Exhibit 4.4
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MADISON GAS AND ELECTRIC COMPANY
AND
BANK ONE, N.A., AS TRUSTEE
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INDENTURE
DATED AS OF ________ _, 1998
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TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS . . . . . . . . . . . .1
Section 1.01. General . . . . . . . . . . . . . . . . . . . . . . . . .1
Section 1.02. TIA . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Section 1.03. Other Definitions . . . . . . . . . . . . . . . . . . . .2
Accrued Interest. . . . . . . . . . . . . . . . . . . . . . . . . .2
Accrued Interest Factor . . . . . . . . . . . . . . . . . . . . . .2
Amortized Face Amount . . . . . . . . . . . . . . . . . . . . . . .2
Amortizing Note . . . . . . . . . . . . . . . . . . . . . . . . . .3
Authenticating Agent. . . . . . . . . . . . . . . . . . . . . . . .3
Authorized Agent. . . . . . . . . . . . . . . . . . . . . . . . . .3
Authorized Newspaper. . . . . . . . . . . . . . . . . . . . . . . .3
Basis Point . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
Board of Directors. . . . . . . . . . . . . . . . . . . . . . . . .4
Board Resolution. . . . . . . . . . . . . . . . . . . . . . . . . .4
Bond Indenture. . . . . . . . . . . . . . . . . . . . . . . . . . .4
Business Day. . . . . . . . . . . . . . . . . . . . . . . . . . . .4
Calculation Agent . . . . . . . . . . . . . . . . . . . . . . . . .4
Calculation Date. . . . . . . . . . . . . . . . . . . . . . . . . .4
Commercial Paper Rate . . . . . . . . . . . . . . . . . . . . . . .4
Commercial Paper Rate Interest Determination Date . . . . . . . . .5
Commercial Paper Rate Notes . . . . . . . . . . . . . . . . . . . .5
Common Shareholders Equity. . . . . . . . . . . . . . . . . . . . .5
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
Company Order . . . . . . . . . . . . . . . . . . . . . . . . . . .6
Composite Quotations. . . . . . . . . . . . . . . . . . . . . . . .8
Corporate Trust Office of the Trustee . . . . . . . . . . . . . . .8
CUSIP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
Depositary. . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
Designated LIBOR Page . . . . . . . . . . . . . . . . . . . . . . .8
Discharged. . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
Event of Default. . . . . . . . . . . . . . . . . . . . . . . . . .9
Extension Notice. . . . . . . . . . . . . . . . . . . . . . . . . .9
Extension Period. . . . . . . . . . . . . . . . . . . . . . . . . .9
Final Maturity Date . . . . . . . . . . . . . . . . . . . . . . . 10
First Mortgage Bonds. . . . . . . . . . . . . . . . . . . . . . . 10
Fixed Rate Amortizing Note. . . . . . . . . . . . . . . . . . . . 10
Fixed Rate Note . . . . . . . . . . . . . . . . . . . . . . . . . 10
Floating Rate Note. . . . . . . . . . . . . . . . . . . . . . . . 10
Global Note . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
H.15(519):. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Index Maturity. . . . . . . . . . . . . . . . . . . . . . . . . . 11
Initial Interest Rate . . . . . . . . . . . . . . . . . . . . . . 11
Initial Redemption Date . . . . . . . . . . . . . . . . . . . . . 11
Interest Accrual Period . . . . . . . . . . . . . . . . . . . . . 11
Interest Determination Date . . . . . . . . . . . . . . . . . . . 12
Interest Factor . . . . . . . . . . . . . . . . . . . . . . . . . 12
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . 12
Interest Rate . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Interest Rate Basis; Base Rate. . . . . . . . . . . . . . . . . . 13
Interest Reset Date . . . . . . . . . . . . . . . . . . . . . . . 13
Interest Reset Period . . . . . . . . . . . . . . . . . . . . . . 14
Issue Price . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
LIBOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
LIBOR Interest Determination Date . . . . . . . . . . . . . . . . 16
LIBOR Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
London Business Day . . . . . . . . . . . . . . . . . . . . . . . 16
Maturity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Maximum Interest Rate . . . . . . . . . . . . . . . . . . . . . . 17
Minimum Interest Rate . . . . . . . . . . . . . . . . . . . . . . 17
Money Market Yield. . . . . . . . . . . . . . . . . . . . . . . . 17
Note or Notes; Outstanding. . . . . . . . . . . . . . . . . . . . 17
Noteholder; Holder. . . . . . . . . . . . . . . . . . . . . . . . 18
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . 18
Opinion of Counsel. . . . . . . . . . . . . . . . . . . . . . . . 18
Optional Interest Reset Date: . . . . . . . . . . . . . . . . . . 19
Original Issue Date . . . . . . . . . . . . . . . . . . . . . . . 19
Original Issue Discount Note. . . . . . . . . . . . . . . . . . . 19
Permitted Encumbrances. . . . . . . . . . . . . . . . . . . . . . 19
Person. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Pre-Exercise Stated Maturity Date . . . . . . . . . . . . . . . . 22
Prime Rate. . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Prime Rate Interest Determination Date. . . . . . . . . . . . . . 23
Prime Rate Notes. . . . . . . . . . . . . . . . . . . . . . . . . 23
Principal Amount. . . . . . . . . . . . . . . . . . . . . . . . . 23
Principal Executive Offices of the Company. . . . . . . . . . . . 23
Principal Facility. . . . . . . . . . . . . . . . . . . . . . . . 24
Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . 24
Reset Note. . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Reset Notice. . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . 25
Reuters Screen USPRIME1 . . . . . . . . . . . . . . . . . . . . . 25
Spread. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Spread Multiplier . . . . . . . . . . . . . . . . . . . . . . . . 26
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . 26
Subsequent Interest Period. . . . . . . . . . . . . . . . . . . . 26
Subsidiary. . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Treasury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Treasury Bills. . . . . . . . . . . . . . . . . . . . . . . . . . 26
Treasury Rate . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Treasury Rate Interest Determination Date . . . . . . . . . . . . 27
Treasury Rate Notes . . . . . . . . . . . . . . . . . . . . . . . 28
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . 28
Wholly-Owned Subsidiary . . . . . . . . . . . . . . . . . . . . . 28
ii
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . . 28
Zero Coupon Note. . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE TWO
FORM, ISSUE, EXECUTION, REGISTRATION AND
EXCHANGE OF NOTES . . . . . . . . . . . 29
Section 2.01. Form Generally. . . . . . . . . . . . . . . . . . . . . 29
Section 2.02. Form of Trustee's Certificate of
Authentication. . . . . . . . . . . . . . . . . . . . . 29
Section 2.03. Amount Unlimited. . . . . . . . . . . . . . . . . . . . 30
Section 2.04. Denominations, Dates, Interest Payment
and Record Dates. . . . . . . . . . . . . . . . . . . . 30
Section 2.05. Execution, Authentication, Delivery
and Dating. . . . . . . . . . . . . . . . . . . . . . . 32
Section 2.06. Exchange and Registration of Transfer
of Notes. . . . . . . . . . . . . . . . . . . . . . . . 34
Section 2.07. Mutilated, Destroyed, Lost or Stolen
Notes . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 2.08. Temporary Notes . . . . . . . . . . . . . . . . . . . . 37
Section 2.09. Cancellation of Notes Paid, etc . . . . . . . . . . . . 37
Section 2.10. Interest Rights Preserved . . . . . . . . . . . . . . . 37
Section 2.11. Payment of Notes. . . . . . . . . . . . . . . . . . . . 37
Section 2.12. Notes Issuable in the Form of a Global
Note. . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 2.13. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE THREE
REDEMPTION OF NOTES; REPAYMENT PRIOR TO
STATED MATURITY. . . . . . . . . . . . 41
Section 3.01. Applicability of Redemption Provisions. . . . . . . . . 41
Section 3.02. Notice of Redemption; Selection of Notes. . . . . . . . 42
Section 3.03. Payment of Notes on Redemption; Deposit
of Redemption Price . . . . . . . . . . . . . . . . . . 43
Section 3.04. Repayment at the Option of the Holder . . . . . . . . . 44
Section 3.05. Extension . . . . . . . . . . . . . . . . . . . . . . . 45
Section 3.06. Reset Notes . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE FOUR
FIRST MORTGAGE BONDS. . . . . . . . . . . 47
Section 4.01. Issuance Restrictions . . . . . . . . . . . . . . . . . 47
Section 4.02. First Mortgage Bonds held by the Trustee. . . . . . . . 48
Section 4.03. Trustee to Exercise Rights of First
Mortgage Bondholder . . . . . . . . . . . . . . . . . . 48
Section 4.04. No Transfer of First Mortgage Bonds;
Exception . . . . . . . . . . . . . . . . . . . . . . . 48
iii
Section 4.05. Release of First Mortgage Bonds . . . . . . . . . . . . 48
Section 4.06. Voting of First Mortgage Bonds. . . . . . . . . . . . . 49
Section 4.07. Discharge of Bond Indenture . . . . . . . . . . . . . . 49
ARTICLE FIVE
SATISFACTION AND DISCHARGE; UNCLAIMED MONEYS. . . . . 50
Section 5.01. Satisfaction and Discharge. . . . . . . . . . . . . . . 50
Section 5.02. Deposited Moneys to Be Held in Trust by
Trustee . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 5.03. Return of Unclaimed Moneys. . . . . . . . . . . . . . . 52
Section 5.04. Reinstatement . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE SIX
PARTICULAR COVENANTS OF THE COMPANY. . . . . . . 52
Section 6.01. Payment of Principal, Premium and
Interest. . . . . . . . . . . . . . . . . . . . . . . . 52
Section 6.02. Office for Notices and Payments, etc. . . . . . . . . . 53
Section 6.03. Appointments to Fill Vacancies in
Trustee's Office. . . . . . . . . . . . . . . . . . . . 53
Section 6.04. Annual Statement and Notice . . . . . . . . . . . . . . 53
Section 6.05. Corporate Existence . . . . . . . . . . . . . . . . . . 53
Section 6.06. Limitation Upon Mortgages and Liens . . . . . . . . . . 54
Section 6.07. Waiver of Certain Covenants . . . . . . . . . . . . . . 54
ARTICLE SEVEN
NOTEHOLDER LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE . . . . . . . . . . . 54
Section 7.01. Noteholder Lists. . . . . . . . . . . . . . . . . . . . 54
Section 7.02. Securities and Exchange Commission
Reports . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 7.03. Reports by the Trustee. . . . . . . . . . . . . . . . . 55
ARTICLE EIGHT
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS
ON EVENT OF DEFAULT. . . . . . . . . . . 55
Section 8.01. Events of Default . . . . . . . . . . . . . . . . . . . 55
Section 8.02. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . . . . . . . . 57
Section 8.03. Collection and Suits for Enforcement by
Trustee . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 8.04. Trustee May File Proofs of Claim. . . . . . . . . . . . 59
Section 8.05. Trustee May Enforce Claims Without
Possession of Notes . . . . . . . . . . . . . . . . . . 60
Section 8.06. Application of Moneys Collected by
Trustee . . . . . . . . . . . . . . . . . . . . . . . . 60
iv
Section 8.07. Proceedings by Noteholders. . . . . . . . . . . . . . . 61
Section 8.08. Proceedings by Trustee. . . . . . . . . . . . . . . . . 62
Section 8.09. Remedies Cumulative and Continuing. . . . . . . . . . . 62
Section 8.10. Restoration of Rights and Remedies. . . . . . . . . . . 62
Section 8.11. Direction of Proceedings and Waiver of
Defaults by Majority Noteholders. . . . . . . . . . . . 63
Section 8.12. Notice of Default . . . . . . . . . . . . . . . . . . . 63
Section 8.13. Undertaking to Pay Costs. . . . . . . . . . . . . . . . 64
ARTICLE NINE
CONCERNING THE TRUSTEE. . . . . . . . . . 64
Section 9.01. Certain Duties and Responsibilities . . . . . . . . . . 64
Section 9.02. Notice of Defaults. . . . . . . . . . . . . . . . . . . 65
Section 9.03. Certain Rights of Trustee . . . . . . . . . . . . . . . 66
Section 9.04. Not Responsible for Recitals or Issuance
of Notes. . . . . . . . . . . . . . . . . . . . . . . . 67
Section 9.05. May Hold Notes. . . . . . . . . . . . . . . . . . . . . 67
Section 9.06. Money Held in Trust . . . . . . . . . . . . . . . . . . 67
Section 9.07. Compensation and Reimbursement. . . . . . . . . . . . . 68
Section 9.08. Disqualification; Conflicting Interests . . . . . . . . 68
Section 9.09. Corporate Trustee Required; Eligibility . . . . . . . . 74
Section 9.10. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . . . . . . 74
Section 9.11. Acceptance of Appointment by Successor. . . . . . . . . 76
Section 9.12. Merger, Conversion, Consolidation or
Succession to Business. . . . . . . . . . . . . . . . . 76
Section 9.13. Preferential Collection of Claims
Against Company . . . . . . . . . . . . . . . . . . . . 77
Section 9.14. Appointment of Authenticating Agent . . . . . . . . . . 81
ARTICLE TEN
CONCERNING THE NOTEHOLDERS . . . . . . . . 83
Section 10.01. Action by Noteholders . . . . . . . . . . . . . . . . . 83
Section 10.02. Proof of Execution by Noteholders . . . . . . . . . . . 83
Section 10.03. Who Deemed Absolute Owners. . . . . . . . . . . . . . . 84
Section 10.04. Company-Owned Notes Disregarded . . . . . . . . . . . . 84
Section 10.05. Revocation of Consents; Future Holders
Bound . . . . . . . . . . . . . . . . . . . . . . . . . 84
Section 10.06. Record Date for Noteholder Acts . . . . . . . . . . . . 85
ARTICLE ELEVEN. . . . . . . . . . . . 85
NOTEHOLDERS' MEETING . . . . . . . . . . 85
Section 11.01. Purposes of Meetings. . . . . . . . . . . . . . . . . . 85
Section 11.02. Call of Meetings by Trustee . . . . . . . . . . . . . . 86
Section 11.03. Call of Meetings by Company or
Noteholders . . . . . . . . . . . . . . . . . . . . . . 86
Section 11.04. Qualifications for Voting . . . . . . . . . . . . . . . 86
v
Section 11.05. Regulations . . . . . . . . . . . . . . . . . . . . . . 86
Section 11.06. Voting. . . . . . . . . . . . . . . . . . . . . . . . . 87
Section 11.07. Right of Trustee or Noteholders not
Delayed . . . . . . . . . . . . . . . . . . . . . . . . 88
ARTICLE TWELVE. . . . . . . . . . . . 88
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE . . . . . . . . . . . 88
Section 12.01. Company May Consolidate, etc., only
on Certain Terms. . . . . . . . . . . . . . . . . . . . 88
Section 12.02. Successor Corporation Substituted . . . . . . . . . . . 89
ARTICLE THIRTEEN
SUPPLEMENTAL INDENTURES. . . . . . . . . . 90
Section 13.01. Supplemental Indentures without Consent
of Noteholders. . . . . . . . . . . . . . . . . . . . . 90
Section 13.02. Supplemental Indentures with Consent of
Noteholders . . . . . . . . . . . . . . . . . . . . . . 91
Section 13.03. Compliance with Trust Indenture Act;
Effect of Supplemental Indentures . . . . . . . . . . . 92
Section 13.04. Notation on Notes . . . . . . . . . . . . . . . . . . . 93
Section 13.05. Evidence of Compliance of Supplemental
Indenture to Be Furnished Trustee . . . . . . . . . . . 93
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS. . . . . . . . . . 93
Section 14.01. Indenture and Notes Solely Corporate
Obligations . . . . . . . . . . . . . . . . . . . . . . 93
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS. . . . . . . . . . 94
Section 15.01. Provisions Binding on Company's
Successors. . . . . . . . . . . . . . . . . . . . . . . 94
Section 15.02. Official Acts by Successor Corporation. . . . . . . . . 94
Section 15.03. Addresses for Notices, etc. . . . . . . . . . . . . . . 94
Section 15.04. Governing Law . . . . . . . . . . . . . . . . . . . . . 94
Section 15.05. Evidence of Compliance with Conditions
Precedent . . . . . . . . . . . . . . . . . . . . . . . 94
Section 15.06. Business Days . . . . . . . . . . . . . . . . . . . . . 96
Section 15.07. Trust Indenture Act to Control. . . . . . . . . . . . . 96
Section 15.08. Table of Contents, Headings, etc. . . . . . . . . . . . 96
Section 15.09. Execution in Counterparts . . . . . . . . . . . . . . . 96
Section 15.10. Manner of Mailing Notice to Noteholders . . . . . . . . 96
vi
EXHIBIT A - Global Fixed Rate Note. . . . . . . . . . . . . . . .A-1
EXHIBIT B - Fixed Rate Note . . . . . . . . . . . . . . . . . . .B-1
EXHIBIT C - Global Floating Rate Note . . . . . . . . . . . . . .C-1
EXHIBIT D - Floating Rate Note. . . . . . . . . . . . . . . . . .D-1
vii
TIE-SHEET
of provisions of Trust Indenture Act of 1939 with Indenture dated as of
________ _, 1998, between Madison Gas and Electric Company and Bank One, N.A.,
as trustee.
SECTION OF ACT SECTION OF INDENTURE
-------------- --------------------
310(a)(1) and (2) ................... 9.09
310(a)(3) and (4) ................... Not applicable
310(a)(5) ........................... 9.08
310(b) .............................. 9.08 and 9.10
310(c) .............................. Not applicable
311(a) and (b) ...................... 9.13
311(c) .............................. Not applicable
312(a) .............................. 7.01
312(b) and (c) ...................... 7.01
313(a) .............................. 7.03
313(b)(1) ........................... Not applicable
313(b)(2) ........................... 7.03
313(c) .............................. 7.03
313(d) .............................. 7.03
314(a) .............................. 6.04, 7.02
314(b) .............................. Not applicable
314(c)(1) and (2) ................... 15.05
314(c)(3) ........................... Not applicable
314(d) .............................. Not applicable
314(e) .............................. 15.05
314(f) .............................. Not applicable
315(a), (c) and (d) ................. 9.01
315(b) .............................. 8.12; 9.02
315(e) .............................. 8.13
316(a)(1) ........................... 8.01 and 8.11
316(a)(2) ........................... Omitted
316(a) last sentence ................ 10.04
316(b) .............................. 8.07
316(c) .............................. 10.06
317(a)(1)............................ 8.03
317(a)(2)............................ 8.04
317(b) .............................. Omitted
318(a) .............................. 15.07
_________________________
This tie-sheet does not constitute a part of the Indenture.
THIS INDENTURE, dated as of ________ _, 1998, between Madison Gas and
Electric Company, a corporation duly organized and existing under the laws of
the State of Wisconsin (hereinafter sometimes called the "Company"), and Bank
One, N.A., a national banking association organized and existing under the laws
of the United States of America, as trustee (hereinafter called the "Trustee").
W I T N E S S E T H:
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of its Medium-Term Notes (hereinafter sometimes
called "Notes"), to be issued as in this Indenture provided;
AND WHEREAS, all acts and things necessary to make this Indenture a
valid agreement according to its terms have been done and performed, and the
execution of this Indenture and the issue hereunder of the Notes have in all
respects been duly authorized;
NOW THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the Notes
are, and are to be authenticated, issued and delivered, and in consideration of
the premises, of the purchase and acceptance of the Notes by the Holders thereof
and of the sum of one dollar duly paid to it by the Trustee at the execution of
these presents, the receipt whereof is hereby acknowledged, the Company
covenants and agrees with the Trustee for the equal and proportionate benefit of
the respective Holders from time to time of the Notes, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. GENERAL. The terms defined in this Article One (except
as herein otherwise expressly provided or unless the context otherwise requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Article One.
SECTION 1.02. TIA. (a) Whenever this Indenture refers to a
provision of the Trust Indenture Act of 1939, as amended ("TIA"), such provision
is incorporated by reference in and made a part of this Indenture. The
following TIA terms incorporated in this Indenture have the following meanings:
"indenture securities" means the Notes.
"indenture note holder" means a Noteholder or a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company.
(b) All terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by a rule of the
Securities and Exchange Commission have the meanings assigned to them in the TIA
or such statute or rule as in force on the date of execution of this Indenture.
SECTION 1.03. OTHER DEFINITIONS. For purposes of this Indenture, the
following terms have the following meanings:
ACCRUED INTEREST:
The term "Accrued Interest" at any Interest Payment Date (a) for a
Floating Rate Note shall mean the amount obtained by multiplying the principal
amount of such Floating Rate Note by its Accrued Interest Factor, and (b) for a
Fixed Rate Note, shall mean the amount obtained by multiplying the principal
amount of such Fixed Rate Note by its Interest Rate, and multiplying the product
thus obtained by a fraction, the numerator of which is the number of days in the
Interest Reset Period for such Note ending on such Interest Payment Date based
on a 360-day year of twelve 30-day months, and the denominator of which is 360.
ACCRUED INTEREST FACTOR:
The term "Accrued Interest Factor" at any Interest Payment Date for a
Floating Rate Note shall mean the sum of the Interest Factors for such Floating
Rate Note calculated for each day in the Interest Reset Period for such Note
ending on such Interest Payment Date or the prior Record Date, as the case may
be.
AMORTIZED FACE AMOUNT:
The term "Amortized Face Amount" of an Original Issue Discount Note as
of the date that (i) the principal amount of such Note is to be repaid prior to
its Stated Maturity, whether upon declaration of acceleration, call for
redemption, repayment at the option of the Holder or otherwise, or (ii) any
consent, notice, request, direction, waiver or suit by the Noteholders shall be
deemed to be given, made or commenced under this Indenture, shall
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mean the principal amount of such Note multiplied by its Issue Price plus the
portion of the difference between the dollar amount thus obtained and the
principal amount of such Note that has accreted at the Yield to Maturity of
such Note (computed in accordance with generally accepted United States bond
yield computation principles) to such date, but in no event shall the
Amortized Face Amount of an Original Issue Discount Note exceed its principal
amount stated in the applicable Company Order.
AMORTIZING NOTE:
The term "Amortizing Note" shall mean a Note for which payments of
principal of and interest on such Note are made in installments over the life of
such Note, and unless otherwise specified in the applicable Company Order,
payments with respect to an Amortizing Note shall be applied first to interest
due and payable thereon and then to the reduction of the unpaid principal amount
thereof.
AUTHENTICATING AGENT:
The term "Authenticating Agent" shall mean the agent of the Trustee
which shall be appointed and acting pursuant to Section 9.14.
AUTHORIZED AGENT:
The term "Authorized Agent" shall mean an agent of the Company
designated by an Officers' Certificate to give to the Trustee the information
specified in clause (a) of "Company Order" for the issuance of a Note.
AUTHORIZED NEWSPAPER:
The term "Authorized Newspaper" shall mean a newspaper of general
circulation in the relevant area, printed in the English language and
customarily published on each Business Day; whenever successive publications in
an Authorized Newspaper are required by this Indenture, such publications may be
made on the same or different days and in the same or in different Authorized
Newspapers.
BASIS POINT:
The term "Basis Point" shall mean one-one hundredth of a percentage
point.
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BOARD OF DIRECTORS:
The term "Board of Directors" shall mean the Board of Directors of the
Company or the Executive Committee of such Board or any other duly authorized
Committee of such Board.
BOARD RESOLUTION:
The term "Board Resolution" shall mean a copy of a resolution
certified by the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
BOND INDENTURE:
The term "Bond Indenture" shall mean the Indenture of Mortgage and
Deed of Trust dated as of January 1, 1946, from the Company to First Wisconsin
Trust Company (now known as Firstar Trust Company), trustee.
BUSINESS DAY:
The term "Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday that in The City of New York, is not a day on which banking
institutions are authorized or obligated by law, regulation or executive order
to close and, with respect to LIBOR Notes, is also a London Business Day, unless
otherwise specified in the applicable Company Order.
CALCULATION AGENT:
The term "Calculation Agent" for a particular Floating Rate Note shall
mean the Trustee, unless otherwise specified in the applicable Company Order.
CALCULATION DATE:
The term "Calculation Date" shall mean with regard to any particular
Interest Determination Date, the earlier of (i) the tenth calendar day after
such Interest Determination Date, or, if any such day is not a Business Day, the
next day that is a Business Day, or (ii) the Business Day immediately preceding
the applicable Interest Payment Date or Maturity, as the case may be.
