rate borne by the Security.
SECTION 1207. Securities Redeemed in Part.
Any Security which is to be redeemed only in part
shall be surrendered at a place of payment therefor (with, if
the Company or the Trustee so requires, due endorsement by, or
a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or
such ▇▇▇▇▇▇'s attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge,
a new Security or Securities, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal
to and in exchange for the unredeemed portion of the principal
of the Security so surrendered.
_________________
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 consti-
tute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, and their respective corpo-
rate seals to be hereunto affixed and attested, all as of the
day and year first above written.
WESTERN RESOURCES, INC.
By:____________________________
Name:
Title:
Attest:
___________________________
By:____________________________
Name:
Title:
Attest:
___________________________
STATE OF _________)
) ss.:
COUNTY OF ________)
On the ____ day of ________, 1995, before me person-
ally came ________, to me known, who, being by me duly sworn,
did depose and say that he/she is the ________ of Western
Resources, Inc., one of the corporations described in and which
executed the foregoing instrument; and that he/she signed
his/her name thereto by authority of the Board of Directors of
such corporation.
______________________________