COMMERCIAL PAPER RATE:
The term "Commercial Paper Rate" for a particular Floating Rate Note,
unless otherwise indicated in the applicable Company Order, shall mean, with
respect to any Commercial Paper
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Rate Interest Determination Date, the Money Market Yield on such date of the
rate for commercial paper having the Index Maturity specified in such Company
Order, as such rate shall be published in H.15(519) under the heading
"Commercial Paper". In the event that such rate is not published prior to
9:00 A.M., New York City time, on the Calculation Date pertaining to such
Commercial Paper Rate Interest Determination Date, then the Commercial Paper
Rate shall be the Money Market Yield on such Commercial Paper Rate Interest
Determination Date of the rate for commercial paper of the specified Index
Maturity as published in Composite Quotations under the heading "Commercial
Paper". If by 3:00 P.M., New York City time, on such Calculation Date such
rate is not published in either H.15(519) or Composite Quotations, then the
Commercial Paper Rate for such Commercial Paper Rate Interest Determination
Date shall be calculated by the Calculation Agent and shall be the Money
Market Yield of the arithmetic mean of the offered rates (quoted on a bank
discount basis) as of 11:00 A.M., New York City time, on such Commercial
Paper Rate Interest Determination Date of three leading dealers of commercial
paper in The City of New York selected by the Calculation Agent for
commercial paper of the specified Index Maturity placed for an industrial
issuer whose bond rating is "AA", or the equivalent, from a nationally
recognized rating agency; PROVIDED, HOWEVER, that if the dealers selected as
aforesaid by the Calculation Agent are not quoting as set forth above, the
Commercial Paper Rate will be the Commercial Paper Rate immediately prior to
such Commercial Paper Rate Interest Determination Date.
COMMERCIAL PAPER RATE INTEREST DETERMINATION DATE:
The term "Commercial Paper Rate Interest Determination Date"
pertaining to an Interest Reset Date for a Commercial Paper Rate Note shall mean
the second Business Day immediately preceding such Interest Reset Date, unless
otherwise specified in the applicable Company Order.
COMMERCIAL PAPER RATE NOTES:
The term "Commercial Paper Rate Notes" shall mean Floating Rate Notes
which are specified in the applicable Company Order as bearing interest at an
interest rate calculated with reference to the Commercial Paper Rate.
COMMON SHAREHOLDERS EQUITY:
The term "Common Shareholders Equity" shall mean, at any time, the
total shareholders' equity of the Company and its consolidated subsidiaries,
determined on a consolidated basis in accordance with generally accepted
accounting principles, as of the end of the most recently completed fiscal
quarter of the Company for which financial information is then available.
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COMPANY:
The term "Company" shall mean the corporation named as the "Company"
in the first paragraph of this Indenture, and its successors and assigns.
COMPANY ORDER:
The term "Company Order" shall mean:
(a) a written order signed in the name of the Company by the
Chairman of the Board, the President or any Vice President and by the Secretary
or an Assistant Secretary of the Company, and delivered to the Trustee, to
authenticate a Note and to make it available for delivery, and specifying for
such Note the following information:
(1) the name of the Person in which a Note to be issued and
authenticated shall be registered;
(2) the address of such Person;
(3) the taxpayer identification number of such Person;
(4) the principal amount of such Note and, if multiple Notes are to
be issued to such Person, the denominations of such Notes;
(5) the Issue Price of such Note;
(6) the Original Issue Date of such Note;
(7) the date upon which such Note is scheduled to mature, any
Extension Period or Extension Periods, the Final Maturity Date and any
procedures pursuant to which the Holder of such Note may renew such Note;
(8) if the Note is to be redeemable at the option of the Company, the
Initial Redemption Date and the date or dates on which, and the price or
prices at which, such Note is redeemable at the option of the Company;
(9) if the Note is to be repayable prior to Stated Maturity at the
option of the Holder, the date or dates on which, and the price or prices
at which, such Note is repayable at the option of the Holder;
(10) if the Note is a Fixed Rate Note, the rate of interest on such
Note and the Interest Payment Dates, if other
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than January 15 and July 15, and the Record Dates, if other than
January 1 and July 1;
(11) if the Note is an Original Issue Discount Note, its Yield to
Maturity;
(12) if such Note is an Amortizing Note, a table setting forth the
schedule of dates and amounts of payments of principal of and interest on
such Note or the formula for the amortization of principal and/or interest;
(13) if the Note is a Reset Note, the Optional Interest Reset Date and
the formula, if any, for resetting the interest rate of a Fixed Rate Note
or the Spread and/or Spread Multiplier of a Floating Rate Note;
(14) if the Note is a Floating Rate Note, its:
(A) Initial Interest Rate (F) Interest Reset Dates
(B) Interest Rate Basis or (G) Spread
Base Rate (including any (H) Spread Multiplier
Designated LIBOR Page) (I) Maximum Interest Rate
(C) Index Maturity (J) Minimum Interest Rate
(D) Interest Determination (K) Interest Payment Dates
Dates (L) Record Dates
(E) Interest Reset Period
(15) whether or not such Note is to be issued in the form of a Global
Note to the Depositary;
(16) the name and address of the Calculation Agent, if other than the
Trustee;
(17) if other than denominations of $1,000 and integral multiples
thereof, the authorized denominations in which Notes shall be issued; and
(18) all other information necessary for the issuance of such Note not
inconsistent with the provisions of this Indenture; or
(b) confirmation given to the Trustee by an officer of the Company
designated by an Officers' Certificate, by telephone, confirmed by telex or
facsimile or similar writing, of the information given to the Trustee by an
Authorized Agent for the issuance of a Note, and the written order of the
Company to authenticate such Note and to make it available for delivery.
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COMPOSITE QUOTATIONS:
The term "Composite Quotations" shall mean the daily statistical
release "Composite 3:30 P.M. Quotations for U.S. Government Securities" or any
successor publication published by the Federal Reserve Bank of New York.
CORPORATE TRUST OFFICE OF THE TRUSTEE:
The term "Corporate Trust Office of the Trustee" (or other similar
term) shall mean the principal office of the Trustee at which at any particular
time its corporate business shall be administered, which office at the date of
original execution of this Indenture is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Administration, except
that, with respect to presentation of the Notes for payment or registration of
transfers or exchanges and the location of the register, such term means the
office or agency of the Trustee at which at any particular time its corporate
agency business shall be conducted, which at the date of original execution of
this Indenture is located at c/o First Chicago Trust Company of New York, 14
Wall Street, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
CUSIP:
The term "CUSIP" shall mean the registered trademark "Committee on
Uniform Securities Identification Procedures" or "CUSIP" and a unique system of
identification of each public issue of a security owned by the American Bankers
Association and administered by Standard and Poor's Corporation, as agent of the
American Bankers Association.
DEPOSITARY:
The term "Depositary" shall mean, unless otherwise specified by the
Company pursuant to Section 2.05 hereof, The Depository Trust Company, New York,
New York, or any successor thereto registered as a Clearing Agency under the
Securities and Exchange Act of 1934, as amended, or any successor statute or
regulation.
DESIGNATED LIBOR PAGE:
The term "Designated LIBOR Page" shall mean either (a) the display on the
Reuters Monitor Money Rates Service for the purpose of displaying the London
interbank rates of major banks for United States Dollars (if "LIBOR Reuters" is
specified in the applicable Company Order), or (b) the display on the Dow ▇▇▇▇▇
Telerate Service for the purpose of displaying the London interbank rates of
major banks for United States dollars (if "LIBOR Telerate" is
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specified in the applicable Company Order). If neither LIBOR Reuters nor
LIBOR Telerate is specified in the applicable Company Order, LIBOR for United
States dollars will be determined as if LIBOR Telerate (and page 3750) had
been chosen.
DISCHARGED:
The term "Discharged" means, with respect to all Notes at the time
outstanding, that the Company shall be deemed to have paid and discharged the
entire indebtedness represented by, and obligations under, all Notes and to have
satisfied all the obligations under the Indenture relating to such Notes except
(i) the rights of Holders of such Notes to receive, from the trust fund provided
for under Sections 5.01 and 5.02, payment of the principal of (and premium, if
any) and interest on such Notes when such payments are due, (ii) the Company's
obligations with respect to such Notes under Sections 2.06, 2.07 and 6.02 and
(iii) the rights, powers, trusts, duties and immunities of the Trustee under the
Indenture.
EVENT OF DEFAULT:
The term "Event of Default" shall mean any event specified in Section
8.01, continued for the period of time, if any, and after the giving of the
notice, if any, therein designated.
EXTENSION NOTICE:
The term "Extension Notice" shall mean a notice sent by the Trustee by
telegram, telex, facsimile transmission, hand delivery or letter (first class,
postage prepaid) to the Holder of a Note with respect to which the Company has
exercised its option to extend the Stated Maturity, indicating (i) that the
Company has elected to extend the Stated Maturity of such Note, (ii) the new
Stated Maturity, (iii) in the case of a Fixed Rate Note, the interest rate
applicable to the Extension Period or, in the case of a Floating Rate Note, the
Spread and/or Spread Multiplier applicable to the Extension Period, and (iv) any
provisions for redemption of such Note during the Extension Period, including
the date or dates on which or the period or periods during which and the price
or prices at which such redemption may occur during the Extension Period.
EXTENSION PERIOD:
The term "Extension Period" shall mean a period of from one to five
whole years for which the Company may, at its option, extend the Stated Maturity
of a particular Note.
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FINAL MATURITY DATE:
The term "Final Maturity Date" shall mean the date beyond which the
Stated Maturity of a particular Note may not be extended at the option of the
Company.
FIRST MORTGAGE BONDS:
The term "First Mortgage Bonds" shall mean the first mortgage bonds
issued under the Bond Indenture.
FIXED RATE AMORTIZING NOTE:
The term "Fixed Rate Amortizing Note" shall mean a Fixed Rate Note
which is an Amortizing Note.
FIXED RATE NOTE:
The term "Fixed Rate Note" shall mean a Note which bears interest at a
fixed rate (which may be zero in the case of a Zero Coupon Note) specified in
the applicable Company Order.
FLOATING RATE NOTE:
The term "Floating Rate Note" shall mean a Note which bears interest
at a variable rate determined by reference to interest rate formula, and
includes a Commercial Paper Rate Note, a LIBOR Note, a Prime Rate Note or a
Treasury Rate Note.
GLOBAL NOTE:
The term "Global Note" shall mean a single Note that pursuant to
Section 2.05 is issued to evidence Notes having identical terms and provisions,
which is delivered to the Depositary or pursuant to instructions of the
Depositary and which shall be registered in the name of the Depositary or its
nominee.
H.15(519):
The term "H.15(519)" shall mean the publication "Statistical Release
H.15(519), Selected Interest Rates" or any successor publication published by
the Board of Governors of the Federal Reserve System.
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INDEBTEDNESS:
The term "Indebtedness" shall mean with respect to any Person (i) any
liability of such Person (a) for borrowed money, or (b) evidenced by a bond,
note, debenture or similar instrument (including purchase money obligations but
excluding trade payables), or (c) for the payment of money relating to a lease
that is required to be classified as a capitalized lease obligation in
accordance with generally accepted accounting principles; (ii) any liability of
others described in the preceding clause (i) that such Person has guaranteed,
that is recourse to such Person or that is otherwise its legal liability; and
(iii) any amendment, supplement, modification, deferral, renewal, extension or
refunding of any liability of the types referred to in clauses (i) and (ii)
above.
INDENTURE:
The term "Indenture" shall mean this instrument as originally executed
or, if amended or supplemented as herein provided, as so amended or
supplemented.
INDEX MATURITY:
The term "Index Maturity" of a particular Floating Rate Note shall
mean the period to Stated Maturity of the instrument or obligation from which
the Base Rate of such Floating Rate Note is calculated, as specified in the
applicable Company Order.
INITIAL INTEREST RATE:
The term "Initial Interest Rate" for a particular Floating Rate Note
shall mean the interest rate specified in the applicable Company Order as in
effect from the Original Issue Date of such Floating Rate Note to its first
Interest Reset Date.
INITIAL REDEMPTION DATE:
The term "Initial Redemption Date" shall mean the earliest date, if
any, on which a particular Note shall be redeemable at the option of the Company
prior to the Stated Maturity of such Note, as specified in the applicable
Company Order.
INTEREST ACCRUAL PERIOD:
The term "Interest Accrual Period" for a particular Floating Rate Note
shall mean the period from the date of issue of such Floating Rate Note, or from
an Interest Reset Date, if any, to its next subsequent Interest Reset Date.
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INTEREST DETERMINATION DATE:
The term "Interest Determination Date" shall mean each Commercial
Paper Rate Interest Determination Date, LIBOR Interest Determination Date, Prime
Rate Interest Determination Date and Treasury Rate Interest Determination Date.
INTEREST FACTOR:
The term "Interest Factor" for a Floating Rate Note for each day in an
Interest Accrual Period for such Floating Rate Note shall be computed by
dividing the Interest Rate applicable to such day by 360, in the case of
Commercial Paper Rate Notes, LIBOR Notes and Prime Rate Notes, or by the actual
number of days in the year, in the case of Treasury Rate Notes.
INTEREST PAYMENT DATE:
(a) The term "Interest Payment Date" shall mean with respect to a
Floating Rate Note, including a Floating Rate Amortizing Note, which has an
Interest Reset Date which is (1) daily, weekly or monthly: the third Wednesday
of each month or the third Wednesday of March, June, September and December of
each year, as specified in the applicable Company Order, (2) quarterly: the
third Wednesday of March, June, September and December of each year, as
specified in the applicable Company Order, (3) semiannually: the third Wednesday
of the two months of each year, as specified in the applicable Company Order;
(4) annually: the third Wednesday of one month of each year, as specified in the
applicable Company Order, and, in each case, the date of Maturity of such
Floating Rate Note and, with respect to defaulted interest on such Floating Rate
Note, the date established by the Company for the payment of such defaulted
interest. If any Interest Payment Date (other than at Maturity) for any
Floating Rate Note would fall on a day that is not a Business Day with respect
to such Floating Rate Note, such Interest Payment Date will be the following day
that is a Business Day with respect to such Floating Rate Note, except that, in
the case of a LIBOR Note, if such Business Day with respect to such Floating
Rate Note is in the next succeeding calendar month, such Interest Payment Date
shall be the immediately preceding London Business Day.
(b) the term "Interest Payment Date" shall mean with respect to a
Fixed Rate Note, including a Fixed Rate Amortizing Note, each January 15 and
July 15, or such other dates which are specified in the applicable Company Order
during the period such Fixed Rate Note is outstanding, the date of Maturity of
such Fixed Rate Note, and with respect to defaulted interest on such Fixed Rate
Note, the date established by the Company for the payment of such defaulted
interest.
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(C) Notwithstanding the foregoing, the first Interest Payment Date for
any Note originally issued between a Record Date and the next Interest Payment
Date shall be the Interest Payment Date following the next succeeding Record
Date.
INTEREST RATE:
(a) The term "Interest Rate" for a particular Floating Rate Note shall
mean (1) from the date of issue of such Floating Rate Note to the first Interest
Reset Date for such Floating Rate Note, the Initial Interest Rate, and (2) each
Interest Accrual Period commencing on or after such First Interest Reset Date,
the Base Rate with reference to the Index Maturity for such Floating Rate Note
as specified in the applicable Company Order plus or minus the Spread, if any,
multiplied by the Spread Multiplier, if any; PROVIDED that in the event no
Spread or Spread Multiplier is provided in such Company Order, the Spread and
Spread Multiplier shall be zero and one, respectively; PROVIDED, FURTHER, in no
event shall the Interest Rate be greater than the Maximum Interest Rate, if any,
or less than the Minimum Interest Rate, if any; PROVIDED, FURTHER, the Interest
Rate in effect for the ten days immediately prior to Maturity will be the
Interest Rate in effect on the tenth day preceding such Maturity; and PROVIDED,
FURTHER, the Interest Rate will in no event be higher than the maximum rate
permitted by New York or other applicable law, as the same may be modified by
United States federal laws of general application.
(b) The term "Interest Rate" for a particular fixed Rate Note shall
mean the interest rate specified in the applicable Company Order.
INTEREST RATE BASIS; BASE RATE:
The term "Interest Rate Basis" or "Base Rate" shall mean with respect
to (a) Commercial Paper Rate Notes, the Commercial Paper Rate, (b) LIBOR Notes,
LIBOR, (c) Prime Rate Notes, the Prime Rate, (d) Treasury Rate Notes, the
Treasury Rate, and (e) any other Floating Rate Note, the interest rate formula
which determines the variable rate at which such Note bears interest.
INTEREST RESET DATE:
The term "Interest Reset Date" shall mean, in the case of a Floating
Rate Note specified in the applicable Company Order as being reset (a) daily:
each Business Day; (b) weekly: the Wednesday of each week (with the exception
of weekly reset Treasury Rate Notes which reset the Tuesday of each week, except
as specified below); (c) monthly: the third Wednesday of each month; (d)
quarterly: the third Wednesday of March, June, September and
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December; (e) semiannually: the third Wednesday of the two months specified
in the applicable Company Order; and (f) annually: the third Wednesday of the
month specified in the applicable Company Order. If any Interest Reset Date
for a Floating Rate Note would otherwise be a day which is not a Business
Day, such Interest Reset Date shall be postponed to the next succeeding day
that is a Business Day, except that in the case of a LIBOR Note, if such
Business Day is in the next succeeding calendar month, such Interest Reset
Date shall be the immediately preceding Business Day. If, in the case of a
Treasury Rate Note, an Interest Reset Date shall fall on a day on which the
Treasury auctions Treasury Bills, then such Interest Reset Date shall instead
be the first Business Day immediately following such auction.
INTEREST RESET PERIOD:
The term "Interest Reset Period" shall mean for:
(a) each Floating Rate Note on which interest is reset monthly,
quarterly, semiannually or annually, and each Fixed Rate Note, the period:
(1) beginning on and including the Original Issue Date of such
Note or the most recent Interest Payment Date on which interest was
paid on such Note, and
(2) ending on but not including the next Interest Payment Date
or, for the last Interest Reset Period, the Maturity, of such Note;
(b) each Floating Rate Note on which interest is reset daily or
weekly, the period:
(1) beginning on and including the Original Issue Date of such
Floating Rate Note, or beginning on but excluding the most recent
Record Date through which interest was paid on such Note, and
(2) ending on and including the next Record Date or, for the
last Interest Reset Period, ending on but excluding Maturity, of such
Note;
PROVIDED, HOWEVER, that the first Interest Reset Period for any Note which has
its Original Issue date after a Record Date and prior to its next Interest
Payment Date, shall begin on and include such Original Issue Date and (i) end on
and include the next Record Date for Floating Rate Notes on which interest is
reset daily or weekly, and (ii) end on but not include the second Interest
Payment Date after the Original Issue Date for all other Notes.
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ISSUE PRICE:
The term "Issue Price" shall mean the price expressed as a percentage
of the aggregate principal amount of a Note at which such Note is issued.
LIBOR:
The term "LIBOR" for a particular Floating Rate Note, unless otherwise
indicated in the applicable Company Order, shall mean, with respect to any LIBOR
Interest Determination Date, the rate determined:
(i) with respect to any LIBOR Interest Determination Date, LIBOR shall
be either: (a) if "LIBOR Reuters" is specified in the applicable Company Order,
the arithmetic mean of the offered rates (unless the specified Designated LIBOR
Page by its terms provides only for a single rate, in which case such single
rate will be used) for deposits in United States dollars having the Index
Maturity specified in the applicable Company Order, commencing on the second
London Business Day immediately following such LIBOR Interest Determination
Date, which appear on the Designated LIBOR Page specified in the applicable
Company Order as of 11:00 A.M., London time, on that LIBOR Interest
Determination Date, if at least two such offered rates appear (unless, as
aforesaid, only a single rate is required) on such Designated LIBOR Page, or (b)
if "LIBOR Telerate" is specified in the applicable Company Order, the rate for
deposits in United States dollars having the Index Maturity specified in the
applicable Company Order, commencing on the second London Business Day
immediately following such LIBOR Interest Determination Date, which appears on
the Designated LIBOR Page specified in the applicable Company Order as of 11:00
A.M., London time, on that LIBOR Interest Determination Date. Notwithstanding
the foregoing, if fewer than two offered rates appear on the Designated LIBOR
Page with respect to LIBOR Reuters (unless the specified Designated LIBOR Page
by its terms provides only for a single rate, in which case such single rate
will be used), or if no rate appears on the Designated LIBOR Page with respect
to LIBOR Telerate, whichever may be applicable, LIBOR with respect to such LIBOR
Interest Determination Date shall be determined as provided in clause (ii)
below.
(ii) With respect to any LIBOR Interest Determination Date on which
fewer than two offered rates appear on the Designated LIBOR Page with respect to
LIBOR Reuters (unless the specified Designated LIBOR Page by its terms provides
only for a single rate, in which case such single rate will be used), or if no
rate appears on the Designated LIBOR Page with respect to LIBOR Telerate, as the
case may be, the Calculation Agent shall request the principal London office of
each of four major banks in the London interbank
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market selected by the Calculation Agent to provide the Calculation Agent
with its offered rate quotation for deposits in United States dollars for the
period of the applicable Index Maturity specified in the applicable Company
Order, commencing on the second London Business Day immediately following
such LIBOR Interest Determination Date, to prime banks in the London
interbank market as of 11:00 A.M., London time, on such LIBOR Interest
Determination Date and in a principal amount that is representative for a
single transaction in United States dollars in such market at such time. If
at least two such quotations are provided, LIBOR with respect to such LIBOR
Interest Determination Date shall be calculated by the Calculation Agent and
shall be the arithmetic mean of such quotations. If fewer than two quotations
are provided, LIBOR with respect to such LIBOR Interest Determination Date
shall be the arithmetic mean of the rates quoted as of 11:00 A.M., New York
City Time, on such LIBOR Interest Determination Date by three major banks in
The City of New York selected by the Calculation Agent for loans in United
States Dollars to leading European banks, commencing on the second London
Business Day immediately following such LIBOR Interest Determination Date
having the Index Maturity specified in the applicable Company Order in a
principal amount that is representative for a single transaction in such
United States dollars in such market at such time; PROVIDED, HOWEVER, that if
the banks so selected by the Calculation Agent are not quoting as mentioned
in this sentence, LIBOR with respect to such LIBOR Interest Determination
Date shall be LIBOR in effect immediately prior to such LIBOR Interest
Determination Date.
LIBOR INTEREST DETERMINATION DATE:
The term "LIBOR Interest Determination Date" pertaining to an Interest
Reset Date for a LIBOR Note shall mean the second London Business Day
immediately preceding such Interest Reset Date, unless otherwise specified in
the applicable Company Order.
LIBOR NOTES:
The term "LIBOR Notes" shall mean Floating Rate Notes which are
specified in the applicable Company Order as bearing interest at an interest
rate calculated with reference to LIBOR.
LONDON BUSINESS DAY:
The term "London Business Day" shall mean any day on which dealings in
deposits in United States dollars are transacted in the London interbank market.
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MATURITY:
The term "Maturity", when used with respect to any Note, shall mean
the date on which the principal of such Note or an installment of principal
becomes due and payable in accordance with its terms and the terms of this
Indenture as therein or herein provided, whether at Stated Maturity, upon
declaration of acceleration, call for redemption, repayment at the option of the
Holder or otherwise.
MAXIMUM INTEREST RATE:
The term "Maximum Interest Rate" shall mean the maximum rate of
interest, if any, which may be applicable to any Floating Rate Note during any
Interest Accrual Period as specified in the applicable Company Order.
MINIMUM INTEREST RATE:
The term "Minimum Interest Rate" shall mean the minimum rate of
interest, if any, which may be applicable to any Floating Rate Note during any
Interest Accrual Period as specified in the applicable Company Order.
MONEY MARKET YIELD:
The term "Money Market Yield" shall be the yield (expressed as a
percentage) calculated in accordance with the following formula:
D x 360
Money Market Yield = --------------- x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the Interest Accrual Period for which interest is being
calculated.
NOTE OR NOTES; OUTSTANDING:
The terms "Note or "Notes" shall mean any Fixed Rate or Floating Rate
Note or Notes, as the case may be, authenticated and delivered under this
Indenture, including any Global Note.
The term "outstanding," when used with reference to Notes, shall,
subject to Section 10.04, mean, as of any particular time, all Notes
authenticated and delivered by the Trustee under this Indenture, except
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(a) Notes theretofore cancelled by the Company or delivered to
the Company for cancellation;
(b) Notes, or portions thereof, for the payment or redemption of
which moneys in the necessary amount shall have been deposited in
trust with the Trustee or with any paying agent (other than the
Company) or shall have been set aside and segregated in trust by the
Company (if the Company shall act as its own paying agent);PROVIDED
that if such Notes are to be redeemed prior to the Maturity thereof,
notice of such redemption shall have been given as provided in Article
Three, or provisions satisfactory to the Trustee shall have been made
for giving such notice;
(c) Notes which shall have been Discharged; and
(d) Notes in lieu of or in substitution for which other Notes
shall have been authenticated and delivered, or which have been paid,
pursuant to Section 2.07;
NOTEHOLDER; HOLDER:
The terms "Noteholder" or "Holder" shall mean any Person in whose name
at the time a particular Note is registered in the register of the Company kept
for that purpose in accordance with the terms hereof.
OFFICERS' CERTIFICATE:
The term "Officers' Certificate" when used with respect to the
Company, shall mean a certificate signed by the Chairman of the Board, the
President or any Vice President and by the Secretary or an Assistant Secretary
of the Company. Each such certificate shall include the statements provided for
in Section 15.05 if and to the extent required by such Section.
OPINION OF COUNSEL:
The term "Opinion of Counsel" shall mean an opinion in writing signed
by legal counsel, who may be an employee of the Company, or such other counsel
who is satisfactory to the Trustee. Each such opinion shall include the
statements provided for in Section 15.05 if and to the extent required by such
Section. In the event that the Indenture requires the delivery of an Opinion of
Counsel to the Trustee, the text and substance of which has been previously
delivered to the Trustee, the Company may satisfy such requirement by the
delivery by the legal counsel that delivered such previous Opinion of Counsel of
a letter to the Trustee to the effect that the Trustee may rely on such previous
Opinion of
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Counsel as if such Opinion of Counsel was dated and delivered the date
delivery of such Opinion of Counsel is required.
OPTIONAL INTEREST RESET DATE:
The term "Optional Interest Reset Date" shall mean each date on which
the interest rate on a Fixed Rate Reset Note or the Spread and/or Spread
Multiplier of a Floating Rate Reset Note may be reset at the option of the
Company.
ORIGINAL ISSUE DATE:
The term "Original Issue Date" shall mean for a particular Note, or
portions thereof, the date upon which it, or such portion, was issued by the
Company pursuant to this Indenture and authenticated by the Trustee (other than
in connection with a transfer, exchange or substitution).
ORIGINAL ISSUE DISCOUNT NOTE:
The term "Original Issue Discount Note" shall mean (i) a Note that has
a "stated redemption price at maturity" that exceeds its "issue price", each as
defined for United States federal income tax purposes, by at least 0.25% of its
stated redemption price at maturity multiplied by the number of complete years
from the Original Issue Date to the Stated Maturity for such Note (or in the
case of a Note that provides for payment of any amount other than the "qualified
stated interest", as defined for United States federal income tax purposes,
prior to maturity, the weighted average maturity of the Note) and (ii) any other
Note designated by the Company in the applicable Company Order as issued with
original issue discount for United States federal income tax purposes.
Permitted Encumbrances:
The term "Permitted Encumbrances" shall mean:
(a) (i) any mortgage, pledge or other lien or encumbrance on any
property hereafter acquired or constructed by the Company or a Subsidiary,
or on which property so constructed is located, and created prior to,
contemporaneously with or within 360 days after, such acquisition or
construction or the commencement of commercial operation of such property
to secure or provide for the payment of any part of the purchase or
construction price of such property, or (ii) any mortgage, pledge, or other
lien or encumbrance upon such property existing at the time of acquisition
thereof by the Company or any Subsidiary, whether or not assumed by the
Company or such Subsidiary, or (iii) any
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mortgage, pledge, or other lien or encumbrance existing on the property,
shares of stock or indebtedness of a corporation at the time such
corporation shall become a Subsidiary or any pledge of the shares of
stock of such corporation prior to, contemporaneously with or within 360
days after such corporation shall become a Subsidiary to secure or
provide for the payment of any part of the purchase price of such stock,
or (iv) any conditional sales agreement or other title retention
agreement with respect to any property hereafter acquired or
constructed; PROVIDED that, in the case of clauses (i) through (iv), the
lien of any such mortgage, pledge or other lien does not spread to
property owned prior to such acquisition or construction or to other
property thereafter acquired or constructed other than additions to such
acquired or constructed property and other than property on which
property so constructed is located; and PROVIDED, FURTHER, that if a
firm commitment from a bank, insurance company or other lender or
investor (not including the Company, a Subsidiary or an Affiliate of the
Company) for the financing of the acquisition or construction of
property is made prior to, contemporaneously with or within the 360-day
period hereinabove referred to, the applicable mortgage, pledge, lien or
encumbrance shall be deemed to be permitted by this subsection (a)
whether or not created or assumed within such period;
(b) any mortgage, pledge or other lien or encumbrance created for the
sole purpose of extending, renewing or refunding any mortgage, pledge, lien
or encumbrance permitted by subsection (a) of this definition; PROVIDED,
HOWEVER, that the principal amount of indebtedness secured thereby shall
not exceed the principal amount of indebtedness so secured at the time of
such extension, renewal or refunding and that such extension, renewal or
refunding mortgage, pledge, lien or encumbrance shall be limited to all or
any part of the same property that secured the mortgage, pledge or other
lien or encumbrance extended, renewed or refunded;
(c) liens for taxes or assessments or governmental charges or levies
not then due and delinquent or the validity of which is being contested in
good faith, and against which an adequate reserve has been established;
liens on any property created in connection with pledges or deposits to
secure public or statutory obligations or to secure performance in
connection with bids or contracts; materialmen's, mechanics', carrier's,
workmen's, repairmen's or other like liens; or liens on any property
created in connection with deposits to obtain the release of such liens;
liens on any property created in connection with deposits to secure surety,
stay, appeal or customs bonds; liens created by
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or resulting from any litigation or legal proceeding which is currently
being contested in good faith by appropriate proceedings; leases and
liens, rights of reverter and other possessory rights of the lessor
thereunder; zoning restrictions, easements, rights-of-way or other
restrictions on the use of real property or minor irregularities in the
title thereto; and any other liens and encumbrances similar to those
described in this subsection (c), the existence of which does not, in
the opinion of the Company, materially impair the use by the Company or
a Subsidiary of the affected property in the operation of the business
of the Company or a Subsidiary, or the value of such property for the
purposes of such business;
(d) any mortgage, pledge or other lien or encumbrance created after
the date of this Indenture on any property leased to or purchased by the
Company or a Subsidiary after that date and securing, directly or
indirectly, obligations issued by a State, a territory or a possession of
the United States, or any political subdivision of any of the foregoing, or
the District of Columbia, to finance the cost of acquisition or cost of
construction of such property; PROVIDED that the interest paid on such
obligations is entitled to be excluded from gross income of the recipient
pursuant to Section 103(a)(1) of the Internal Revenue Code of 1986, as
amended (or any successor to such provision), as in effect at the time of
the issuance of such obligations;
(e) any mortgage, pledge or other lien or encumbrance on any property
now owned or hereafter acquired or constructed by the Company or a
Subsidiary, or on which property so owned, acquired or constructed is
located, to secure or provide for the payment of any part of the
construction price or cost of improvements of such property, and created
prior to, contemporaneously with or within 360 days after, such
construction or improvement; PROVIDED that if a firm commitment from a
bank, insurance company or other lender or investor (not including the
Company, a Subsidiary or an Affiliate of the Company) for the financing of
the acquisition or construction of property is made prior to,
contemporaneously with or within the 360-day period hereinabove referred
to, the applicable mortgage, pledge, lien or encumbrance shall be deemed to
be permitted by this subsection (e) whether or not created or assumed
within such period; and
(f) any mortgage, pledge or other lien or encumbrance not otherwise
permitted under this Section; PROVIDED that the aggregate amount of
indebtedness secured by all such
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mortgages, pledges, liens or encumbrances does not exceed the greater of
$20,000,000 or 10% of Common Shareholders Equity.
PERSON:
The term "Person" shall mean any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
PRE-EXERCISE STATED MATURITY DATE:
The term "Pre-Exercise Stated Maturity Date" shall mean the Stated
Maturity of a Note (including, if such Stated Maturity has previously been
extended, the Stated Maturity as previously extended) in effect immediately
prior to the Company's exercise of an option to extend such Stated Maturity for
an Extension Period or the Holder's exercise of an option to renew such Note
pursuant to provisions included in the applicable Company Order.
PRIME RATE:
The term "Prime Rate" for a particular Floating Rate Note, unless otherwise
indicated in the applicable Company Order, shall mean, with respect to any Prime
Rate Interest Determination Date, the rate on such date as published in
H.15(519) under the heading "Bank Prime Loan." In the event that such rate is
not published prior to 9:00 A.M., New York City time, on the Calculation Date
pertaining to such Prime Rate Interest Determination Date, then the Prime Rate
with respect to such Prime Rate Interest Determination Date shall be calculated
by the Calculation Agent and shall be the arithmetic mean of the rates of
interest publicly announced by each bank that appears on the Reuters Screen
USPRIME1 as such bank's prime rate or base lending rate as in effect with
respect to such Prime Rate Interest Determination Date. If fewer than four such
rates appear on the Reuters Screen USPRIME1 with respect to such Prime Rate
Interest Determination Date, the Prime Rate with respect to such Prime Rate
Interest Determination Date shall be calculated by the Calculation Agent and
shall be the arithmetic mean of the prime rates quoted on the basis of the
actual number of days in the year divided by 360 as of the close of business on
such Prime Rate Interest Determination Date by at least two of the three major
money center banks in The City of New York selected by the Calculation Agent.
If fewer than two quotations are provided, the Prime Rate with respect to such
Prime Rate Interest Determination Date shall be determined on the basis of the
rates furnished in The City of New York by the appropriate number of substitute
banks or trust companies organized and doing business under the laws of the
United States, or any state thereof, having total equity capital of at least
$500,000,000 and being subject to supervision or
-22-
examination by federal or state authority, selected by the Calculation Agent
to provide such rate or rates; PROVIDED, HOWEVER, that if the appropriate
number of substitute banks or trust companies selected as aforesaid are not
quoting as mentioned in this sentence, the Prime Rate with respect to such
Prime Rate Interest Determination Date shall be the Prime Rate in effect
immediately prior to such Prime Rate Interest Determination Date.
PRIME RATE INTEREST DETERMINATION DATE:
The term "Prime Rate Interest Determination Date" pertaining to an Interest
Reset Date for a particular Prime Rate Note shall mean the second Business Day
immediately preceding such Interest Reset Date, unless otherwise specified in
the applicable Company Order.
PRIME RATE NOTES:
The term "Prime Rate Notes" shall mean Floating Rate Notes which are
specified in the applicable Company Order as bearing interest at an interest
rate calculated with reference to the Prime Rate.
PRINCIPAL AMOUNT:
The term "principal amount" with respect to any Note shall mean the
principal amount thereof set forth in the applicable Company Order; PROVIDED
that in the case of any Original Issue Discount Note, its principal amount as of
(i) any date that the principal amount of such Note is to be repaid prior to its
Stated Maturity, whether upon declaration of acceleration, call for redemption,
repayment at the option of the Holder or otherwise, or (ii) any date that any
consent, notice, request, direction, waiver or suit by the Noteholders shall be
deemed to be given, made or commenced under this Indenture, such term shall mean
the Amortized Face Amount of such Note as of such date.
PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY:
The term "principal executive offices of the Company" shall mean the
place where the main corporate offices of the Company are located, currently ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other place where the
main corporate offices of the Company are located as designated in an Officers'
Certificate delivered to the Trustee.
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PRINCIPAL FACILITY:
The term "Principal Facility" shall mean the real property, fixtures,
machinery and equipment relating to any facility owned by the Company or any
Subsidiary (which may include a network of electric or gas distribution
facilities or a network of electric or gas transmission facilities), except
any facility that, in the opinion of the Board of Directors, is not of
material importance to the business conducted by the Company and its
Subsidiaries, taken as a whole.
RECORD DATE:
The term "Record Date" shall mean for the Interest Payment Date for the
payment of interest for an Interest Reset Period for a particular Note,
unless otherwise specified in the applicable Company Order, (a) the day which
is fifteen calendar days prior to such Interest Payment Date, whether or not
such day is a Business Day, (b) the date of Maturity of such Note, unless
such date of Maturity for a Fixed Rate Note is a January 1 or a July 1, in
which event the Record Date will be as provided in clause (a), and (c) a date
which is not less than five Business Days preceding the Interest Payment Date
of defaulted interest on such Note established by notice given by first-class
mail by or on behalf of the Company to the Holder of such Note not less than
fifteen days prior to such Interest Payment Date.
REDEMPTION DATE:
The term "Redemption Date" for a Note shall mean the date fixed for the
redemption of such Note in accordance with the provisions of this Indenture.
REGULATED SUBSIDIARY:
The term "Regulated Subsidiary" shall mean any Subsidiary which owns or
operates facilities used for the generation, transmission or distribution of
electric energy and is subject to the jurisdiction of any governmental
authority of the United States or any state or political subdivision thereof,
as to any of its: rates; services; accounts; issuances of securities;
affiliate transactions; or construction, acquisition or sale of any such
facilities, except that any "exempt wholesale generator", as defined in 15
USC 79z-5a(a)(1), "qualifying facility", as defined in 18 CFR 29z,101(b)(1),
"foreign utility company", as defined in 15 USC 79z-5b(a)(3) and "power
marketer", as defined in NORTHWEST POWER MARKETING COMPANY, L.L.C., 75 FERC
PARA61,281, shall not be a Regulated Subsidiary.
24
RESET NOTE:
The term "Reset Note" shall mean a Fixed Rate Note, with respect to which
the Company has the option to reset the interest rate, and a Floating Rate
Note, with respect to which the Company has the option to reset the Spread
and/or Spread Multiplier.
RESET NOTICE:
The term "Reset Notice" shall mean a notice sent by the Trustee by
telegram, telex, facsimile transmission, hand delivery or letter (first
class, postage prepaid) to the Holder of a Reset Note with respect to which
the Company has exercised its option to reset the interest rate or the Spread
and/or the Spread Multiplier, indicating (i) that the Company has elected to
exercise such option, (ii) such new interest rate or Spread and/or Spread
Multiplier and (iii) any provisions for redemption of such Note during the
Subsequent Interest Period commencing on the applicable Optional Interest
Reset Date.
RESPONSIBLE OFFICER:
The term "responsible officer" or "responsible officers" when used with
respect to the Trustee shall mean one or more of the following: the chairman
of the board of directors, the vice chairman of the board of directors, the
chairman of the executive committee, the vice chairman of the executive
committee, the chairman of the trust committee, the president, any vice
president, the cashier, the secretary, the treasurer, any trust officer, any
second or assistant vice president, any assistant cashier, any assistant
secretary, any assistant treasurer, any assistant trust officer or any other
officer or assistant officer of the Trustee customarily performing functions
similar to those performed by the persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with the particular
subject.
REUTERS SCREEN USPRIME1:
The term "Reuters Screen USPRIME1" shall mean the display designated as
page "USPRIME1" on the Reuters Monitor Money Rate Service (or such other page
which may replace the USPRIME1 page on such service for the purpose of
displaying the prime rate or base lending rate of major banks).
SPREAD:
The term "Spread" applicable to a particular Floating Rate Note shall
mean the number of Basis Points above or below the Base Rate for such
Floating Rate Note as specified in the
25
applicable Company Order, used in the calculation of the Interest Rate for
such Floating Rate Note.
SPREAD MULTIPLIER:
The term "Spread Multiplier" applicable to a particular Floating Rate
Note shall mean the percentage of the Base Rate (plus or minus any applicable
Spread) for such Floating Rate Note as specified in the applicable Company
Order, used in the calculation of the Interest Rate for such Floating Rate
Note.
STATED MATURITY:
The term "Stated Maturity", when used with respect to any Note shall mean
the date specified in such Note as the date on which the principal of such
Note is due and payable, or the date specified as the Stated Maturity (i) in
an Extension Notice or (ii) in accordance with procedures included in the
applicable Company Order pursuant to which the Holder may renew such Note.
SUBSEQUENT INTEREST PERIOD:
The term "Subsequent Interest Period" shall mean a period from an
Optional Interest Reset Date of a Note to the next Optional Interest Reset
Date of such Note or, if there is no such next Optional Interest Reset Date,
to the Stated Maturity of such Note.
SUBSIDIARY:
The term "Subsidiary" shall mean any corporation of which at least a
majority of the outstanding stock having by the terms thereof ordinary voting
power to elect a majority of the directors of such corporation, irrespective
of whether or not at the time stock of any class or classes of such
corporation shall have or might have voting power by reason of the happening
of any contingency, is at the time, directly or indirectly, owned or
controlled by the Company or by one or more Subsidiaries thereof, or by the
Company and one or more Subsidiaries.
TREASURY:
The term "Treasury" shall mean the United States Department of Treasury.
TREASURY BILLS:
The term "Treasury Bills" shall mean direct obligations of the United
States.
26
TREASURY RATE:
The term "Treasury Rate" for a particular Floating Rate Note, unless
otherwise indicated in the applicable Company Order, shall mean, with respect
to any Treasury Rate Interest Determination Date, the rate resulting from the
most recent auction of Treasury Bills having the Index Maturity specified in
the applicable Company Order, as such rate is published in H.15(519) under
the heading "Treasury bills-auction average (investment)" or, if not so
published by 3:00 P.M., New York City time, on the Calculation Date
pertaining to such Treasury Rate Interest Determination Date, the average
auction rate on such Treasury Rate Determination Date (expressed as a bond
equivalent, on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) as otherwise announced by the Treasury. In the
event that the results of the auction of Treasury Bills having the specified
Index Maturity are not reported as provided above by 3:00 P.M., New York City
time, on such Calculation Date pertaining to such Treasury Rate Determination
Date, or if no such auction is held in a particular week, then the Treasury
Rate with respect to such Treasury Rate Interest Determination Date shall be
calculated by the Calculation Agent and shall be a yield to maturity
(expressed as a bond equivalent, on the basis of a year of 365 or 366 days,
as applicable, and applied on a daily basis) of the arithmetic mean of the
secondary market bid rates, as of approximately 3:30 P.M., New York City
time, on such Treasury Rate Interest Determination Date, of three leading
primary United States government securities dealers selected by the
Calculation Agent, for the issue of Treasury Bills with a remaining maturity
closest to the Index Maturity specified in the applicable Company Order;
PROVIDED, HOWEVER, that if the dealers selected as aforesaid by the
Calculation Agent are not quoting as set forth above, the Treasury Rate with
respect to such Treasury Rate Interest Determination Date shall be the
Treasury Rate in effect immediately prior to such Treasury Rate Interest
Determination Date.
TREASURY RATE INTEREST DETERMINATION DATE:
The term "Treasury Rate Interest Determination Date" pertaining to an
Interest Reset Date for a Treasury Rate Note shall mean the day of the week
in which its Interest Reset Date falls on which Treasury Bills normally would
be auctioned; PROVIDED, HOWEVER, that if as a result of a legal holiday an
auction is held on the Friday of the week preceding such Interest Reset Date,
the related Treasury Rate Interest Determination Date shall be such Friday,
unless otherwise specified in the applicable Company Order.
27
TREASURY RATE NOTES:
The term "Treasury Rate Notes" shall mean Floating Rate Notes which
are specified in the applicable Company Order as bearing interest at an interest
rate calculated with reference to the Treasury Rate.
TRUSTEE:
The term "Trustee" shall mean Bank One, N.A. and, subject to Article
Nine, shall also include any successor Trustee.
U.S. GOVERNMENT OBLIGATIONS:
The term "U.S. Government Obligations" shall mean securities that are (i)
direct obligations of the United States for the payment of which its full
faith and credit is pledged, or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States, which, in either case under clauses (i) or
(ii), are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank or trust company as
custodian with respect to any such U.S. Government Obligation or a specific
payment of interest on or principal of any such U.S. Government Obligation
held by such custodian for the account of the holder of a depository receipt;
PROVIDED that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of interest on or principal of
the U.S. Government Obligation evidenced by such depository receipt.
WHOLLY-OWNED SUBSIDIARY:
The term "Wholly-Owned Subsidiary" shall mean a Subsidiary of which all
of the outstanding voting stock (other than directors' qualifying shares) is
at the time, directly or indirectly, owned by the Company, or by one or more
Wholly-Owned Subsidiaries of the Company or by the Company and one or more
Wholly-Owned Subsidiaries.
YIELD TO MATURITY:
The term "Yield to Maturity" shall mean for a particular Note the yield
to maturity of such Note, computed in accordance with generally accepted
United States bond yield computation principles and expressed as a
percentage, specified in the applicable Company Order.
28
ZERO COUPON NOTE:
The term "Zero Coupon Note" means a Note issued at a price representing a
discount from the principal amount payable at Maturity and bearing a zero
fixed rate of interest.
ARTICLE TWO
FORM, ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES
SECTION 2.01. FORM GENERALLY.
(a) The Notes shall be titled "Medium-Term Notes", and, if such Notes
shall be in the form of (a) a Fixed Rate Note which is a Global Note, shall
be in substantially the form set forth in EXHIBIT A, (b) a Fixed Rate Note
which is not a Global Note, shall be in substantially the form set forth in
EXHIBIT B, (c) a Floating Rate Note which is a Global Note, shall be in
substantially the form set forth in EXHIBIT C, and (d) a Floating Rate Note
which is not a Global Note, shall be in substantially the form set forth in
EXHIBIT D, to this Indenture, or in any such case such other form as shall be
established by a Board Resolution, or an Officers' Certificate pursuant to a
Board Resolution, or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of
any securities exchange or with applicable law or as may, consistently
herewith, be determined by the officers executing such Notes, as evidenced by
their execution of such Notes. If the form of Notes is established by a
Board Resolution, or an Officers' Certificate pursuant to a Board Resolution,
a copy of such Board Resolution or Officers' Certificate shall be delivered
to the Trustee at or prior to the delivery to the Trustee of the Company
Order contemplated by Section 2.05 for the authentication and delivery of
such Notes.
(b) The definitive Notes shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Notes, as evidenced by their
execution of such Notes.
SECTION 2.02. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. The
Trustee's certificate of authentication on all Notes shall be in
substantially the following form:
29
Trustee's Certificate of Authentication
This is one of the Notes referred to in the within-mentioned
Indenture.
BANK ONE, N.A., as Trustee
By ________________________
Authorized Signatory
SECTION 2.03. AMOUNT UNLIMITED. The aggregate principal amount of Notes
which may be authenticated and delivered under this Indenture is unlimited.
SECTION 2.04. DENOMINATIONS, DATES, INTEREST PAYMENT AND RECORD DATES.
(a) The Notes shall be issuable in registered form without coupons in
denominations of $1,000 and integral multiples thereof, unless otherwise
specified in the applicable Company Order.
(b) Each Note shall be dated and issued as of the date of its
authentication by the Trustee, and shall bear an Original Issue Date or, as
provided in Section 2.12(e), two or more Original Issue Dates; each Note
issued upon transfer, exchange or substitution of a Note shall bear the
Original Issue Date or Dates of such transferred, exchanged or substituted
Note, subject to Section 2.12(e).
(c) Each Note shall bear interest, if any, at its Interest Rate during
each Interest Reset Period for such Note, from the later of (1) its Original
Issue Date (or, if pursuant to Section 2.12, a Global Note has two or more
Original Issue Dates, interest shall, beginning on each such Original Issue
Date, begin to accrue for that part of the principal amount of such Global
Note to which that Original Issue Date is applicable), or (2) the most recent
date to which any interest has been paid or duly provided for until the
principal of such Note is paid or funds are made available for such payment,
and Accrued Interest on each Note shall be payable for each Interest Reset
Period on the Interest Payment Date immediately subsequent to the Record Date
for the payment of interest for such Interest Reset Period.
(d) All percentages resulting from any calculation of the Interest Rate
for a Floating Rate Note shall be rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point, with five one-millionths of a
percentage point rounded
30
upward (e.g., 9.876545% (or .09876545) being rounded to 9.87655% (or
.0987655)), and all dollar amounts used in or resulting from such calculation
shall be rounded to the nearest cent (with one-half cent being rounded
upward).
(e) Each Note shall mature on a date specified in such Note not less
than nine months nor more than 30 years after its Original Issue Date, and
the principal amount of each outstanding Note shall be payable on the
Maturity date specified therein.
(f) The Person in whose name any Note is registered at the close of
business on any Record Date with respect to an Interest Payment Date for such
Note shall be entitled to receive the Accrued Interest payable on such Note
on such Interest Payment Date notwithstanding the cancellation of such Note
upon any registration of transfer, exchange or substitution of such Note
subsequent to such Record Date and prior to such Interest Payment Date.
(g) The Company shall cause the Calculation Agent to calculate each
Interest Rate applicable to each Floating Rate Note in accordance with this
Indenture, and the Company shall, or shall cause the Calculation Agent to,
notify the Trustee of each determination of such Interest Rate promptly after
such determination. The Calculation Agent's determination of any Interest
Rate shall be final and binding in the absence of manifest error.
(h) On the fifth Business Day immediately preceding each Interest
Payment Date, the Trustee shall furnish to the Company a notice setting forth
the total amount of the Accrued Interest payments to be made on such Interest
Payment Date, and to the Depositary a notice setting forth the total amount
of Accrued Interest payments to be made on Global Notes on such Interest
Payment Date. The Trustee will provide monthly to the Company a list of the
principal of and any premium and Accrued Interest to be paid on Notes in the
next succeeding month and to the Depositary a list of the principal of and
any premium and Accrued Interest to be paid on Global Notes in the such
succeeding month. Promptly after the first Business Day of each month, the
Trustee shall furnish to the Company a written notice setting forth the
aggregate principal amount of the Global Notes. The Company will provide to
the Trustee not later than the payment date sufficient moneys to pay in full
all principal of and any premium and Accrued Interest payments due on such
payment date. The Trustee shall be responsible for withholding taxes on
interest paid as required by law.
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(i) Upon the request of any Noteholder of a Floating Rate Note, the
Trustee shall provide to such Noteholder the Interest Rate then in effect
and, if then determined, the Interest Rate that will become effective on the
next Interest Reset Date, with respect to such Floating Rate Note.
SECTION 2.05. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
(a) The Notes shall be executed on behalf of the Company by the Chairman
of the Board, the President or any Vice President and by the Secretary or an
Assistant Secretary. The signature of any of such officers on any Notes may
be manual or facsimile.
(b) Notes 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 individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not
hold such offices at the date of such Notes.
(c) At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Notes executed by the Company to
the Trustee for authentication, together with one or more Company Orders for
the authentication and delivery of such Notes, and the Trustee in accordance
with any such Company Order shall authenticate such Notes and make them
available for delivery. Prior to authenticating such Notes, and in accepting
the additional responsibilities under this Indenture in relation to such
Notes, the Trustee shall be entitled to receive the following only at or
before the first issuance of Notes, and (subject to Section 9.01) shall be
fully protected in relying upon:
(1) a Board Resolution authorizing this Indenture and the Notes,
and if applicable, an appropriate record of any action taken pursuant
to such Board Resolution, certified by the Secretary or an Assistant
Secretary of the Company;
(2) an Officers' Certificate designating one or more officers of
the Company who are authorized to give Company Orders for the issuance
of, and specifying terms of, Notes and, if appropriate, setting forth
the form of Notes in accordance with Section 2.01;
(3) an Opinion of Counsel stating,
(A) if the form of Notes has been established by or
pursuant to a Board Resolution, an Officers' Certificate
pursuant to a Board
32
Resolution, or a supplemental indenture as permitted by Section
2.01, that such form has been established in conformity with this
Indenture;
(B) that the Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally
binding agreement of the Company, enforceable in accordance with
its terms, subject to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting the
enforcement of creditors' rights and to general equity principles;
(C) that the Indenture and the Bond Indenture are qualified
under the TIA;
(D) that any supplemental indenture referred to in (A) above
has been duly authorized, executed and delivered by the Company and
constitutes a legal, valid and binding agreement of the Company,
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting the enforcement of creditors' rights and
to general equity principles;
(E) that the Notes, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel consistent with the
terms of this Indenture, will constitute legal, valid and legally
binding obligations of the Company, enforceable in accordance with
their respective terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to
or affecting the enforcement of creditors' rights and to general
equity principles;
(F) that all laws and requirements in respect of the
execution, delivery and sale by the Company of the Notes have been
complied with;
(G) that the Company is not in default in any of its
obligations under this Indenture
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or the Bond Indenture, and that the issuance of the Notes
will not result in any such default; and
(H) such other matters as the Trustee may reasonably request.
(d) The Trustee shall have the right to decline to authenticate and
deliver any Note:
(1) if the issuance of such Note pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the Notes
and this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee;
(2) if the Trustee, being advised by counsel, determines that
such action may not lawfully be taken; or
(3) if the Trustee in good faith by its Board of Directors,
executive committee or a trust committee of directors and/or
responsible officers in good faith determines that such action would
expose the Trustee to personal liability to Holders of any outstanding
Notes.
(e) No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Note shall be conclusive evidence, and the only evidence, that such Note has
been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture; PROVIDED, HOWEVER, that if any Note shall have
been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Note to the Trustee for
cancellation as provided in Section 2.09, for all purposes of this Indenture
such Note shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
SECTION 2.06. EXCHANGE AND REGISTRATION OF TRANSFER OF NOTES.
(a) Subject to Section 2.12, Notes may be exchanged for one or more new
Notes of any authorized denominations and of a like aggregate principal
amount and Stated Maturity and having the same terms and Original Issue Date
or Dates. Notes to be exchanged shall be surrendered at any of the offices
or agencies to be maintained by the Company for such purpose as provided in
Section 6.02, and the Company shall execute and register and the Trustee
34
shall authenticate and deliver in exchange therefor the Note or Notes which
the Noteholder making the exchange shall be entitled to receive.
(b) The Trustee on behalf of the Company shall keep, at one of said
offices or agencies, a register in which, subject to such reasonable
regulations as it or the Company may prescribe, the Trustee shall register or
cause to be registered Notes and shall register or cause to be registered the
transfer of Notes as in this Article Two provided. Such register shall be in
written form or in any other form capable of being converted into written
form within a reasonable time. At all reasonable times such register shall
be open for inspection by the Trustee. Upon due presentment for registration
of transfer of any Note at any such office or agency, the Company shall
execute and register or cause to be registered and the Trustee shall
authenticate and make available for delivery, in the name of the transferee
or transferees, one or more new Notes of any authorized denominations and of
a like aggregate principal amount and Stated Maturity and having the same
terms and Original Issue Date or Dates.
(c) All Notes presented for registration of transfer or for exchange,
redemption or payment shall (if so required by the Company) be duly endorsed
by, or be accompanied by a written instrument or instruments of transfer in
form satisfactory to the Company and the Trustee duly executed by, the Holder
or the attorney of such Holder duly authorized in writing.
(d) No service charge shall be made for any exchange or registration of
transfer of Notes, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
therewith.
(e) The Company shall not be required to exchange or register a transfer
of any Notes selected, called or being called for redemption except, in the
case of any Note to be redeemed in part, the portion thereof not to be so
redeemed.
(f) If the principal amount and any applicable premium of part but not
all of a Global Note is paid, then upon surrender to the Trustee of such
Global Note, the Company shall execute, and the Trustee shall authenticate,
and make available for delivery, a Global Note in an authorized denomination
in aggregate principal amount equal to, and having the same terms and
Original Issue Date or Dates as, the unpaid portion of such Global Note.
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SECTION 2.07. MUTILATED, DESTROYED, LOST OR STOLEN NOTES.
(a) In case any temporary or definitive Note shall become mutilated or
be destroyed, lost or stolen, the Company in its discretion may execute, and
upon its request the Trustee shall authenticate and deliver, a new Note of
like form and principal amount and having the same terms and Original Issue
Date or Dates and bearing a number not contemporaneously outstanding, in
exchange and substitution for the mutilated Note, or in lieu of and in
substitution for the Note so destroyed, lost or stolen. In every case the
applicant for a substituted Note shall furnish to the Company, the Trustee,
any Authenticating Agent or Note registrar such security or indemnity as may
be required by them to save each of them harmless, and, in every case of
destruction, loss or theft of a Note, the applicant shall also furnish to the
Company and to the Trustee evidence to their satisfaction of the destruction,
loss or theft of such Note and of the ownership thereof.
(b) The Trustee may authenticate any such substituted Note and deliver
the same upon the written request or authorization of any officer of the
Company. Upon the issuance of any substituted Note, 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 connected
therewith. In case any Note which has matured or is about to mature shall
become mutilated or be destroyed, lost or stolen, the Company may, instead of
issuing a substituted Note, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated Note) if the applicant
for such payment shall furnish to the Company, the Trustee, any
Authenticating Agent or Note registrar such security or indemnity as may be
required by them to save each of them harmless and, in case of destruction,
loss or theft, evidence satisfactory to the Company and the Trustee of the
destruction, loss or theft of such Note and of the ownership thereof.
(c) Every substituted Note issued pursuant to this Section 2.07 by
virtue of the fact that any Note is destroyed, lost or stolen shall
constitute an additional contractual obligation of the Company, whether or
not such destroyed, lost or stolen Note shall be found at any time, and shall
be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Notes duly issued hereunder. All Notes shall be held
and owned upon the express condition that, to the extent permitted by law,
the foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes and shall preclude any
and all other rights or remedies notwithstanding any law or statute existing
or hereafter enacted to
36
the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
SECTION 2.08. TEMPORARY NOTES. Pending the preparation of definitive
Notes, the Company may execute and the Trustee shall authenticate and make
available for delivery, temporary Notes (printed, lithographed or otherwise
reproduced). Temporary Notes shall be issuable in any authorized
denomination and substantially in the form of the definitive Notes but with
such omissions, insertions and variations as may be appropriate for temporary
Notes, all as may be determined by the Company. Every such temporary Note
shall be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with the same effect, as the definitive
Notes. Without unreasonable delay the Company will execute and register and
will deliver to the Trustee definitive Notes and thereupon any or all
temporary Notes may be surrendered in exchange therefor, at the Corporate
Trust Office of the Trustee, and the Trustee shall authenticate and deliver
in exchange for such temporary Notes an equal aggregate principal amount of
definitive Notes. Such exchange shall be made by the Company at its own
expense and without any charge therefor to the Noteholders. Until so
exchanged, the temporary Notes shall in all respects be entitled to the same
benefits under this Indenture as definitive Notes authenticated and made
available for delivery hereunder.
SECTION 2.09. CANCELLATION OF NOTES PAID, ETC. All Notes surrendered
for the purpose of payment, redemption, exchange or registration of transfer
shall be surrendered to the Trustee for cancellation and promptly cancelled
by it and no Notes shall be issued in lieu thereof except as expressly
permitted by this Indenture. All Notes so cancelled shall be retained by the
Trustee. If the Company shall acquire any of the Notes, however, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Notes unless and until the same are
cancelled by the Trustee.
SECTION 2.10. INTEREST RIGHTS PRESERVED. Each Note delivered under
this Indenture upon transfer of or in exchange for or in lieu of any other
Note shall carry all the rights to unpaid Accrued Interest, and interest to
accrue, which were carried by such other Note, and each such Note shall be so
dated that neither gain nor loss of interest shall result from such transfer,
exchange or substitution.
SECTION 2.11. PAYMENT OF NOTES. Unless otherwise specified in the
applicable Company Order, the principal of and any premium and Accrued
Interest on all Notes shall be payable in such coin or currency of the United
States of America as at the time of
37
payment is legal tender for payment of public and private debts as follows:
(a) On or before 10:00 a.m., New York City time, of the day on which any
payment of principal, Accrued Interest or premium is due on any Global Note
pursuant to the terms thereof, the Company shall deliver to the Trustee
immediately available funds sufficient to make such payment. On or before
10:30 a.m., New York City time or such other time as shall be agreed upon
between the Trustee and the Depositary, of the day on which such payment is
due, the Trustee shall deposit with the Depositary such funds by wire
transfer into the account specified by the Depositary. As a condition to the
payment at the Maturity of any part of the principal and any applicable
premium of any Global Note, the Depositary shall surrender, or cause to be
surrendered, such Global Note to the Trustee, whereupon a new Global Note
shall be issued to the Depositary pursuant to Section 3.03(d).
(b) With respect to any Note that is not a Global Note, principal, any
premium and Accrued Interest due at the Maturity of such Note shall be
payable in immediately available funds when due upon presentation and
surrender of such Note at the Corporate Trust Office of the Trustee; PROVIDED
that this Note is presented to the Trustee in time for the Trustee to make
such payment in such funds in accordance with its normal procedures. Accrued
Interest on (and, in the case of Amortizing Notes, installments of principal
of) any Note that is not a Global Note (other than Accrued Interest or such
installments payable at Maturity) shall be paid by a clearinghouse funds
check mailed on the Interest Payment Date; PROVIDED, HOWEVER, that if any
Holder of Notes, the aggregate principal amount of which equals or exceeds
$10,000,000, provides a written request to the Trustee on or before the
applicable Record Date for such Interest Payment Date, Accrued Interest (and
such installments of principal) shall be paid by wire transfer of immediately
available funds to a bank within the continental United States or by direct
deposit into the account of such Holder if such account is maintained with
the Trustee.
SECTION 2.12. NOTES ISSUABLE IN THE FORM OF A GLOBAL NOTE.
(a) If the Company shall establish pursuant to Section 2.05 that
particular Notes are to be issued in whole or in part in the form of one or
more Global Notes, then the Company shall execute and the Trustee shall, in
accordance with Section 2.05 and the Company Order delivered to the Trustee
thereunder, authenticate and make available for delivery, such Global Note or
Notes, which (1) shall represent, shall be denominated in an amount equal to
the aggregate principal amount of, and shall have the same terms as, the
outstanding Notes to be represented by such Global Note or
38
Notes, (2) shall be registered in the name of the Depositary or its nominee,
(3) shall be delivered by the Trustee to the Depositary or pursuant to the
Depositary's instruction and (4) shall bear a legend substantially to the
following effect: "This Note is a Global Note registered in the name of the
Depositary or a nominee thereof and, unless and until it is exchanged in
whole or in part for the individual Notes represented hereby, this Global
Note may not be transferred except as a whole by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such nominee to
a successor Depositary or a nominee of such successor Depositary."
(b) Notwithstanding any other provision of Section 2.06 or of this
Section 2.12, unless the terms of a Global Note expressly permit such Global
Note to be exchanged in whole or in part for individual Notes, a Global Note
may be transferred, in whole but not in part, only to a nominee of the
Depositary, or by a nominee of the Depositary to the Depositary, or to a
successor Depositary for such Global Note selected or approved by the Company
or to a nominee of such successor Depositary.
(c) (1) If at any time the Depositary for a Global Note notifies the
Company that such Depositary is unwilling or unable to continue as Depositary
for such Global Note or if at any time the Depositary for a Global Note shall
no longer be registered as a clearing agency under the Securities Exchange
Act of 1934, as amended, or any successor statute or regulation, the Company
may appoint a successor Depositary with respect to such Global Note. If (A)
a successor Depositary for such Global Note is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of
such ineligibility, or (B) any Notes are represented by a Global Note at a
time when an Event of Default with respect to the Notes shall have occurred
and be continuing, then in each case the Company's election pursuant to the
applicable Company Order shall no longer be effective with respect to such
Global Note and the Company shall execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of individual Notes of like
tenor and terms in exchange for such Global Note, shall authenticate and make
available for delivery, individual Notes of like tenor and terms in
definitive form in an aggregate principal amount equal to the principal
amount of such Global Note in exchange for such Global Note. The Trustee
shall not be charged with knowledge of notice of the ineligibility of a
Depositary unless a responsible officer assigned to and working in its
corporate trust administration department shall have actual knowledge thereof.
(2) The Company may at any time and in its sole discretion determine
that one or more Notes issued or issuable in
39
the form of one or more Global Notes shall no longer be represented by such
Global Note or Notes. In such event the Company shall execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery
of individual Notes of like tenor and terms in exchange for such Global Note
or Notes, shall authenticate and make available for delivery, individual
Notes of like tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of such Global Note or Notes in exchange
for such Global Note or Notes.
(3) If agreed upon by the Company and the Depositary with respect to
Notes issued in the form of a Global Note, the Depositary for such Global
Note shall surrender such Global Note in exchange in whole or in part for
individual Notes of like tenor and terms in definitive form on such terms as
are acceptable to the Company and such Depositary. Thereupon the Company
shall execute, and the Trustee shall authenticate and make available for
delivery, without a service charge, (A) to each Person specified by the
Depositary, a new Note or Notes of like tenor and terms, and of any
authorized denominations as requested by such Person in aggregate principal
amount equal to and in exchange for the beneficial interest of such Person in
such Global Note; and (B) to such Depositary a new Global Note of like tenor
and terms and in a denomination equal to the difference, if any, between the
principal amount of the surrendered Global Note and the aggregate principal
amount of Notes delivered to Holders thereof.
(4) In any exchange provided for in Section 2.12(c)(1),(2) or (3), the
Company will execute and the Trustee will authenticate and make available for
delivery, individual Notes in definitive registered form in authorized
denominations. Upon the exchange of a Global Note for individual Notes, such
Global Note shall be cancelled by the Trustee. Notes issued in exchange for
a Global Note pursuant to this Section 2.12 shall be registered in such names
and in such authorized denominations as the Depositary for such Global Note,
pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee shall deliver such Notes
to the Depositary for delivery to the Persons in whose names such Notes are
so registered, or if the Depositary shall refuse or be unable to deliver such
Notes, the Trustee shall deliver such Notes to the Persons in whose names
such Notes are registered, unless otherwise agreed upon by the Trustee and
the Company.
(d) Neither the Company, the Trustee or any Authenticating Agent will
have any responsibility or liability for any aspect of the records relating
to, or payments made on account of, beneficial ownership interests in a
Global Note or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.
40
(e) Pursuant to the provisions of this subsection, at the option of the
Trustee and upon thirty days' written notice to the Depositary, the
Depositary shall be required to surrender any two or more Global Notes which
have identical terms, including, without limitation, identical maturities,
interest rates and redemption provisions (but which may have differing
Original Issue Dates) to the Trustee, and the Company shall execute and the
Trustee shall authenticate and deliver to, or at the direction of, the
Depositary a Global Note in principal amount equal to the aggregate principal
amount of, and with all terms identical to, the Global Notes so surrendered
to the Trustee, and such new Global Note shall indicate each applicable
Original Issue Date and the principal amount applicable to each such Original
Issue Date. The exchange contemplated in this subsection shall be
consummated at least 30 days prior to any Interest Payment Date applicable to
any of the Global Notes so surrendered to the Trustee. Upon any exchange of
any Global Note with two or more Original Issue Dates, whether pursuant to
this Section or pursuant to Section 2.06 or Section 3.03, the aggregate
principal amount of the Notes with a particular Original Issue Date shall be
the same before and after such exchange, giving effect to any retirement of
Notes and the Original Issue Dates applicable to such Notes occurring in
connection with such exchange.
SECTION 2.13. CUSIP NUMBERS. The Company in issuing Notes 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 Noteholders; PROVIDED
that any such notice may state that no representation is made as to the
correctness of such CUSIP numbers either as printed on the Notes or as
contained in any notice of redemption and that reliance may be placed only on
the other identification numbers printed on the Notes, and any such
redemption shall not be affected by any defect in or omission of such numbers.
ARTICLE THREE
REDEMPTION OF NOTES; REPAYMENT PRIOR TO STATED MATURITY
SECTION 3.01. APPLICABILITY OF REDEMPTION PROVISIONS. Unless otherwise
specified in the applicable Company Order, the Notes will not be subject to
any sinking fund. If a Company Order specifies an Initial Redemption Date
for a Note, the Company shall have an option to redeem such Note prior to its
Stated Maturity on the date or dates and at the prices specified in such
Company Order, all as provided for in Sections 3.02 and 3.03.
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SECTION 3.02. NOTICE OF REDEMPTION; SELECTION OF NOTES.
(a) The election of the Company to redeem any Notes shall be evidenced
by a Board Resolution which shall be given with notice of such redemption to
the Trustee at least ten Business Days prior to the giving of the notice of
redemption to Holders of such Notes. The selection of Notes or portions
thereof to be redeemed prior to their Stated Maturity shall be in the sole
discretion of the Company; PROVIDED that the Company shall give notice
thereof to the Trustee in accordance with Section 3.02(b). Each Note which
by its terms is redeemable prior to its Stated Maturity may be redeemed by
the Company in whole or in part without also redeeming any other Note which
is redeemable prior to its Stated Maturity.
(b) Notice of redemption to each Holder of Notes to be redeemed as a
whole or in part 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) in the manner
provided in Section 15.10 at least 30 but not more than 60 calendar days
prior to the Redemption Date. Any notice which is given in the manner herein
provided shall be conclusively presumed to have been duly given, whether or
not the Noteholder receives the notice. In any case, failure duly to give
such notice, or any defect in such notice, to the Holder of any Note
designated for redemption as a whole or in part shall not affect the validity
of the proceedings for the redemption of any other Note.
(c) Each such notice shall specify the Redemption Date, the places of
redemption and the redemption price at which such Notes are to be redeemed,
and shall state that payment of the redemption price of such Notes or portion
thereof to be redeemed will be made on surrender of such Notes at such places
of redemption, that Accrued Interest to the Redemption Date will be paid as
specified in such notice and that from and after such date interest thereon
will cease to accrue. If less than all the Notes having the same terms are
to be redeemed, the notice shall specify the particular Notes or portions
thereof to be redeemed. In case any Note is to be redeemed in part only, the
notice which relates to such Note shall state the portion of the principal
amount thereof to be redeemed, and shall state that, upon surrender of such
Note, a new Note or Notes having the same terms in aggregate principal amount
equal to the unredeemed portion thereof will be issued.
(d) If at the time of the mailing of any notice of redemption the
Company shall not have irrevocably directed the Trustee to apply funds
deposited with the Trustee or held by it and available to be used for the
redemption of Notes to redeem all the Notes called for redemption, such
notice may state that it is subject to the receipt of the redemption moneys
by the Trustee
42
before the Redemption Date and that such notice shall be of no effect unless
such moneys are so received before such date.
SECTION 3.03. PAYMENT OF NOTES ON REDEMPTION; DEPOSIT OF REDEMPTION
PRICE.
(a) If notice of redemption shall have been given as provided in Section
3.02, such Notes or portions of Notes called for redemption shall become due
and payable on the date and at the places stated in such notice at the
applicable redemption price, together with Accrued Interest to the Redemption
Date of such Notes, and on and after the Redemption Date; PROVIDED that the
Company shall have deposited with the Trustee on or prior to the Redemption
Date funds in an amount sufficient to pay the redemption price together with
Accrued Interest to the Redemption Date of such Notes. Interest on the Notes
or portions thereof so called for redemption shall cease to accrue and such
Notes or portions thereof shall be deemed not to be entitled to any benefit
under this Indenture except to receive payment of the redemption price
together with Accrued Interest to the Redemption Date of such Notes;
PROVIDED, HOWEVER, that any payments due with respect to such Note prior to
the Redemption Date shall be payable to the Holders of record of such Notes
at the close of business on the relevant Record Date specified in the
applicable Company Order. On presentation and surrender of such Notes at
such a place of payment in such notice specified, such Notes or the specified
portions thereof shall be paid and redeemed at the applicable Redemption
Price.
(b) The Company shall not mail any notice of redemption of Notes during
the continuance of any Event of Default, except that (1) where notice of
redemption of any Notes has theretofore been mailed, the Company shall redeem
such Notes; PROVIDED that funds have theretofore been deposited for such
purpose, and (2) notices of redemption of all outstanding Notes may be given
during the continuance of an Event of Default.
(c) If any Note called for redemption shall not be so paid upon
surrender thereof for redemption, the principal of and any premium on such
Note, shall until paid bear interest from the date fixed for redemption at
the rate borne by such Note.
(d) Upon surrender of any Note redeemed in part only, the Company shall
execute and register, and the Trustee shall authenticate and make available
for delivery, a new Note or Notes of authorized denominations in aggregate
principal amount equal to, and having the same terms and Original Issue Date
or Dates as, the unredeemed portion of the Note so surrendered.
43
SECTION 3.04. REPAYMENT AT THE OPTION OF THE HOLDER.
(a) Unless otherwise specified in the applicable Company Order, Notes
shall not be repayable prior to Stated Maturity at the option of the Holder.
If so specified, a Note shall be repayable at the option of the Holder, in
whole or in part, on a date or dates prior to Stated Maturity and at a price
or prices specified in the applicable Company Order, plus accrued and unpaid
interest to but excluding the date of repayment.
(b) In order for a Note that is repayable at the option of the Holder to
be repaid prior to Stated Maturity, such Holder shall deliver or cause to be
delivered to the Trustee at least 30 but not more than 45 calendar days prior
to the repayment date: (i) the Note with the form entitled "Option to Elect
Repayment" on the reverse of the Note duly completed, or (ii) a telegram,
telex, facsimile transmission, hand delivery or letter (first class, postage
prepaid) from a member of a national securities exchange or the National
Association of Securities Dealers, Inc. or a commercial bank or trust company
in the United States setting forth the name of the Holder of the Note, the
principal amount of the Note, the principal amount of the Note to be repaid,
the certificate number or a description of the tenor and terms of the Note, a
statement that the option to elect repayment is being exercised thereby and a
guarantee that the Note to be repaid with the form entitled "Option to Elect
Repayment" on the reverse of the Note duly completed shall be received by the
Trustee not later than five Business Days after the date of such telegram,
telex, facsimile transmission, hand delivery or letter, if such Note and form
duly completed are received by the Trustee by such fifth Business Day.
(c) Exercise of the repayment option by the Holder of a Note shall be
irrevocable, except that a Holder who has tendered a Note for repayment may
revoke such tender for repayment by written notice to the Trustee received
prior to 5:00 P.M., New York City time, on the tenth calendar day prior to
the repayment date.
(d) Unless otherwise specified in the applicable Company Order, the
repayment option may be exercised by the Holder of a Note for less than the
entire principal amount of the Note; PROVIDED that the principal amount of
the Note remaining outstanding after such repayment is an authorized
denomination. Upon such partial repayment such Note will be cancelled and a
new Note or Notes for the remaining principal amount thereof shall be issued
in the name of the Holder thereof.
(e) While any Note is represented by one or more Global Notes, any such
option for repayment may be exercised by the applicable participant in the
Depositary that has an account for
44
Notes with the Depositary, on behalf of the beneficial owners of the Note
represented by such Global Note or Notes, by delivering a written notice
substantially similar to the above-mentioned form duly completed to the
Trustee at its Corporate Trust Office (or such other address of which the
Company shall from time to time notify the Holders), at least 30 but not more
than 60 calendar days prior to the date of repayment. Notices of election
from such participants on behalf of beneficial owners of the Global Note or
Notes representing such Notes to exercise their option to have such Notes
repaid shall be received by the Trustee by 5:00 P.M., New York City time, on
the last day for giving such notice. All notices shall be executed by a duly
authorized officer of such participant (with signatures guaranteed) and shall
be irrevocable. In addition, beneficial owners of the Global Note or Notes
representing Notes shall effect delivery to the Depositary at the time such
notices of election are given by causing the applicable participant to
transfer such beneficial owner's interest in the Global Note or Notes
representing such Notes, on the Depositary's records, to the Trustee.
SECTION 3.05. EXTENSION.
(a) If a Company Order specifies an Extension Period or Periods for a
Note, the Company shall have an option to extend the Stated Maturity of such
Note for one or more Extension Periods specified in such Company Order, but
not beyond the Final Maturity Date specified therein. The Company may
exercise such option by notifying the Trustee of such exercise at least 45
but not more than 60 calendar days prior to the Pre-Exercise Stated Maturity
Date of such Note, and after receipt of such notification, the Trustee shall
send not later than 40 calendar days prior to such Pre-Exercise Stated
Maturity Date an Extension Notice to the Holder of such Note.
(b) Upon the sending by the Trustee of an Extension Notice to the Holder
of a Note, the Stated Maturity of such Note will be extended automatically,
and, except as modified by the Extension Notice and, subject to Section
3.05(c) and (d), such Note will have the same terms as prior to the sending
of such Extension Notice.
(c) Notwithstanding Sections 3.05(a) and (b), not later than 20 calendar
days prior to the Pre-Exercise Stated Maturity Date, the Company may, at its
option, revoke the interest rate, in the case of a Fixed Rate Note, or the
Spread and/or Spread Multiplier, in the case of a Floating Rate Note,
provided for in the Extension Notice and establish a higher interest rate, in
the case of a Fixed Rate Note, or a Spread and/or Spread Multiplier resulting
in a higher interest rate, in the case of a Floating Rate Note, for the
Extension Period by causing the Trustee to send by
45
telegram, telex, facsimile transmission, hand delivery or letter (first
class, postage prepaid) notice of such higher interest rate or Spread and/or
Spread Multiplier resulting in a higher interest rate, as the case may be, to
the Holder of such Note, and such notice will be irrevocable. All Notes with
respect to which the Stated Maturity is extended will bear such higher
interest rate, in the case of a Fixed Rate Note, or Spread and/or Spread
Multiplier resulting in a higher interest rate, in the case of a Floating
Rate Note, for the Extension Period, whether or not tendered for repayment as
provided in Section 3.05(d).
(d) If the Company extends the Stated Maturity of a Note (including, if
such Stated Maturity has previously been extended, the Stated Maturity as
previously extended), the Holder of such Note shall have the option to elect
repayment of such Note, in whole but not in part, by the Company on the
Pre-Exercise Stated Maturity Date (including, if such Stated Maturity has
previously been extended, the last day of the then current Extension Period),
at a price equal to the principal amount thereof plus accrued and unpaid
interest to but excluding such date. In order for a Note to be so repaid on
the Pre-Exercise Stated Maturity Date, the Holder thereof must follow the
procedures set forth in Section 3.04 for optional repayment, except that the
period for delivery of such Note or notification to the Trustee will be at
least 25 but not more than 35 calendar days prior to the Pre-Exercise Stated
Maturity Date. A Holder who has tendered a Note for repayment following
receipt of an Extension Notice may revoke such tender for repayment by
written notice to the Trustee received prior to 5:00 P.M., New York City
time, on the tenth calendar day prior to the Pre-Exercise Stated Maturity
Date.
SECTION 3.06. RESET NOTES.
(a) If a Company Order specifies Optional Interest Reset Dates for a
Note, the Company shall have an option to reset the interest rate of a Fixed
Rate Note or the Spread and/or Spread Multiplier of a Floating Rate Note,
subject to any formula for such resetting specified in such Company Order.
The Company may exercise such option by notifying the Trustee of such
exercise at least 45 but not more than 60 calendar days prior to an Optional
Interest Reset Date for such Note. If the Company so notifies the Trustee of
such exercise, the Trustee shall send not later than 40 calendar days prior
to such Optional Interest Reset Date, by telegram, telex, facsimile
transmission, hand delivery or letter (first class, postage prepaid) to the
Holder of such Note, a Reset Notice, including the date or dates on which or
the period or periods during which and the price or prices at which
redemption of such Note may occur during the Subsequent Interest Period
commencing on such Optional Interest Reset Date.
46
(b) Notwithstanding Section 3.06(a), not later than 20 calendar days
prior to an Optional Interest Reset Date for a Note, the Company may, at its
option, revoke the interest rate, in the case of a Fixed Rate Note, or the
Spread and/or Spread Multiplier, in the case of a Floating Rate Note,
provided for in a Reset Notice and establish a higher interest rate, in the
case of a Fixed Rate Note, or a Spread and/or Spread Multiplier resulting in
a higher interest rate, in the case of a Floating Rate Note, for the
Subsequent Interest Period commencing on such Optional Interest Reset Date by
causing the Trustee to send by telegram, telex, facsimile transmission, hand
delivery or letter (first class, postage prepaid) notice of such higher
interest rate or Spread and/or Spread Multiplier resulting in a higher
interest rate, as the case may be, to the Holder of such Note, and such
notice will be irrevocable. All Notes with respect to which the interest
rate or Spread and/or Spread Multiplier is reset on an Optional Interest
Reset Date to a higher interest rate or Spread and/or Spread Multiplier
resulting in a higher interest rate will bear such higher interest rate, in
the case of a Fixed Rate Note, or Spread and/or Spread Multiplier resulting
in a higher interest rate, in the case of a Floating Rate Note, whether or
not tendered for repayment as provided in Section 3.06(c).
(c) If the Company elects prior to an Optional Interest Reset Date to
reset the interest rate or the Spread and/or Spread Multiplier of a Note, the
Holder of such Note shall have the option to elect repayment of such Note, in
whole but not in part, by the Company on such Optional Interest Reset Date at
a price equal to the principal amount thereof plus accrued and unpaid
interest to but excluding such Optional Interest Reset Date. In order for a
Note to be so repaid on an Optional Interest Reset Date, the Holder thereof
must follow the procedures set forth in Section 3.04, except that the period
for delivery of such Note or notification to the Trustee will be at least 25
but not more than 35 calendar days prior to such Optional Interest Reset
Date. A Holder who has tendered a Note for repayment following receipt of a
Reset Notice may revoke such tender for repayment by written notice to the
Trustee received prior to 5:00 P.M., New York City time, on the tenth
calendar day prior to such Optional Interest Reset Date.
ARTICLE FOUR
FIRST MORTGAGE BONDS
SECTION 4.01. ISSUANCE RESTRICTIONS. So long as any Notes are
outstanding, the Company will not (a) issue additional First Mortgage Bonds
except to replace any mutilated, lost, destroyed or stolen First Mortgage
Bonds or to effect exchanges and transfers of First Mortgage Bonds or (b)
subject to the lien of
47
the Bond Indenture any property which is excepted and excluded from the Bond
Indenture and the lien and operation thereof by the terms of the Bond
Indenture, unless (i) concurrently with the issuance of such First Mortgage
Bonds or subjection of any such property to such lien, the Company issues,
and the trustee under the Bond Indenture authenticates and delivers to the
Trustee, a First Mortgage Bond or Bonds in an aggregate principal amount
equal to the aggregate principal amount of the Notes then outstanding, and
(ii) concurrently with and as a condition precedent to the issuance of any
Notes thereafter, the Company issues, and the trustee under the Bond
Indenture authenticates and delivers to the Trustee, a First Mortgage Bond or
Bonds in an aggregate principal amount equal to the aggregate principal
amount of the Notes to be issued, and in each such case such First Mortgage
Bonds shall have the same Stated Maturity, bear interest at the same rates,
have redemption and other terms and provisions which are the same as, the
Notes then outstanding or to be issued, as the case may be.
SECTION 4.02. FIRST MORTGAGE BONDS HELD BY THE TRUSTEE. First Mortgage
Bonds delivered to the Trustee pursuant to Section 4.01 shall be fully
registered in the name of the Trustee, which shall hold such First Mortgage
Bonds in trust for the benefit of the Holders from time to time of the Notes,
to provide the security of the First Mortgage Bonds for (a) the full and
prompt payment of the principal of each Note when and as the same shall
become due in accordance with the terms and provisions of this Indenture,
either at the Stated Maturity thereof, upon acceleration of the maturity
thereof or upon call for redemption, and (b) the full and prompt payment of
any premium and interest on each Note when and as the same shall become due
in accordance with the terms and provisions of this Indenture.
SECTION 4.03. TRUSTEE TO EXERCISE RIGHTS OF FIRST MORTGAGE BONDHOLDER.
As a holder of First Mortgage Bonds, the Trustee shall have and exercise all
of the rights of a holder of First Mortgage Bonds possessed under the Bond
Indenture.
SECTION 4.04. NO TRANSFER OF FIRST MORTGAGE BONDS; EXCEPTION. Except as
required to effect an assignment to a successor trustee under this Indenture,
the Trustee shall not sell, assign or transfer any First Mortgage Bonds held
by it pursuant to this Indenture and the Company shall issue stop transfer
instructions to the trustee and any transfer agents under the Bond Indenture
to effect compliance with this Section 4.04.
SECTION 4.05. RELEASE OF FIRST MORTGAGE BONDS. When (a) all of the
principal of and any premium and interest on all Notes shall have been paid
or provision therefor duly made in accordance with this Indenture, or (b) all
Notes shall have been delivered to the Trustee for cancellation by or on
behalf of the Company, or (c)
48
no Note is any longer outstanding under this Indenture and all conditions in
Article Five have been satisfied, the Trustee shall upon request of the
Company, within five Business Days thereafter, deliver to the Company without
charge all First Mortgage Bonds held by the Trustee under this Indenture,
together with such appropriate instruments of release as may be required; the
First Mortgage Bonds so acquired by the Company shall be delivered for
cancellation to the trustee under the Bond Indenture.
SECTION 4.06. VOTING OF FIRST MORTGAGE BONDS.
(a) The Trustee, as a holder of First Mortgage Bonds, shall attend
meetings of Bondholders under the Bond Indenture and either at such meeting,
or otherwise when the consent of such Bondholders is sought without a
meeting, the Trustee shall vote the outstanding principal amount of such
First Mortgage Bonds, or shall consent with respect thereto, proportionally
with respect to the holders all other First Mortgage Bonds then outstanding
under the Bond Indenture and eligible to vote or consent.
(b) Notwithstanding Section 4.06(a), the Trustee shall not vote any
portion of the outstanding principal amount of the First Mortgage Bonds held
by it hereunder in favor of, or give its consent to, any action which, in the
opinion of the Trustee, would materially adversely affect the interests of
the Noteholders, except with the appropriate consent of the Noteholders.
SECTION 4.07. DISCHARGE OF BOND INDENTURE. The Trustee shall surrender
for cancellation to the trustee under the Bond Indenture all First Mortgage
Bonds then held by the Trustee and issued under the Bond Indenture upon
receipt by the Trustee of:
(a) an Officers' Certificate requesting such surrender for cancellation
of such First Mortgage Bonds, and to the effect that no First Mortgage Bonds
are outstanding under the Bond Indenture other than First Mortgage Bonds held
by the Trustee hereunder and that promptly upon such surrender the Bond
Indenture will be satisfied and discharged pursuant to the terms thereof; and
(b) an Opinion of Counsel to the effect that upon satisfaction and
discharge of the Bond Indenture the property formerly subject to the lien of
the Bond Indenture will be subject to no lien except Permitted Encumbrances.
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ARTICLE FIVE
SATISFACTION AND DISCHARGE; UNCLAIMED MONEYS
SECTION 5.01. SATISFACTION AND DISCHARGE. This Indenture shall, upon
the request of the Company set forth in an Officers' Certificate, cease to be
of further effect and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when
(1) either
(A) all Notes theretofore authenticated and delivered (other than
(i) Notes which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 2.07, (ii) Notes for which payment
money has theretofore been deposited with or paid to the Trustee and
thereafter repaid to the Company or discharged from such trust, as
provided in Section 5.03) have been delivered to the Trustee for
cancellation; or
(B) all such Notes not theretofore delivered 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 by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) of this subclause (B),
has irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for such purpose an amount in United States dollars,
U.S. Government Obligations maturing as to principal and interest in such
amounts and at such times as will ensure the availability of United States
dollars, or a combination of United States dollars and U.S. Government
Obligations, sufficient to pay and discharge the entire indebtedness on
such Notes for principal (and premium, if any) and interest to the date of
such deposit (in the case of Notes which have become due and payable) or
to the Stated Maturity or Redemption Date, as the case may be; PROVIDED,
HOWEVER, in the event a petition for relief under
50
the federal bankruptcy laws, as now or hereafter constituted, or any other
applicable federal or state bankruptcy, insolvency or other similar law,
is filed with respect to the Company within 91 days after the deposit
and the Trustee is required to return the deposited money to the
Company, the obligations of the Company under this Indenture with
respect to such Notes shall not be deemed terminated or discharged;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company;
(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 relating to the satisfaction and discharge
of this Indenture with respect to such Notes have been complied with; and
(4) the Company has delivered to the Trustee an Opinion of Counsel
or a ruling by the Internal Revenue Service to the effect that Holders
of the Notes will not recognize income, gain or loss for federal income
tax purposes as a result of such deposit and discharge.
Notwithstanding the satisfaction and discharge of this Indenture, this
Indenture shall continue in effect as to (i) rights of registration of
transfer and exchange of Notes, (ii) substitution of apparently mutilated,
defaced, destroyed, lost or stolen Notes, (iii) rights of Noteholders to
receive payments of principal thereof and any premium and interest thereon,
upon the original stated due dates therefor (but not upon acceleration of
maturity), (iv) the rights, obligations and immunities of the Trustee
hereunder and (v) the rights of the Holders of Notes as beneficiaries hereof
with respect to the property so deposited with the Trustee payable to all or
any of them), and the Trustee, on demand of the Company accompanied by an
Officers' Certificate and an Opinion of Counsel and at the cost and expense
of the Company, shall execute proper instruments acknowledging such
satisfaction of and discharging this Indenture. Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of the Company
to the Trustee under Section 9.07 shall survive.
SECTION 5.02. DEPOSITED MONEYS TO BE HELD IN TRUST BY TRUSTEE. Subject
to Section 5.03, all moneys and U.S. Government Obligations deposited with
the Trustee pursuant to Section 5.01 shall be held in trust and applied by it
to the payment, either directly or through any paying agent (including the
Company if acting as its own paying agent), to the Holders of the particular
Notes for the payment or redemption of which such moneys and U.S. Government
Obligations have been deposited with the Trustee, of all
51
sums due and to become due thereon for principal and premium, if any, and
interest.
SECTION 5.03. RETURN OF UNCLAIMED MONEYS. Any moneys deposited with or
paid to the Trustee for payment of the principal of or any premium or
interest on any Notes and not applied but remaining unclaimed by the Holders
of such Notes for two years after the date upon which the principal of or any
premium or interest on such Notes, as the case may be, shall have become due
and payable, shall be repaid to the Company by the Trustee on written demand
and all liability of the Trustee shall thereupon cease; and any Holder of any
of such Notes shall thereafter look only to the Company for any payment which
such Holder may be entitled to collect; PROVIDED, HOWEVER, that the Trustee
before being required to make any such repayment, may at the expense of the
Company cause to be mailed to such Holder notice that such money remains
unclaimed and that, after a date specified therein which shall not be less
than 30 days from the date of such mailing, any unclaimed balance of such
money then remaining will be repaid to the Company.
SECTION 5.04. REINSTATEMENT. If the Trustee is unable to apply any
money or U.S. Government Obligations in accordance with Section 5.01 by
reason of any legal proceeding or any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture with respect to
the Notes to which such money or U.S. Government Obligations were to have
been applied shall be revived and reinstated as though no deposit had
occurred pursuant to Section 5.01 until such time as the Trustee is permitted
to apply such money or U.S. Government Obligations in accordance with Section
5.01; PROVIDED, HOWEVER, that if the Company has made any payment of
principal of or any premium or interest on any Notes because of the
reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Notes to receive such payment from the money or
U.S. Government Obligations held by the Trustee.
ARTICLE SIX
PARTICULAR COVENANTS OF THE COMPANY
SECTION 6.01. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST. The Company
covenants and agrees for the benefit of the Holders of the Notes that it will
duly and punctually pay or cause to be paid the principal of and any premium
and interest on each of the Notes at the places, at the respective times and
in the manner provided in such Notes.
52
SECTION 6.02. OFFICE FOR NOTICES AND PAYMENTS, ETC. So long as any of
the Notes remain outstanding, the Company will maintain in the Borough of
Manhattan, The City of New York, an office or agency where the Notes may be
presented for registration of transfer and for exchange as in this Indenture
provided, and where, at any time when the Company is obligated to make a
payment upon Notes (other than a payment as to which it is permitted to make
such payment by check), the Notes may be presented for payment, and shall
maintain at any such office or agency and at its principal office an office
or agency where notices and demands to or upon the Company in respect of the
Notes or of this Indenture may be served; PROVIDED that the Company may
maintain at its principal executive offices, one or more other offices or
agencies for any or all of the foregoing purposes; the Company hereby
appoints the Trustee as agent of the Company for the foregoing purposes. The
Company will give to the Trustee written notice of the location of each such
office or agency and of any change of location thereof. In case the Company
shall fail to maintain any such office or agency or shall fail to give such
notice of the location or of any change in the location thereof,
presentations may be made and notices and demands may be served at the
Corporate Trust Office of the Trustee.
SECTION 6.03. APPOINTMENTS TO FILL VACANCIES IN TRUSTEE'S OFFICE. The
Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 9.11, a Trustee, so
that there shall at all times be a Trustee hereunder.
SECTION 6.04. ANNUAL STATEMENT AND NOTICE.
(a) The Company will deliver to the Trustee within 120 days after the
end of each fiscal year of the Company, beginning with the fiscal year ending
December 31, 1998, an Officers' Certificate which complies with TIA Section
314(a)(4) stating that in the course of the performance by the signers of
their duties as officers of the Company they would obtain knowledge of any
default by the Company in the performance of any covenant contained in this
Indenture or an Event of Default stating whether they have obtained knowledge
of any such default or such Event of Default, and, if so, specifying each
such default or such Event of Default of which the signers have knowledge,
and the nature and status thereof.
(b) The Company shall give to the Trustee written notice of the
occurrence of an Event of Default within five days after the Company becomes
aware of such occurrence.
SECTION 6.05. CORPORATE EXISTENCE. Subject to Article Twelve, the
Company will do or cause to be done all things necessary to preserve and keep
in full force and effect its
53
corporate existence, rights (charter and statutory) and franchises; PROVIDED
HOWEVER, that the Company shall not be required to preserve any such right or
franchise if the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company.
SECTION 6.06. LIMITATION UPON MORTGAGES AND LIENS. The Company will not
at any time directly or indirectly create or assume and will not cause or
permit a Subsidiary directly or indirectly to create or assume, except in
favor of the Company or a Wholly-Owned Subsidiary, any mortgage, pledge or
other lien or encumbrance upon any Principal Facility or any interest it may
have therein or upon any stock of any Regulated Subsidiary or any
indebtedness of any Subsidiary to the Company or any other Subsidiary,
whether now owned or hereafter acquired, without making effective provision
(and the Company covenants that in such case it will make or cause to be
made, effective provision) whereby the outstanding Notes and any other
indebtedness of the Company then entitled thereto shall be secured by such
mortgage, pledge, lien or encumbrance equally and ratably with any and all
other obligations and indebtedness thereby secured, so long as any such other
obligations and indebtedness shall be so secured; PROVIDED, HOWEVER, that the
foregoing covenant shall not be applicable to the lien of the Bond Indenture
or Permitted Encumbrances.
SECTION 6.07. WAIVER OF CERTAIN COVENANTS. The Company may omit in any
particular instance to comply with any term, provision or condition set forth
in Article Four or Section 6.06 (and if so specified, any other covenant not
set forth herein and specified pursuant to Section 2.05 to be applicable to
any Notes, except as otherwise provided pursuant to Section 2.05), if before
the time for such compliance the Holders of at least a majority in aggregate
principal amount of the Notes then outstanding shall either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no waiver shall extend to or affect such term,
provision or condition except to the extent expressly so waived, and, until
such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition
shall remain in full force and effect.
ARTICLE SEVEN
NOTEHOLDER LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
SECTION 7.01. NOTEHOLDER LISTS. The Company will, so long as any Notes
are outstanding under this Indenture, furnish or cause to be furnished to the
Trustee within 15 days prior to each
54
Interest Payment Date on Notes then outstanding, and at such other times as
the Trustee may request in writing, the information required by TIA Section
312(a), which the Trustee shall preserve as required by TIA Section 312(a).
The Trustee shall also comply with TIA Section 312(b), but the Trustee, the
Company and each Person acting on behalf of the Trustee or the Company shall
have the protection of TIA Section 312(c).
SECTION 7.02. SECURITIES AND EXCHANGE COMMISSION REPORTS. The Company
shall (a) file with the Trustee, within 15 days after the Company is required
to file the same with the Securities and Exchange Commission, copies of the
reports, information and documents (or portions thereof) required to be so
filed pursuant to TIA Section 314(a), and (b) comply with the other
provisions of TIA Section 314(a).
SECTION 7.03. REPORTS BY THE TRUSTEE. The Trustee shall (a) transmit
within 60 days after May 15 in each year, beginning with the year 1999, to
the Noteholders specified in TIA Section 3.13(c) and to the Securities and
Exchange Commission, a brief report dated as of such May 15 and complying
with the requirements of TIA Section 313(a), but no report shall be required
if no event described in TIA Section 313(a) shall have occurred within the
previous twelve months ending on such date. The Trustee shall also comply
with the other provisions of TIA Section 313(b)(2).
ARTICLE EIGHT
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS
ON EVENT OF DEFAULT
SECTION 8.01. EVENTS OF DEFAULT. "Event of Default" wherever used
herein with respect to any Notes means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law, pursuant to any
judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body):
(1) default in the payment of any interest upon any Note when it
becomes due and payable, and continuance of such default for a period of
30 days; or
(2) default in the payment of the principal of (and premium, if
any, on) any Note at its Maturity; or
(3) default in the performance or breach of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose
55
breach is elsewhere in this Section 8.01 specifically dealt with), and
continuance of such default or breach for a period of 60 days after
there has been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least
25% in aggregate principal amount of the Notes then outstanding, a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(4) default (i) in the payment of any principal of or interest on
any Indebtedness of the Company or any Subsidiary of the Company (other
than Notes), aggregating more than $10,000,000 in principal amount, when
due after giving effect to any applicable grace period or (ii) in the
performance of any other term or provision of any Indebtedness of the
Company or any Subsidiary of the Company (other than Notes) in excess of
$10,000,000 principal amount that results in such Indebtedness becoming
or being declared due and payable prior to the date on which it would
otherwise become due and payable, and such acceleration shall not have
been rescinded or annulled, or such Indebtedness shall not have been
discharged, within a period of 15 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Notes then outstanding, a written notice
specifying such default or defaults and stating that such notice is a
"Notice of Default" hereunder; or
(5) the entry against the Company or any Subsidiary of the Company
of one or more judgments, decrees or orders by a court having
jurisdiction in the premises from which no appeal may be or is taken for
the payment of money, either individually or in the aggregate, in excess
of $10,000,000, and the continuance of such judgment, decree or order
unsatisfied and in effect for any period of 45 consecutive days after
the amount thereof is due without a stay of execution and there has been
given, by registered or certified mail, to the Company by the Trustee or
to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Notes then outstanding, a written
notice specifying such entry and continuance of such judgment, decree or
order and stating that such notice is a "Notice of Default" hereunder;
or
(6) the entry of a decree or order for relief in respect of the
Company by a court having jurisdiction in the premises in an involuntary
case under the federal bankruptcy laws, as now or hereafter constituted,
or any other applicable federal
56
or state bankruptcy, insolvency or other similar law, or a decree or order
adjudging the Company a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any applicable federal
or state law, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or other similar official) of the Company or of
any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order unstayed and in effect for a period of 60 consecutive days; or
(7) the commencement by the Company of a voluntary case under the
federal bankruptcy laws, as now or hereafter constituted, or any other
applicable federal or state bankruptcy, insolvency or other similar law,
or the consent by it to the entry of an order for relief in an
involuntary case under any such law or to the appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or other similar
official) of the Company or of any substantial part of its property, or
the making by it of an assignment for the benefit of its creditors, or
the admission by it in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by the
Company in furtherance of any such action; or
(8) any other Event of Default provided with respect to the
particular Note specified in the applicable Company Order.
SECTION 8.02. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If an
Event of Default with respect to the Notes then outstanding occurs and is
continuing, then in every such case the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Notes then outstanding may
declare the principal amount of all the Notes to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if
given by Holders), and upon any such declaration such principal amount shall
become immediately due and payable. Upon payment of such amount in United
States dollars, all obligations of the Company in respect of the payment of
principal of the Notes shall terminate.
At the time after such a declaration of acceleration with respect to the
Notes has been made and before a judgment or decree for payment of the money
due has been obtained by the Trustee as hereinafter in this Article provided,
the Holders of a majority in aggregate principal amount of the Notes then
outstanding, by written notice to the Company and the Trustee, may rescind
and annul such declaration and its consequences if
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(1) the Company has paid or deposited with the Trustee a sum in
United States dollars sufficient to pay
(A) all overdue installments of interest on all Notes,
(B) the principal of (and premium, if any, on) any Notes which have
become due otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed therefor in such
Notes,
(C) to the extent that payment of such interest is lawful, interest
upon overdue installments of interest on each Note at the rate
borne by such Note, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel;
and
(2) All Events of Default with respect to the Notes, other than the
nonpayment of the principal of Notes which has become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 8.11.
No such rescission and waiver shall affect any subsequent default or impair
any right consequent thereon.
SECTION 8.03. COLLECTION AND SUITS FOR ENFORCEMENT BY TRUSTEE. The
Company covenants that if
(1) default is made in the payment of any installment of interest on
any Note when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of principal of (or premium, if
any, on) any Notes as and when the name shall have become due and payable,
the Company shall, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Notes, the amount then due and payable on such Notes for
principal (and premium, if any) and interest, if any, and, to the extent that
payment of such interest shall be legally enforceable, interest upon the
overdue principal (and premium, if any) and upon overdue installments of
interest at the rate borne by the Notes; and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
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collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amount forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the
same against the Company or any other obligor under such Notes, and collect
the moneys adjudged or decreed to be payable in the manner provided by law
out of the property of the Company or any other obligor upon such Notes
wherever situated.
If an Event of Default with respect to any Notes occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of the Notes by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of any covenant
or agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
SECTION 8.04. TRUSTEE MAY FILE PROOFS OF CLAIM. In the case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceedings, or any voluntary or involuntary case under the federal
bankruptcy laws, as now or hereafter constituted, relative to the Company or
any other obligor upon the Notes or the property of the Company or of such
other obligor or their creditors, the Trustee (irrespective of whether the
principal of such Notes shall then be due and payable as therein expressed or
by declaration of acceleration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of overdue
principal or interest) shall be entitled and empowered, by intervention in
such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (or,
if any Notes are Original Issue Discount Securities, the Amortized Face
Amount thereof or such other portion of the principal amount as may be due
and payable with respect to such Original Issue Discount Notes pursuant to
a declaration in accordance with Section 8.02) (and premium, if any) and
interest owning and unpaid in respect of the Notes and to file such other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Holders of such Notes allowed in such judicial proceeding, and
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(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian, liquidator, sequestrator (or
other similar official) in any such proceeding is hereby authorized by each
such 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 such
Holders, to pay to the Trustee and amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 9.06.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the Notes
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 8.05. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF NOTES.
All rights of action and claims under this Indenture or the Notes may be
prosecuted and enforced by the Trustee without the possession of any of such
Notes or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name,
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit
of the Holders of the Notes in respect of which such judgment has been
recovered.
SECTION 8.06. APPLICATION OF MONEYS COLLECTED BY TRUSTEE. Any moneys
collected by the Trustee with respect to any of the Notes shall be applied in
the order following, at the date or dates fixed by the Trustee for the
distribution of such moneys, upon presentation of the several Notes, and
stamping thereon the payment, if only partially paid, and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due to the Trustee pursuant
to Section 9.07;
SECOND: In case the principal of the Notes then outstanding in
respect of which such moneys have been collected shall not have become
due and be unpaid, to the payment of interest on the Notes, in the
order of the maturity of the installments of such interest, with
interest (to the extent allowed by law and to the extent
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that such interest has been collected by the Trustee) upon the overdue
installments of interest at the rate borne by the Notes, such payments
to be made ratably to the persons entitled thereto;
THIRD: In case the principal of the Notes then outstanding in
respect of which such moneys have been collected shall have become
due, by declaration or otherwise, to the payment of the whole amount
then owing and unpaid upon the Notes for principal and any premium and
interest thereon, with interest on the overdue principal and any
premium and (to the extent allowed by law and to the extent that such
interest has been collected by the Trustee) upon overdue installments
of interest at the rate borne by the Notes; and in case such moneys
shall be insufficient to pay in full the whole amount so due and
unpaid upon the Notes, then to the payment of such principal and any
premium and interest without preference or priority of principal and
any premium over interest, or of interest over principal and any
premium or of any installment of interest over any other installment
of interest, or of any Note over any other Note, ratably to the
aggregate of such principal and any premium and accrued and unpaid
interest; and
FOURTH: To the payment of the remainder, if any, to the Company,
its successors or assigns, or to whomsoever may lawfully be entitled
to the same, or as a court of competent jurisdiction may determine.
SECTION 8.07. PROCEEDINGS BY NOTEHOLDERS.
(a) No Holder of any Note shall have any right by virtue of or by
availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this
Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless such Holder previously shall have given to the
Trustee written notice of default with respect to such Note and of the
continuance thereof, as hereinabove provided, and unless also the Holders of
not less than a majority in aggregate principal amount of the Notes then
outstanding shall have made written request upon the Trustee to institute
such action, suit or proceeding in its own name as Trustee hereunder and
shall have offered to the Trustee such reasonable indemnity as it may require
against the costs, expenses and liabilities to be incurred therein or
thereby, and the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused to institute
any such action, suit or proceeding, it being understood and intended, and
being expressly covenanted by the taker and the Holder of every
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Note with every other taker and Holder and the Trustee that no one or more
Holders of Notes 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 Holder of Notes, or to obtain or seek to
obtain priority over or preference to any other such Holder, or to enforce
any right under this Indenture, except in the manner herein provided and for
the equal, ratable and common benefit of all Holders of Notes.
(b) Notwithstanding any other provision in this Indenture, however, the
rights of any Holder of any Note to receive payment of the principal of and
any premium and interest on such Note, on or after the respective due dates
expressed in such Note (or, in the case of redemption, on the Redemption
Date), or to institute suit for the enforcement of any such payment on or
after such respective dates shall not be impaired or affected without the
consent of such Holder.
SECTION 8.08. PROCEEDINGS BY TRUSTEE. In case of an Event of Default
hereunder the Trustee may in its discretion proceed to protect and enforce
the rights vested in it by this Indenture by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce
any of such rights, either by suit in equity or by action at law or by
proceeding in bankruptcy or otherwise, whether for the specific enforcement
of any covenant or agreement contained in this Indenture or in aid of the
exercise of any power granted in this Indenture, or to enforce any other
legal or equitable right vested in the Trustee by this Indenture or by law.
SECTION 8.09. REMEDIES CUMULATIVE AND CONTINUING. All powers and
remedies given by this Article Eight to the Trustee or to the Noteholders
shall, to the extent permitted by law, be deemed cumulative and not exclusive
of any powers and remedies hereof or of any other powers and remedies
available to the Trustee or the Holders of the Notes, by judicial proceedings
or otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture, and no delay or omission of the
Trustee or of any Holder of any of the Notes in exercising any right or power
accruing upon any default occurring and continuing as aforesaid shall impair
any such right or power, or shall be construed to be a waiver of any such
default or an acquiescence therein; and, subject to Section 8.07, every power
and remedy given by this Article Eight or by law to the Trustee or to the
Noteholders may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Noteholders.
SECTION 8.10. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or any
Noteholder has instituted any proceeding to enforce any right or remedy under
this Indenture and such
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proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Noteholder, then and in every
such case, subject to any determination in such proceeding, the Company, the
Trustee and the Noteholders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of
the Company, the Trustee and the Noteholders shall continue as though no such
proceeding had been instituted.
SECTION 8.11. DIRECTION OF PROCEEDINGS AND WAIVER OF DEFAULTS BY
MAJORITY NOTEHOLDERS. The Holders of a majority in aggregate principal
amount of the Notes then outstanding 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, HOWEVER, that (subject to Section 9.01) the Trustee shall have the
right to decline to follow any such direction if the Trustee being advised by
counsel determines that the action or proceeding so directed may not lawfully
be taken or if the Trustee in good faith by its board of directors or
trustees, executive committee, or a trust committee of directors or trustees
or responsible officers shall determine that the action or proceeding so
directed would involve the Trustee in personal liability or would be unduly
prejudicial to the rights of Noteholders not joining in such directions.
Prior to any declaration accelerating the Maturity of the Notes, the Holders
of a majority in aggregate principal amount of the Notes then outstanding may
on behalf of all of the Holders of all of the Notes waive any past default or
Event of Default hereunder and its consequences, except a default (i) in the
payment of principal of or any premium or interest on any Note or (ii) in
respect of a covenant or provision hereof which pursuant to Section 13.02
cannot be modified or amended without the consent of the Holder of each Note
then outstanding that would be affected thereby. Upon any such waiver, such
default will cease to exist, and any Event of Default arising therefrom will
be deemed to have been cured, for every purpose of the Indenture and the
Notes, but no such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon.
SECTION 8.12. NOTICE OF DEFAULT. The Trustee shall, within 90 days
after the occurrence of a default with respect to the Notes, give to all
Holders of the Notes specified in TIA Section 3.13(c), in the manner provided
in Section 15.10, notice of such default, unless such default shall have been
cured before the giving of such notice, the term "default" for the purpose of
this Section 8.12 being hereby defined to be any event which is or after
notice or lapse of time or both would become an Event of Default; PROVIDED
that, except in the case of default in the payment of the principal of or any
premium or interest on any of the Notes, the Trustee shall be protected in
withholding such notice if and so
63
long as its board of directors or trustees, executive committee, or a trust
committee of directors or trustees or responsible officers in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Notes. The Trustee shall not be charged with knowledge of any
Event of Default unless a responsible officer of the Trustee assigned to the
corporate trust division of the Trustee shall have actual knowledge of such
Event of Default.
SECTION 8.13. UNDERTAKING TO PAY COSTS. All parties to this Indenture
agree, and each Holder of any Note by acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but this Section 8.13 shall not apply
to any suit instituted by the Trustee, or to any suit instituted by any
Noteholder, or group of Noteholders, holding in the aggregate more than 10%
in principal amount of the Notes then outstanding, or to any suit instituted
by any Noteholder for the enforcement of the payment of the principal of or
any premium or interest on any Note on or after the due date expressed in
such Note.
ARTICLE NINE
CONCERNING THE TRUSTEE
SECTION 9.01. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default,
(1) 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
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the
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same to determine whether or not they conform to the requirements of
this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act, or its own wilful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section 9.01.
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of not less than a majority in principal amount of the Notes
at the time outstanding, determined as provided in Section 10.04, relating
to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Indenture with respect to the Notes; and
(4) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section 9.01.
SECTION 9.02. NOTICE OF DEFAULTS. Within 90 days after the occurrence
of any default hereunder the Trustee shall transmit by mail to all Holders as
their names and addresses appear in the Note register, notice of such default
hereunder known to the Trustee, unless such default shall have been cured or
waived;
65
PROVIDED, HOWEVER, that, except in the case of a default in the payment of
the principal of (or premium, if any) or interest on any Note or in the
payment of any sinking fund installment with respect to any Notes, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
or Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the Holders of such Notes;
and PROVIDED, FURTHER, that in the case of any default of the character
specified in Section 8.01(3), no such notice to Holders shall be given until
at least 30 days after occurrence thereof. For the purpose of this Section
9.02, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default.
SECTION 9.03. CERTAIN RIGHTS OF TRUSTEE. Subject to the provisions of
Section 9.01:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by an Officers' Certificate 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 omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and
66
liabilities which might be incurred by it in compliance with such request
or direction;
(f) prior to the occurrence of an Event of Default and after the curing
or waiving of all such Events of Default which may have occurred, the Trustee
shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, approval or other paper or
document, or the books and records of the Company, unless requested in
writing to do so by the Holders of a majority in aggregate principal amount
of the Notes then outstanding; PROVIDED, HOWEVER, that if the payment within
a reasonable time to the Trustee of the costs, expenses or liabilities likely
to be incurred by it in the making of such investigation is not, in the
opinion of the Trustee, reasonably assured to the Trustee by the security
afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such costs, expenses or liabilities as a
condition to so proceeding; the reasonable expense of every such
investigation shall be paid by the Company or, if paid by the Trustee, shall
be repaid by the Company upon demand; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
SECTION 9.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES. The
recitals contained herein and in the Notes, except the Trustee's certificates
of authentication, shall be taken as the statements of the Company, and the
Trustee or any Authenticating Agent assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Notes. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Notes or the proceeds thereof.
SECTION 9.05. MAY HOLD NOTES. The Trustee, any Authenticating Agent,
any Paying Agent, any Note registrar or any other agent of the Company, in
its individual or any other capacity, may become the owner or pledgee of
Notes and, subject to Sections 9.08 and 9.13, may otherwise deal with the
Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Note registrar or such other agent.
SECTION 9.06. MONEY HELD IN TRUST. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under
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no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 9.07. COMPENSATION AND REIMBURSEMENT. The Company agrees:
(1) to pay to the Trustee such compensation that the Company and
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 reasonable 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 indemnity the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any its powers or duties hereunder.
The provisions of this Section 9.07 shall survive this Indenture.
SECTION 9.08. DISQUALIFICATION; CONFLICTING INTERESTS.
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section 9.08, with respect to the Notes, it shall, within 90
days after ascertaining that it has such conflicting interest, either
eliminate such conflicting interest or resign in the manner and with the
effect hereinafter specified in this Article Nine.
(b) In the event that the Trustee shall fail to comply with the
provisions of Subsection (a) of this Section 9.08, the Trustee shall, within
10 days after the expiration of such 90-day period, transmit by mail to all
Holders as their names and addresses appear in the Note registrar, notice of
such failure.
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(c) For the purposes of this Section 9.08, the Trustee shall be deemed
to have a conflicting interest with respect to the Notes if
(1) the Trustee is trustee under another indenture under which any
securities, or certificates of interest or participation in any other
securities, of the Company are outstanding, unless such other indenture is
a collateral trust indenture under which the only collateral consists of
Notes, PROVIDED that there shall be excluded from the operation of this
paragraph this Indenture with respect to any other indenture or indenture
under which securities, or certificates of interest or participation in
other securities, of the Company are outstanding, if
(i) this Indenture and such other indenture or indentures are
wholly unsecured and such other indenture or indentures are hereafter
qualified under the TIA, unless the Securities and Exchange Commission
shall have found and declared by order pursuant to Section 305(b) or
Section 307(c) of the TIA that differences exist between the
provisions of this Indenture and the provisions of such other
indenture or indentures which are so likely to involve a material
conflict of interest as to make it necessary in the public interest or
for the protection of investors to disqualify the Trustee from acting
as such under this Indenture with respect to such other indenture or
indentures, or
(ii) the Company shall have sustained the burden of proving, on
application to the Securities and Exchange Commission and after
opportunity for hearing thereon, that trusteeship under this Indenture
with respect to such other indenture or indentures is not so likely to
involve a material conflict of interest as to make it necessary in the
public interest or for the protection of investors to disqualify the
Trustee from acting as such under this Indenture with respect to such
other indenture or indentures;
(2) the Trustee or any of its directors or executive officers is an
obligor upon the Notes or an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is directly or
indirectly controlled by or is under direct or indirect common control with
the Company or an underwriter for the Company;
69
(4) the Trustee or any of its directors or executive officers is a
director, officer, partner, employee, appointee or representative of the
Company, or of an underwriter (other than the Trustee itself) for the
Company who is currently engaged in the business of underwriting, except
that (i) one individual may be a director or an executive officer, or both,
of the Trustee and a director or an executive officer, or both, of the
Company but may not be at the same time an executive officer of both the
Trustee and the Company; (ii) if and so long as the number of directors of
the Trustee in office is more than nine, one additional individual may be a
director or an executive officer, or both, of the Trustee and a director of
the Company; and (iii) the Trustee may be designated by the Company or by
any underwriter for the Company to act in the capacity of transfer agent,
registrar, custodian, paying agent, fiscal agent, escrow agent or
depositary, or in any other similar capacity, or, subject to the provisions
of paragraph (1) of this Subsection, to act as trustee, whether under an
indenture or otherwise;
(5) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Company or by any director, partner or
executive officer thereof, or 20% or more of such voting securities is
beneficially owned, collectively, by any two or more of such persons; or
10% or more of the voting securities of the Trustee is beneficially owned
either by an underwriter for the Company or by any director, partner or
executive officer thereof, or is beneficially owned, collectively, by any
two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), (i) 5% or more of the voting securities, or 10% or
more of any other class of security, of the Company not including the Notes
and securities issued under any other indenture under which the Trustee is
also trustee, or (ii) 10% or more of any class of security of an
underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), 5% or more of the voting securities of any person who,
to the knowledge of the Trustee, owns 10% or more of the voting securities
of, or controls directly or indirectly or is under direct or indirect
common control with, the Company;
(8) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), 10% or more of any
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class of security of any person who, to the knowledge of the Trustee, owns
50% or more of the voting securities of the Company; or
(9) the Trustee owns, on May 15 in any calendar year, in the capacity
of executor, administrator, testamentary or inter vivos trustee, guardian,
committee or conservator, or in any other similar capacity, an aggregate of
25% or more of the voting securities, or of any class of security, of any
person, the beneficial ownership of a specified percentage of which would
have constituted a conflicting interest under paragraph (6), (7) or (8) of
this Subsection. As to any such securities of which the Trustee acquired
ownership through becoming executor, administrator or testamentary trustee
of an estate which included them, the provisions of the preceding sentence
shall not apply, for a period of two years from the date of such
acquisition, to the extent that such securities included in such estate do
not exceed 25% of such voting securities or 25% of any such class of
security. Promptly after May 15 in each calendar year, the Trustee shall
make a check of its holdings of such securities in any of the above-
mentioned capacities as of such May 15. If the Company fails to make
payment in full of the principal of (or premium, if any) or interest on any
of the Notes when and as the same becomes due and payable, and such failure
continues for 30 days thereafter, the Trustee shall make a prompt check of
its holdings of such securities in any of the above-mentioned capacities as
of the date of the expiration of such 30-day period, and after such date,
notwithstanding the foregoing provisions of this paragraph, all such
securities so held by the Trustee, with sole or joint control over such
securities vested in it, shall, but only so long as such failure shall
continue, be considered as though beneficially owned by the Trustee for the
purposes of paragraphs (6), (7) and (8) of this Subsection.
The specification of percentages in paragraphs (5) to (9), inclusive,
of this Subsection shall not be construed as indicating that the ownership of
such percentages of the securities of a person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraph (3) or (7) of this Subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this
Subsection only, (i) the terms "security" and "securities" shall include only
such securities as are generally known as corporate securities, but shall not
include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies or banking firms, or any certificate of interest or participation in
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any such note or evidence of indebtedness; (ii) an obligation shall be deemed to
be "in default" when a default in payment of principal shall have continued for
30 days or more and shall not have been cured; and (iii) the Trustee shall not
be deemed to be the owner or holder of (A) any security which it holds as
collateral security, as trustee or otherwise, for an obligation which is not in
default as defined in clause (ii) above, or (B) any security which it holds as
collateral security under this Indenture, irrespective of any default hereunder,
or (C) any security which it holds as agent for collection, or as custodian,
escrow agent or depositary, or in any similar representative capacity.
(d) For the purposes of this Section 9.08:
(1) The term "underwriter", when used with reference to the Company,
means every person who, within three years prior to the time as of which
the determination is made, has purchased from the Company with a view to,
or has offered or sold for the Company in connection with, the distribution
of any security of the Company outstanding at such time, or has
participated or has had a direct or indirect participation in any such
undertaking, or has participated or has had a participation in the direct
or indirect underwriting of any such undertaking, but such term shall not
include a person whose interest was limited to a commission from an
underwriter or dealer not in excess of the usual and customary
distributors' or sellers' commission.
(2) The term "director" means any director of a corporation or any
individual performing similar functions with respect to any organization,
whether incorporated or unincorporated.
(3) The term "person" means an individual, a corporation, a
partnership, an association, a joint-stock company, a trust, an
unincorporated organization or a government or political subdivision
thereof. As used in this paragraph, the term "trust" shall include only a
trust where the interest or interests of the beneficiary or beneficiaries
are evidenced by a security.
(4) The term "voting security" means any security presently entitling
the owner or holder thereof to vote in the direction or management of the
affairs of a person, or any security issued under or pursuant to any trust,
agreement or arrangement whereby a trustee or trustees or agent or agents
for the owner or holder of such security are presently entitled to vote in
the direction or management of the affairs of a person.
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(5) The term "Company" means any obligor upon the Notes.
(6) The term "executive officer" means the president, every vice
president, every trust officer, the cashier, the secretary and the
treasurer of a corporation, and any individual customarily performing
similar functions with respect to any organization whether incorporated or
unincorporated, but shall not include the chairman of the board of
directors.
(e) The percentages of voting securities and other securities
specified in this Section 9.08 shall be calculated in accordance with the
following provisions:
(1) A specified percentage of the voting securities of the Trustee,
the Company or any other person referred to in this Section 9.08 (each of
whom is referred to as a "person" in this paragraph) means such amount of
the outstanding voting securities of such person as entitles the holder or
holders thereof to cast such specified percentage of the aggregate votes
which the holders of all the outstanding voting securities of such person
are entitled to cast in the direction or management of the affairs of such
person.
(2) A specified percentage of a class of securities of a person means
such percentage of the aggregate amount of securities of the class
outstanding.
(3) The term "amount", when used in regard to securities, means the
principal amount if relating to evidences of indebtedness, the number of
shares if relating to capital shares and the number of units if relating to
any other kind of security.
(4) The term "outstanding" means issued and not held by or for the
account of the issuer. The following securities shall not be deemed
outstanding within the meaning of this definition:
(i) securities of an issuer held in a sinking fund relating to
securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund relating to
another class of securities of the issuer, if the obligation evidenced
by such other class of securities is not in default as to principal or
interest or otherwise;
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(iii) securities pledged by the issuer thereof as security for an
obligation of the issuer not in default as to principal or interest or
otherwise; and
(iv) securities held in escrow if placed in escrow by the issuer
thereof;
PROVIDED, HOWEVER, that any voting securities of an issuer shall be deemed
outstanding if any person other than the issuer is entitled to exercise the
voting rights thereof.
(5) A security shall be deemed to be of the same class as another
security if both securities confer upon the holder or holders thereof
substantially the same rights and privileges; PROVIDED, HOWEVER, that, in
the case of secured evidences of indebtedness, all of which are issued
under a single indenture, differences in the interest rates or maturity
dates of various series thereof shall not be deemed sufficient to
constitute such series different classes and PROVIDED, FURTHER, that, in
the case of unsecured evidences of indebtedness, differences in the
interest rates or maturity dates thereof shall not be deemed sufficient to
constitute them securities of different classes, whether or not they are
issued under a single indenture.
SECTION 9.09. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. There shall
at all times be a Trustee hereunder which shall be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000
subject to supervision or examination by Federal or State authority and having
its Corporate Trust Office in Columbus, Ohio or New York, New York, to the
extent there is such an institution eligible and willing to serve. If such
corporation 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 9.09, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section
9.09, it shall resign immediately in the manner and with the effect hereinafter
specified in this Article Nine.
SECTION 9.10. 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 Nine
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shall become effective until the acceptance of appointment by the successor
Trustee in accordance with the applicable requirements of Section 9.11.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If the instrument of acceptance by a successor Trustee
required by Section 9.11 shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(c) The Trustee may be removed at any time by the Holders of a
majority in aggregate principal amount of the Notes then outstanding, delivered
to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 9.08(a) after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Note for at least six months, or
(2) the Trustee shall cease to be eligible under Section 9.09 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 8.13, any Holder who has been a bona fide
Holder of a Note for at least six months may, on behalf of such Holder and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee 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, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee or
Trustees and shall comply with the applicable requirements of Section 9.11. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by the
Holders of a majority in aggregate principal amount of the Notes then
outstanding delivered to the Company and the retiring
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Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements
of Section 9.11, become the successor Trustee and supersede the successor
Trustee appointed by the Company. If no successor Trustee shall have been so
appointed by the Company or the Holders and accepted appointment in the
manner required by Section 9.11, any Holder who has been a bona fide Holder
of a Note for at least six months may, on behalf of such Holder and all
others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee by mailing
written notice of such event by first-class mail, postage prepaid, to all
Holders as their names and addresses appear in the Note register. Each notice
shall include the name of the successor Trustee and the address of its Corporate
Trust Office.
SECTION 9.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) Every successor Trustee shall execute, acknowledge and deliver to
the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of the
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder.
(b) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) of this Section 9.11.
(c) 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 Nine.
SECTION 9.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation
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to which the Trustee shall be a party, or any corporation succeeding to all
or substantially all the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto. In case any Notes 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 Notes so authenticated with the same effect as if such
successor Trustee had itself authenticated such Notes.
SECTION 9.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
(a) Subject to Subsection (b) of this Section 9.13, if the Trustee
shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Company within four months prior to a default, as defined in
Subsection (c) of this Section 9.13, or subsequent to such a default, then,
unless and until such default shall be cured, the Trustee shall set apart and
hold in a special account for the benefit of the Trustee individually, the
Holders of the Notes and the holders of other indenture securities, as defined
in Subsection (c) of this Section 9.13:
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such four months' period and valid as
against the Company and its other creditors, except any such reduction
resulting from the receipt or disposition of any property described in
paragraph (2) of this Subsection, or from the exercise of any right of
set-off which the Trustee could have exercised if a petition in bankruptcy
had been filed by or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any claims as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such four months'
period, or an amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of the Company and
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
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(A) to retain for its own account (i) payments made on account of any
such claim by any Person (other than the Company) who is liable thereon,
and (ii) the proceeds of the bona fide sale of any such claim by the
Trustee to a third Person, and (iii) distributions made in cash, securities
or other property in respect of claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization pursuant to
the Federal Bankruptcy Act or applicable State law;
(B) to realize, for its own account, upon any property held by it as
security for any such claim, if such property was so held prior to the
beginning of such four months' period;
(C) to realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as security for
any such claim, if such claim was created after the beginning of such four
months' period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee shall sustain
the burden of proving that at the time such property was so received the
Trustee had no reasonable cause to believe that a default, as defined in
Subsection (c) of this Section 9.13, would occur within four months; or
(D) to receive payment on any claim referred to in paragraph (B) or
(C), against the release of any property held as security for such claim as
provided in paragraph (B) or (C), as the case may be, to the extent of the
fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such four months' period for property held as security at
the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned among
the Trustee, the Holders and the holders of other indenture securities in such
manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the
78
Federal Bankruptcy Act or applicable State law, the same percentage of their
respective claims, figured before crediting to the claim of the Trustee
anything on account of the receipt by it from the Company of the funds and
property in such special account and before crediting to the respective
claims of the Trustee and the Holders and the holders of other indenture
securities dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law, but after crediting thereon receipts
on account of the indebtedness represented by their respective claims from
all sources other than from such dividends and from the funds and property so
held in such special account. As used in this paragraph, with respect to any
claim, the term "dividends" shall include any distribution with respect to
such claim, in bankruptcy or receivership or proceedings for reorganization
pursuant to the Federal Bankruptcy Act or applicable State law, whether such
distribution is made in cash, securities or other property, but shall not
include any such distribution with respect to the secured portion, if any, of
such claim. The court in which such bankruptcy, receivership or proceedings
for reorganization is pending shall have jurisdiction (i) to apportion among
the Trustee, the Holders and the holders of other indenture securities, in
accordance with the provisions of this paragraph, the funds and property held
in such special account and proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the provisions of this
paragraph due consideration in determining the fairness of the distributions
to be made to the Trustee and the Holders and the holders of other indenture
securities with respect to their respective claims, in which event it shall
not be necessary to liquidate or to appraise the value of any securities or
other property held in such special account or as security for any such
claim, or to make a specific allocation of such distributions as between the
secured and unsecured portions of such claims, or otherwise to apply the
provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning of
such four months' period shall be subject to the provisions of this Subsection
as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such four months' period, it
shall be subject to the provisions of this Subsection if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim, which would have
given rise to the obligation to account, if such Trustee had continued as
Trustee, occurred after the beginning of such four months' period; and
79
(ii) such receipt of property or reduction of claim occurred within
four months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection (a) of
this Section 9.13 a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction or by this Indenture, for the purposes of preserving
any property which shall at any time be subject to the lien of this
Indenture or of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advances and of the circumstances surrounding
the making thereof is given to the Holders at the time and in the manner
provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction, as defined in Subsection (c) of this
Section 9.13;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve Act,
as amended, which is directly or indirectly a creditor of the Company; and
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within the
classification of self-liquidating paper, as defined in Subsection (c) of
this Section 9.13.
(c) For the purposes of this Section 9.13 only:
(1) the term "default" means any failure to make payment in full of
the principal of or interest on any of the Notes or upon the other
indenture securities when and as such principal or interest becomes due and
payable;
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(2) the term "other indenture securities" means securities upon which
the Company is an obligor outstanding under any other indenture (i) under
which the Trustee is also trustee, (ii) which contains provisions
substantially similar to the provisions of this Section 9.13, and (iii)
under which a default exists at the time of the apportionment of the funds
and property held in such special account;
(3) the term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" means any draft, ▇▇▇▇ of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing, negotiating
or incurring of the draft, ▇▇▇▇ of exchange, acceptance or obligation;
(5) the term "Company" means any obligor upon the Notes; and
(6) the term "Federal Bankruptcy Act" means the Bankruptcy Act or
Title 11 of the United States Code.
SECTION 9.14. APPOINTMENT OF AUTHENTICATING AGENT. At any time when
any of the Notes remain outstanding the Trustee may appoint an Authenticating
Agent or Agents with respect to the Notes which shall be authorized to act on
behalf of the Trustee to authenticate Notes issued upon exchange, registration
of transfer or partial redemption thereof or pursuant to Section 2.06, and Notes
so authenticated shall be entitled to the benefits of this Indenture and shall
be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Notes by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be
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acceptable to the Company and shall at all times be a corporation organized
and doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section 9.14, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section 9.14, such
Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section 9.14.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section 9.14, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 9.14, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all
Holders as their names and addresses appear in the Note register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section 9.14.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section 9.14, and the
Trustee shall be entitled to be
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reimbursed for such payments, subject to the provisions of Section 9.07.
If an appointment is made pursuant to this Section 9.07, the Notes may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
Trustee's Certificate of Authentication
This is one of the Notes referred to in the within-mentioned
Indenture.
BANK ONE, N.A., as Trustee
By___________________________________
As Authenticating Agent
By___________________________________
Authorized Officer
ARTICLE TEN
CONCERNING THE NOTEHOLDERS
SECTION 10.01. ACTION BY NOTEHOLDERS. (a) Whenever in this
Indenture it is provided that the Holders of a specified percentage in aggregate
principal amount of the Notes may take any action (the making of any demand or
request, or the giving of any notice, consents or waivers in lieu of a
Noteholders' meeting or the taking of any other action), the fact that at the
time of taking any such action the Holders of such specified percentage have
joined therein may be evidenced (a) by any instrument or any number of
instruments of similar tenor executed by such Noteholders in person or by agent
or proxy appointed in writing, or (b) by the record of such Noteholders voting
in favor thereof at any meeting of Noteholders duly called and held in
accordance with Article Eleven, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of Noteholders.
(b) Whenever in this Indenture it is provided that the Holders of a
specified percentage in aggregate principal amount of the Notes may take any
action, any party designated in writing by the Depositary, or by any party so
designated by the Depositary, as the owner of a beneficial interest of a
specified principal amount
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of any Global Note held by such Depositary shall be deemed to be a Holder of
Notes in such principal amount for such purpose.
SECTION 10.02. PROOF OF EXECUTION BY NOTEHOLDERS.
(a) Subject to Sections 9.01 and 11.05, proof of the execution of any
instruments by a Noteholder or the agent or proxy for such Noteholder shall be
sufficient if made in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in such manner as shall be satisfactory to
the Trustee. The ownership of Notes shall be proved by the Note register of the
Company or by a certificate of the Note registrar.
(b) The record of any Noteholders' meeting shall be proven in the
manner provided for in Section 11.06.
SECTION 10.03. WHO DEEMED ABSOLUTE OWNERS. Subject to Sections
2.04(f) and 10.01, the Company, the Trustee, any Authenticating Agent and Note
registrar may deem the person in whose name any Note shall be registered upon
the Note register of the Company to be, and may treat such person as, the
absolute owner of such Note (whether or not such Note shall be overdue) for the
purpose of receiving payment of or on account of the principal of and any
premium and interest on such Note, and for all other purposes; and neither the
Company nor the Trustee nor any Authenticating Agent nor any Note registrar
shall be affected by any notice to the contrary. All such payments shall be
valid and effectual to satisfy and discharge the liability upon any such Note to
the extent of the sum or sums so paid.
SECTION 10.04. COMPANY-OWNED NOTES DISREGARDED. In determining
whether the Holders of the requisite aggregate principal amount of Notes then
outstanding have concurred in any direction, consent or waiver under this
Indenture, Notes which are owned by the Company or any other obligor on the
Notes or by any person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company or any other obligor on
the Notes shall be disregarded and deemed not to be outstanding for the purpose
of any such determination; PROVIDED that for the purposes of determining whether
the Trustee shall be protected in relying on any such direction, consent or
waiver only Notes which the Trustee knows are so owned shall be so disregarded.
Notes so owned which have been pledged in good faith may be regarded as
outstanding for the purposes of this Section 10.04 if the pledgee shall
establish to the satisfaction of the Trustee the pledgee's right to vote such
Notes and that the pledgee is not a person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or any
such
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other obligor. In the case of a dispute as to such right, any decision by
the Trustee taken upon the advice of counsel shall be full protection to the
Trustee.
SECTION 10.05. REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND. At any
time prior to the taking of any action by the holders of the percentage in
aggregate principal amount of the Notes specified in this Indenture in
connection with such action, any Holder of a Note, which is shown by the
evidence to be included in the Notes the Holders of which have consented to such
action may, by filing written notice with the Trustee at the Corporate Trust
Office of the Trustee and upon proof of ownership as provided in Section
10.02(a), revoke such action so far as it concerns such Note. Except as
aforesaid any such action taken by the Holder of any Note shall be conclusive
and binding upon such Holder and upon all future Holders and owners of such Note
and of any Notes issued in exchange or substitution therefor, irrespective of
whether or not any notation thereof is made upon such Note or such other Notes.
SECTION 10.06. RECORD DATE FOR NOTEHOLDER ACTS. If the Company shall
solicit from the Noteholders any request, demand, authorization, direction,
notice, consent, waiver or other act, the Company may, at its option, by Board
Resolution, fix in advance a record date in compliance with TIA Section 3.16(c)
for the determination of Noteholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other act, but the Company
shall have no obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other act
may be given before or after the record date, but only the Noteholders of record
at the close of business on the record date shall be deemed to be Noteholders
for the purpose of determining whether Holders of the requisite aggregate
principal amount of Notes then outstanding have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other act, and for that purpose the outstanding Notes shall be
computed as of the record date; PROVIDED, HOWEVER, that no such authorization,
agreement or consent by the Noteholders on the record date shall be deemed
effective unless it shall become effective pursuant to this Indenture not later
than six months after the record date.
ARTICLE ELEVEN
NOTEHOLDERS' MEETING
SECTION 11.01. PURPOSES OF MEETINGS. A meeting of Noteholders may be
called at any time and from time to time pursuant to this Article Eleven for any
of the following purposes:
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(a) to give any notice to the Company or to the Trustee, or to
give any directions to the Trustee, or to consent to the waiving of
any default hereunder and its consequences, or to take any other
action authorized to be taken by Noteholders pursuant to
Article Eight;
(b) to remove the Trustee and nominate a successor Trustee
pursuant to Article Nine;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to Section 13.02; or
(d) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount of
the Notes, as the case may be, under any other provision of this
Indenture or under applicable law.
SECTION 11.02. CALL OF MEETINGS BY TRUSTEE. The Trustee may at any
time call a meeting of Holders of Notes to take any action specified in
Section 11.01, to be held at such time and at such place as the Trustee shall
determine. Notice of every such meeting of Noteholders, setting forth the time
and the place of such meeting and in general terms the action proposed to be
taken at such meeting, shall be given to Holders of the Notes that may be
affected by the action proposed to be taken at such meeting in the manner
provided in Section 15.10. Such notice shall be given not less than 20 nor more
than 90 days prior to the date fixed for such meeting.
SECTION 11.03. CALL OF MEETINGS BY COMPANY OR NOTEHOLDERS. In case
at any time the Company, pursuant to a Board Resolution, or the Holders of at
least 10% in aggregate principal amount of the Notes then outstanding, shall
have requested the Trustee to call a meeting of Noteholders, by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have mailed the notice of such meeting within
20 days after receipt of such request, then the Company or such Noteholders may
determine the time and the place for such meeting and may call such meeting to
take any action authorized in Section 11.01, by giving notice thereof as
provided in Section 11.02.
SECTION 11.04. QUALIFICATIONS FOR VOTING. To be entitled to vote at
any meetings of Noteholders a Person shall (a) be a Holder of one or more Notes
affected by the action proposed to be taken or (b) be a Person appointed by an
instrument in writing as proxy by a Holder of one or more such Notes. The only
Persons who shall be entitled to be present or to speak at any
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meeting of Noteholders shall be the Persons entitled to vote at such meeting
and their counsel and any representatives of the Trustee and its counsel and
any representatives of the Company and its counsel.
SECTION 11.05. REGULATIONS.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Noteholders, in regard to proof of the holding of Notes and of the
appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by the Noteholders as provided in Section 11.03, in which case
the Company or Noteholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by the Holders of a majority in
aggregate principal amount of the Notes present in person or by proxy at the
meeting.
(c) Subject to Section 10.04, at any meeting each Noteholder or proxy
shall be entitled to one vote for each $1,000 principal amount of Notes held or
represented by such Noteholder; PROVIDED, HOWEVER, that no vote shall be cast or
counted at any meeting in respect of any Note challenged as not outstanding and
ruled by the chairman of the meeting to be not outstanding. The chairman of the
meeting shall have no right to vote other than by virtue of Notes held by such
chairman or instruments in writing as aforesaid duly designating such chairman
as the person to vote on behalf of other Noteholders. At any meeting of
Noteholders duly called pursuant to Section 11.02 or 11.03, the presence of
persons holding or representing Notes in an aggregate principal amount
sufficient to take action on any business for the transaction for which such
meeting was called shall constitute a quorum. Any meeting of Noteholders duly
called pursuant to Section 11.02 or 11.03 may be adjourned from time to time by
the Holders of a majority in aggregate principal amount of the Notes present in
person or by proxy at the meeting, whether or not constituting a quorum, and the
meeting may be held as so adjourned without further notice.
SECTION 11.06. VOTING. The vote upon any resolution submitted to any
meeting of Noteholders shall be by written ballots on which shall be subscribed
the signatures of the Holders of Notes
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or of their representatives by proxy and the principal amount of Notes held
or represented by them. The permanent chairman of the meeting shall appoint
two inspectors of votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with the secretary of the
meeting their verified written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of
Noteholders shall be prepared by the secretary of the meeting and there shall
be attached to said record the original reports of the inspectors of votes on
any vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 11.02. The record
shall show the principal amount of the Notes voting in favor of or against
any resolution. The record shall be signed and verified by the affidavits of
the permanent chairman and secretary of the meeting and one of the duplicates
shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
SECTION 11.07. RIGHT OF TRUSTEE OR NOTEHOLDERS NOT DELAYED. Nothing
in this Article Eleven contained shall be deemed or construed to authorize or
permit, by reason of any call of a meeting of Noteholders or any rights
expressly or impliedly conferred hereunder to make such call, any hindrance or
delay in the exercise of any right or rights conferred upon or reserved to the
Trustee or to the Holders of Notes under any of the provisions of this Indenture
or of the Notes.
ARTICLE TWELVE
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 12.01. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other corporation or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person unless:
(1) the corporation formed by such consolidation or into which
the Company is merged (the "successor corporation") 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 organized and existing under the laws of the
United States of America or any State or the District of Columbia, and
shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the
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Trustee, in form satisfactory to the Trustee, the due and punctual
payment of the principal of (and premium, if any) and interest on all
Notes and the performance of every covenant of this Indenture on the
part of the Company to be performed or observed;
(2) immediately after giving effect to such consolidation,
merger, conveyance, transfer or lease, no Event of Default, and no
event which, after notice or lapse of time, or both, would become an
Event of Default, shall have occurred and be continuing;
(3) if, as a result of such consolidation, merger, conveyance,
transfer or lease, properties or assets of the Company would become subject
to a mortgage, pledge, lien, security interest or other encumbrance which
would not otherwise be permitted by this Indenture without making effective
provision whereby the Notes then outstanding and any other indebtedness of
the Company then entitled thereto will be equally and ratably secured with
any and all indebtedness and obligations secured thereby, the Company or
the successor corporation or Person, as the case may be, will take such
action as will be necessary effectively to secure all Notes equally and
ratably with (or prior to) all indebtedness secured thereby; 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 such
supplemental indenture comply with this Article Twelve and that all
conditions precedent herein provided for relating to such
consolidation, merger, conveyance or transfer have been complied with.
SECTION 12.02. SUCCESSOR CORPORATION SUBSTITUTED. Upon any
consolidation or merger, or any conveyance, transfer or lease as an entirety in
accordance with Section 12.01, the successor corporation 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 corporation had been named as the Company
herein; PROVIDED, HOWEVER, that no such conveyance or transfer shall have the
effect of releasing the Person named as the "Company" in the first paragraph of
this Indenture or any successor corporation which shall theretofore have become
such in the manner prescribed in this Article Twelve from its liability as
obligor and maker on any of the Notes.
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ARTICLE THIRTEEN
SUPPLEMENTAL INDENTURES
SECTION 13.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
NOTEHOLDERS.
(a) The Company, when authorized by Board Resolution, and the Trustee
may at any time and from time to time enter into an indenture or indentures
supplemental hereto for one or more of the following purposes:
(1) to make such provision in regard to matters or questions
arising under this Indenture as may be necessary or desirable and not
inconsistent with this Indenture or for the purpose of supplying any
omission, curing any ambiguity, or curing, correcting or supplementing
any defective or inconsistent provision; PROVIDED that such provision
shall not adversely affect the interests of Holders of outstanding
Notes created prior to the execution of such supplemental indenture in
any material respect;
(2) to change or eliminate any of the provisions of this Indenture;
PROVIDED that any such change or elimination shall become effective only
when there is no Note outstanding created prior to the execution of such
supplemental indenture which is entitled to the benefit of such provision;
(3) to secure the Notes;
(4) to establish the form of Notes as permitted by Section 2.01 or to
establish or reflect any terms of any Note determined pursuant to Section
2.05;
(5) to evidence the succession of another corporation to the Company,
and the assumption by any such successor of the covenants of the Company
herein and in the Notes;
(6) to grant to or confer upon the Trustee for the benefit of the
Holders any additional rights, remedies, powers or authority;
(7) to permit the Trustee to comply with any duties imposed upon it by
law;
(8) to specify further the duties and responsibilities of, and to
define further the relationships among, the Trustee, any Authenticating
Agent and any paying agent;
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(9) to add to the covenants of the Company for the benefit of the
Holders of all or any Notes (and if such covenants are to be for the
benefit of less than all Notes, stating that such covenants are expressly
being included solely for the benefit of such Notes) or to surrender a
right or power conferred on the Company herein; and
(10) to add any additional Events of Default (and if such Events of
Default are to be applicable to less than all Notes, stating that such
Events of Default are expressly being included for the benefit of such
Notes).
(b) The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer and assignment of any property thereunder, but the Trustee
shall not be obligated to enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
(c) Any supplemental indenture authorized by this Section 13.01 may
be executed by the Company and the Trustee without the consent of the Holders of
any of the Notes then outstanding, notwithstanding any of the provisions of
Section 13.02.
SECTION 13.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF NOTEHOLDERS.
(a) With the consent (evidenced as provided in Section 10.01) of the
Holders of not less than a majority in aggregate principal amount of the Notes
then outstanding that would be affected by the particular supplemental
indenture, the Company, when authorized by Board Resolution, and the Trustee may
from time to time and at any time 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 any
supplemental indenture or of modifying in any manner the rights of the
Noteholders; PROVIDED, HOWEVER, that no such supplemental indenture shall:
(1) change the Stated Maturity of any Note; or reduce the rate
of interest on any Note; or change the method of calculating interest,
or any term used in the calculation of interest, or the period for
which interest is payable, on any Floating Rate Note; or reduce the
principal amount of any Note or any premium thereon; reduce the amount
of the principal of an Original Issue Discount Note that would be due
and payable upon a
91
declaration of acceleration of the Maturity thereof, or adversely affect
the right of repayment or renewal, if any, at the option of the Holder;
or change the coin or currency in which the principal of any Note or any
premium or interest thereon is payable; or change the date on which any
Note may be redeemed; or adversely affect the rights of any Noteholder
to institute suit for the enforcement of any payment of principal of or
any premium or interest on any Note; in each case without the consent of
the Holder of each Note then outstanding that would be affected thereby
(for purposes of this Section 13.02 (a)(1) only, the term "Note" shall
include Notes for which an offer to purchase has been accepted by the
Company); or
(2) reduce the aforesaid percentage of Notes, the Holders of
which are required to consent to any such supplemental indenture, or
the percentage in aggregate principal amount of the Notes then
outstanding the consent of the Holders of which is required for any
waiver of certain past defaults or Events of Default hereunder or the
consequences thereof, in each case without the consent of the Holders
of all of the Notes then outstanding.
(b) Upon the request of the Company, accompanied by a copy of the
Board Resolution authorizing the execution of any such supplemental indenture,
and upon the filing with the Trustee of evidence of the consent of Noteholders
as aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
(c) It shall not be necessary for the consent of the Holders of Notes
under this Section 13.02 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall approve
the substance thereof.
(d) Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to this Section 13.02, the Company shall
give notice in the manner provided in Section 15.10, setting forth in general
terms the substance of such supplemental indenture, to all Noteholders. Any
failure of the Company to give such notice, or any defect therein shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
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SECTION 13.03. COMPLIANCE WITH TRUST INDENTURE ACT; EFFECT OF
SUPPLEMENTAL INDENTURES. Any supplemental indenture executed pursuant to this
Article Thirteen shall comply with the TIA. Upon the execution of any
supplemental indenture pursuant to this Article Thirteen, this Indenture shall
be and be deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Company and the Noteholders shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 13.04. NOTATION ON NOTES. Notes authenticated and delivered
after the execution of any supplemental indenture pursuant to this
Article Thirteen may bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture. If the Company or the
Trustee shall so determine, new Notes so modified as to conform in the opinion
of the Trustee and the Board of Directors to any modification of this Indenture
contained in any such supplemental indenture may be prepared and executed by the
Company, authenticated by the Trustee and delivered in exchange for the Notes
then outstanding.
SECTION 13.05. EVIDENCE OF COMPLIANCE OF SUPPLEMENTAL INDENTURE TO BE
FURNISHED TRUSTEE. The Trustee, subject to Section 9.01, may receive an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant hereto complies with the requirements
of this Article Thirteen.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 14.01. INDENTURE AND NOTES SOLELY CORPORATE OBLIGATIONS. No
recourse for the payment of the principal of or any premium or interest on any
Note, or for any claim based thereon or otherwise in respect thereof, and no
recourse under or upon any obligation, covenant or agreement of the Company,
contained in this Indenture or in any supplemental indenture, or in any Note, or
because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or any successor corporation, either directly
or through the Company or any successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
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penalty or otherwise; it being expressly understood that all such liability is
hereby expressly waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issue of the Notes.
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
SECTION 15.01. PROVISIONS BINDING ON COMPANY'S SUCCESSORS. All the
covenants, stipulations, promises and agreements made by the Company in this
Indenture shall bind its successors and assigns whether so expressed or not.
SECTION 15.02. OFFICIAL ACTS BY SUCCESSOR CORPORATION. Any act or
proceeding by any provision of this Indenture authorized or required to be done
or performed by any board, committee or officer of the Company shall and may be
done and performed with like force and effect by the like board, committee or
officer of any corporation that shall at the time be the lawful successor of the
Company.
SECTION 15.03. ADDRESSES FOR NOTICES, ETC. Any notice or demand
which by any provision of this Indenture is required or permitted to be given or
served by the Trustee or by the Noteholders on the Company may be given or
served by being deposited postage prepaid in a post office letter box addressed
(until another address is filed by the Company with the Trustee) to Madison Gas
and Electric Company, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, to the
attention of the Corporate Secretary. Any notice, direction, request or demand
by any Noteholder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made in writing at the
Corporate Trust Office of the Trustee.
SECTION 15.04. GOVERNING LAW. This Indenture and each Note shall be
deemed to be a contract made under the laws of the State of New York, and for
all purposes shall be construed in accordance with the laws of said State.
SECTION 15.05. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
(a) Upon any application or demand by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee
an Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an
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Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
(b) Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (1) a statement that each Person
making such certificate or opinion has read such covenant or condition and the
definitions relating thereto; (2) a brief statement as to the nature and scope
of the examination or investigation upon which the statements or opinion
contained in such certificate or opinion are based; (3) a statement that, in the
opinion of each such Person, such Person has made such examination or
investigation as is necessary to enable such Person to express an informed
opinion as to whether or not such covenant or condition has been complied with;
and (4) a statement as to whether or not, in the opinion of each such Person,
such condition or covenant has been complied with.
(c) In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
(d) Any certificate or opinion of an officer of the Company 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 representations
with respect to the matters upon which such certificate or opinion is based are
erroneous. Any such certificate 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 matters is in the possession of the
Company, unless such person knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
(e) Any certificate, statement or opinion of any officer of the
Company, or of counsel, may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an accountant or
firm of accountants, unless such officer or counsel, as the case may be, knows
that the certificate or opinion or representations with respect to the
accounting matters upon which the certificate, statement or opinion of such
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officer or counsel may be based as aforesaid are erroneous, or in the exercise
of reasonable care should know that the same are erroneous. Any certificate or
opinion of any firm of independent public accountants filed with the Trustee
shall contain a statement that such firm is independent.
(f) 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 instrument.
SECTION 15.06. BUSINESS DAYS. Unless otherwise provided herein, in
any case where the date of Maturity of the principal of or any premium or
interest on any Note or the Redemption Date of any Note is not a Business Day,
then payment of such principal or any premium or interest need not be made on
such date but may be made on the next succeeding Business Day with the same
force and effect as if made on the date of Maturity or the Redemption Date, and,
in the case of payment, no interest shall accrue for the period from and after
such date.
SECTION 15.07. TRUST INDENTURE ACT TO CONTROL. If and to the extent
that any provision of this Indenture limits, qualifies or conflicts with
another provision included in this Indenture which is required to be included in
this Indenture by any of Sections 310 to 317, inclusive, of the TIA, such
required provision shall control.
SECTION 15.08. TABLE OF CONTENTS, HEADINGS, ETC. The table of
contents and the titles and headings of the articles and sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
SECTION 15.09. EXECUTION IN COUNTERPARTS. This Indenture may be
executed in any number of counterparts, each of which shall be an original, but
such counterparts shall together constitute but one and the same instrument.
SECTION 15.10. MANNER OF MAILING NOTICE TO NOTEHOLDERS. Any notice
or demand which by any provision of this Indenture is required or permitted to
be given or served by the Trustee or the Company to or on the Holders of Notes,
as the case may be, shall be given or served by first-class mail, postage
prepaid, addressed to the Holders of such Notes at their last addresses as the
same appear on the Note register referred to in Section 2.06, and any such
notice shall be deemed to be given or served by being deposited in a post office
letter box in the form and manner provided in this Section 15.10.
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IN WITNESS WHEREOF, Madison Gas and Electric Company has caused this
Indenture to be signed and acknowledged by its Chairman, President and Chief
Executive Officer and its Senior Vice President - Administration and Corporate
Secretary, and Bank One, N.A. has caused this Indenture to be signed and
acknowledged by one of its authorized signatories and its corporate seal to be
affixed hereunto, and the same to be attested by one of its _________, as of
the day and year first written above.
MADISON GAS AND ELECTRIC COMPANY
By
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chairman, President and
Chief Executive Officer
By
-----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President - Administration and
Corporate Secretary
BANK ONE, N.A., as Trustee
[Seal] By
-------------------------------
Name:
Title:
Attest:
------------------------------
Name:
Title:
-▇▇-
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ )
) ss:
COUNTY OF DANE )
I, ________________________, a Notary Public in and for said County
and State aforesaid, do hereby certify that ______________________ of Madison
Gas and Electric Company, a Wisconsin corporation, and _______________ of said
corporation, who are personally known to me to be the same persons whose names
are subscribed to the foregoing instrument and who are both personally known
to me to be ______________________________ and Secretary of said corporation,
respectively, appeared before me this day in person and severally
acknowledged that they this day signed and delivered the said instrument as
their free and voluntary act as such _________ and Secretary, respectively,
of said corporation and as the free and voluntary act of said corporation,
for the uses and purposes therein set forth, and that the said instrument was
signed and delivered on behalf of said corporation by authority of its Board
of Directors, and acknowledged said instrument to be the free and voluntary
act of said corporation.
GIVEN under my hand and notarial seal this _______ day of _________,
1998.
----------------------
Notary Public
My commission expires:
-98-
STATE OF _________)
) ss:
COUNTY OF ________)
I, _______________________, a Notary Public in and for said
County and State aforesaid, do hereby certify that
____________________ of Bank One, N.A., a national banking
association organized and existing under the laws of the United States of
America, and ____________ of said corporation, who are personally known
to me to be the same persons whose names are subscribed to the foregoing
instrument and who are both personally known to me to be an
______________ and _________________ of said corporation, appeared
before me this day in person and severally acknowledged that they this day
signed, sealed and delivered the said instrument as their free and voluntary
act as such an _____________ and ________________, respectively, of
said corporation, and as the free and voluntary act of said corporation, for
the uses and purposes therein set forth, and that the seal affixed to said
instrument is the corporate seal of said corporation and that the said
instrument was signed, sealed and delivered on behalf of said corporation by
authority of its By-laws, and acknowledged said instrument to be the free and
voluntary act of said corporation.
GIVEN under my hand and notarial seal this _____ day of ______, 1998.
--------------------------------------
Notary Public
My commission expires:
-99-
EXHIBIT A
Global Fixed Rate Note
REGISTERED REGISTERED
NO.
MADISON GAS AND ELECTRIC COMPANY
Fixed Rate
Medium-Term Note
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the Company
or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co., or in such other
name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
The following summary of terms is subject to the provisions set forth
below:
CUSIP: EXTENSION PERIOD:
ORIGINAL ISSUE DATE(S): NUMBER OF EXTENSION PERIODS:
PRINCIPAL AMOUNT: FINAL MATURITY DATE:
MATURITY DATE: OPTIONAL INTEREST RESET: / / Yes / / No
INTEREST RATE: OPTIONAL INTEREST RESET
DATES:
INTEREST PAYMENT DATES:
ORIGINAL ISSUE DISCOUNT
RECORD DATES: NOTE: / / Yes / / No
OPTIONAL REDEMPTION: / / Yes / / No ISSUE PRICE (percentage of principal):
INITIAL REDEMPTION DATE: YIELD TO MATURITY:
AMORTIZING NOTE: / / Yes / / No RENEWABLE AT OPTION OF
HOLDER: / / Yes / / No
OPTION TO ELECT
REPAYMENT: / / Yes / / No ANNEX ATTACHED (and
incorporated by reference
OPTIONAL EXTENSION OF herein): / / Yes / / No
ORIGINAL MATURITY DATE: / / Yes / / No
Madison Gas and Electric Company, a Wisconsin corporation (herein
called the "Company", which term includes any successor Person under the
Indenture referred to on the reverse hereof), for value received, hereby
promises to pay to
or registered assigns the principal sum specified above, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts, on the Maturity date
specified above and to pay interest thereon, in such coin or currency, from
and including the Original Issue Date (or if this Global Note has two or more
Original Issue Dates, interest shall, beginning on each such Original Issue
Date, begin to accrue for that part of the principal amount to which such
Original Issue Date is applicable) specified above, or from and including the
most recent Interest Payment Date specified above to which interest has been
paid or duly provided for, as the case may be. Interest shall be paid in
arrears semiannually on each Interest Payment Date in each year commencing on
(a) the first such Interest Payment Date next succeeding the earliest
Original Issue Date or Dates, or (b) if such Original Issue Date is after a
Record Date and prior to the first Interest Payment Date, on the second
Interest Payment Date, at the per annum Interest Rate set forth above until
Maturity and the principal hereof is paid or made available for payment. The
interest so payable and punctually paid or duly provided for on any Interest
Payment Date will, as provided in the Indenture, be paid to the Person in
whose name this Note is registered at the close of business on the Record
Date specified above next preceding such Interest Payment Date; PROVIDED,
HOWEVER, that if an Original Issue Date falls between a Record Date and the
next Interest Payment Date, the first payment of interest with respect to
such Original Issue Date will be paid on the second Interest Payment Date
subsequent to such Original Issue Date to the Person in whose name this Note
is registered at the close of business on the Record Date for such second
Interest Payment Date; and PROVIDED, FURTHER, that interest payable on the
Maturity date or, if applicable, upon redemption, shall be payable to the
Person to whom principal shall be payable. Except as otherwise provided in
the Indenture, any such interest not so punctually paid or duly provided for
will forthwith cease to be payable to the Holder on such Record Date and
shall be paid to the Person in whose name this Note is registered at the
close of business on a Record Date for the payment of such defaulted interest
to be fixed by the Company, notice whereof shall be given to Noteholders not
less than fifteen days prior to such Record Date. Payment of the principal
of and any premium and interest on this Note shall be made on or before 10:30
A.M., New York City time or such other time as shall be agreed upon between
the Trustee and the Depositary, of the day on which such payment is due, by
wire transfer into the account specified by the Depositary; PROVIDED,
HOWEVER, that as a condition
A-2
to the payment at the Maturity date of any part of the principal and any
applicable premium of this Global Note, the Depositary shall surrender, or
cause to be surrendered, this Global Note to the Trustee. The Company will
pay any administrative costs imposed by banks in connection with making
payments by wire transfer, but not any tax, assessment or governmental charge
imposed on the Holder of this Note.
Under certain circumstances, this Global Note is exchangeable in whole
or from time to time in part for a definitive individual Note or Notes, with the
same Original Issue Date or Dates, Maturity date, Interest Rate and redemption
and other provisions as provided herein or in the Indenture.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS GLOBAL NOTE
SET FORTH IN FULL ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL
PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH IN FULL AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof, directly or through an
Authenticating Agent, by manual signature of an authorized signatory, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
MADISON GAS AND ELECTRIC COMPANY
By
President
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION By
This is one of the Notes referred Secretary
to in the within-mentioned Indenture.
BANK ONE, N.A., as Trustee
By
----------------------------------
Authorized Signatory
A-3
MADISON GAS AND ELECTRIC COMPANY
MEDIUM-TERM NOTE
This Global Note is one of, and a global security which represents
Notes which are part of, the duly authorized Notes of the Company (herein called
the "Notes"), issued and to be issued under an Indenture dated as of __________,
1998 (herein called the "Indenture") between the Company and Bank One, N.A., as
Trustee (herein called the "Trustee", which term includes any successor Trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Noteholders, and of the terms upon which the Notes are, and are to be,
authenticated and delivered.
Each Note shall be dated the date of its authentication by the
Trustee. Each Note shall also bear an Original Issue Date or Dates which with
respect to this Global Note (or any portion thereof) shall mean the date or
dates of the original issue of the Notes represented hereby as specified on the
face hereof, and such Original Issue Date or Dates shall remain the same for all
Notes subsequently issued upon transfer, exchange or substitution of such
original Note (or such subsequently issued Notes) regardless of their dates of
authentication. The Notes may bear different dates, mature at different times,
bear interest at different rates, be subject to different redemption provisions,
if any, and may otherwise vary, all as provided in the Indenture.
Interest on this Note will be payable on the Interest Payment Date or
Interest Payment Dates as specified on the face hereof and, in either case, at
Maturity. Unless otherwise specified on the face hereof, payments on this Note
with respect to any particular Interest Payment Date or the Maturity date will
include interest accrued from and including the applicable Original Issue Date,
or from and including the most recent Interest Payment Date to which interest
has been paid or duly provided for, to but excluding the particular Interest
Payment Date or the Maturity date. Interest on this Note will be computed and
paid on the basis of a 360-day year of twelve 30-day months.
Unless otherwise specified on the face hereof, if this Note is an
Amortizing Note, payments with respect to this Note will be applied first to
interest due and payable hereon and then to the reduction of the unpaid
principal amount hereof. If this Note is an Amortizing Note, a table setting
forth the schedule of dates and amounts of payments of principal of and interest
on this Note or the formula for the amortization of principal and/or interest is
set forth in an annex attached to this Note.
A-4
All percentages resulting from any calculation with respect to this
Note will be rounded, if necessary, to the nearest one hundred-thousandth of a
percentage point (with five one-millionths of a percentage point rounded upward)
and all dollar amounts used in or resulting from any such calculation with
respect to this Note will be rounded to the nearest cent (with one-half cent
being rounded upward).
"Business Day" means, unless otherwise specified on the face hereof,
any Monday, Tuesday, Wednesday, Thursday or Friday that in The City of New York
is not a day on which banking institutions are authorized or obligated by law,
regulation or executive order to close. If an Interest Payment Date or Maturity
for this Note falls on a day that is not a Business Day, payment of principal,
premium, if any, and interest to be made on such day with respect to this Note
will be made on the next day that is a Business Day with the same force and
effect as if made on the due date, and no additional interest will be payable on
the date of payment for the period from and after the due date as a result of
such delayed payment.
This Note will be redeemable at the option of the Company prior to its
Stated Maturity only if an Initial Redemption Date is specified on the face
hereof. If so specified, this Note will be subject to redemption at the option
of the Company on any date on and after such Initial Redemption Date in whole or
from time to time in part in increments of $1,000 or integral multiples thereof,
at the redemption prices specified in an annex attached to this Note, plus
accrued and unpaid interest to but excluding the date of redemption, but
payments due with respect to this Note prior to the date of redemption will be
payable to the Holder of this Note of record at the close of business on the
relevant Record Date specified on the face hereof, all as provided in the
Indenture. The Company may exercise such option by causing the Trustee to mail
a notice of such redemption, at least 30 but not more than 60 calendar days
prior to the date of redemption, in accordance with the provisions of the
Indenture. In the event of redemption of this Note in part only, this Note will
be cancelled and a new Note or Notes representing the unredeemed portion hereof
will be issued in the name of the Holder hereof. This Note is not subject to a
sinking fund unless otherwise specified in an annex attached hereto.
If so specified on the face of this Note, (i) this Note shall be
subject to repayment, in whole or in part, prior to Stated Maturity at the
option of the Holder on a certain date or dates and at a certain price or
prices, plus accrued and unpaid interest to but excluding the date of payment;
(ii) the Stated Maturity of this Note may be extended at the option of the
Company for one or more
A-5
Extension Periods of from one to five years, as specified on the face hereof,
up to but not beyond the Final Maturity Date specified on the face hereof;
(iii) the interest rate specified on the face hereof may be reset by the
Company in accordance with a formula or otherwise on the Optional Interest
Reset Date or Dates specified on the face hereof; and/or (iv) this Note shall
be renewable at the option of the Holder, in each case in accordance with the
provisions of the Indenture applicable thereto and/or as specified in an
annex attached to this Note.
Notwithstanding anything herein to the contrary, if this Note is an
Original Issue Discount Note as specified on the face hereof, the amount payable
in the event the principal amount hereof is declared to be due and payable
immediately by reason of an Event of Default or in the event of redemption or
repayment hereof prior to the Stated Maturity hereof, in lieu of the principal
amount due at the Stated Maturity hereof, shall be the Amortized Face Amount of
this Note as of the date of declaration, redemption or repayment, as the case
may be. The "Amortized Face Amount" of this Note shall be the amount equal to
the principal amount of this Note multiplied by the Issue Price specified on the
face hereof plus (b) the portion of the difference between the dollar amount
thus obtained and the principal amount hereof that has accreted at the Yield to
Maturity specified on the face hereof (computed in accordance with generally
accepted United States bond yield computation principles) to such date of
declaration, redemption or repayment but in no event shall the Amortized Face
Amount of this Note exceed the principal amount stated on the face hereof.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Noteholders to be affected under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of not
less than a majority in aggregate principal amount of the Notes then outstanding
that would be affected thereby. The Indenture also contains provisions
permitting the Holders of not less than a majority in aggregate principal amount
of the Notes then outstanding, on behalf of the Holders of all Notes, to waive
compliance by the Company with certain covenants in the Indenture. The
Indenture also provides that the Holders of not less than a majority in
aggregate principal amount of the Notes then outstanding may waive certain past
defaults and their consequences on behalf of the Holders of all Notes. Any such
consent or waiver by the Holder of this Global Note (if not timely revoked in
accordance with the Indenture) shall be conclusive and binding upon such Holder
and upon all future Holders of this Global Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu
A-6
hereof, whether or not notation of such consent or waiver is made upon this
Global Note or such Note.
As set forth in, and subject to, the provisions of the Indenture, no
Holder of any Notes will have any right to institute any proceeding with respect
to the Indenture or for any remedy thereunder, unless such Holder shall have
previously given to the Trustee written notice of a continuing default with
respect to the Notes, the Holders of not less than a majority in aggregate
principal amount of the Notes then outstanding shall have made written request,
and offered reasonable indemnity, to the Trustee to institute such proceeding as
Trustee, and the Trustee shall have failed to institute such proceeding within
60 days; PROVIDED, HOWEVER, that such limitations do not apply to a suit
instituted by the Holder hereof for the enforcement of payment of the principal
of and any premium or interest on this Global Note on or after the respective
due dates expressed herein.
THIS NOTE IS A GLOBAL NOTE REGISTERED IN THE NAME OF THE DEPOSITARY OR
A NOMINEE THEREOF AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
THE INDIVIDUAL NOTES REPRESENTED HEREBY, THIS GLOBAL NOTE MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY
OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE
OF SUCH SUCCESSOR DEPOSITARY.
If at any time the Depositary for this Global Note notifies the
Company that it is unwilling or unable to continue as Depositary for this Global
Note or if at any time the Depositary for this Global Note shall no longer be
registered as a clearing agency under the Securities Exchange Act of 1934, as
amended, or any successor statute or regulation, the Company may appoint a
successor Depositary with respect to this Global Note. If (A) a successor
Depositary for this Global Note is not appointed by the Company within 90 days
after the Company receives such notice or becomes aware of such ineligibility,
or (B) any Notes are represented by this Global Note at a time when an Event of
Default with respect to the Notes shall have occurred and be continuing, then in
each case the Company's election to issue this Note in global form shall no
longer be effective with respect to this Global Note and the Company will
execute, and the Trustee, upon receipt of a Company Order for the authentication
and delivery of individual Notes in exchange for this Global Note, shall
authenticate and make available for delivery, individual Notes of like tenor and
terms in definitive form in an aggregate principal amount equal to the principal
amount of this Global Note in exchange for this Global Note.
A-7
If agreed by the Company and the Depositary with respect to Notes
issued in the form of this Global Note, the Depositary for such Global Note
shall surrender this Global Note in exchange in whole or in part for individual
Notes of like tenor and terms in definitive form on such terms as are acceptable
to the Company and such Depositary. Thereupon the Company shall execute, and
the Trustee shall authenticate and make available for delivery, without a
service charge, (1) to each Person specified by such Depositary, a new Note or
Notes of like tenor and terms, and of any authorized denominations as requested
by such Person in aggregate principal amount equal to and in exchange for the
beneficial interest of such Person in this Global Note, and (2) to such
Depositary a new Global Note of like tenor and terms and in a denomination equal
to the difference, if any, between the principal amount of this Global Note and
the aggregate principal amount of Notes delivered to Holders thereof.
Under certain circumstances specified in the Indenture, the Depositary
may be required to surrender any two or more Global Notes which have identical
terms (but which may have differing Original Issue Dates) to the Trustee, and
the Company shall execute and the Trustee shall authenticate and deliver to, or
at the direction of, the Depositary a Global Note in principal amount equal to
the aggregate principal amount of, and with all terms identical to, the Global
Notes surrendered to the Trustee, and such new Global Note shall indicate each
applicable Original Issue Date and the principal amount applicable to each such
Original Issue Date.
No reference herein to the Indenture and no provision of this Global
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and any premium and
interest on this Global Note at the times, places and rates, and in the coin or
currency, herein prescribed.
The Indenture contains provisions for the satisfaction and discharge
of the Indenture upon compliance by the Company with certain conditions
specified therein, which provisions apply to this Note.
Prior to due presentment of this Global Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Global Note is registered as the owner
hereof for all purposes, whether or not this Global Note is overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
A-8
The Indenture and the Notes shall be governed by, and construed in
accordance with, the laws of the State of New York.
All terms used in the Note which are defined in the Indenture but are
not defined in this Note shall have the meanings assigned to them in the
Indenture.
A-9
OPTION TO ELECT REPAYMENT
[To be completed only if this Note is repayable at the option
of the Holder and the Holder elects to exercise such rights]
The undersigned owner of this Note hereby irrevocably elects to have
the Company repay (i) the principal amount of this Note or portion hereof below
designated at the applicable optional repayment price indicated on an annex
attached hereto plus accrued and unpaid interest to but excluding the date of
repayment, if this election is being made pursuant to the option referred to
under "Option to Elect Repayment" on the face hereof, or (ii) 100% of the
principal amount of this Note plus accrued and unpaid interest to but excluding
the Optional Interest Reset Date, if this election is being made following an
exercise by the Company of the option referred to under "Optional Interest
Reset" on the face hereof, or to but excluding the Pre-Exercise Stated Maturity
Date (as defined in the Indenture), if this election is being made following an
exercise by the Company of the option referred to under "Optional Extension of
Original Maturity Date" on the face hereof. If a portion of this Note is not
being repaid pursuant to clause (i) above, specify the principal amount to be
repaid and the denomination or denominations (which will be $1,000 or an
integral multiple thereof) of the Note or Notes to be issued to the Holder for
the portion of this Note not being repaid (in the absence of any specification,
one such Note will be issued for the portion not being repaid):
Dated:
------------------------------ ------------------------------------
Signature
Sign exactly as name appears on the
front of this Note
Principal amount to be repaid if Indicate address where check is
amount to be repaid is pursuant to be sent:
to clause (i) above and is less than
the entire principal amount of this ------------------------------------
Note (principal amount remaining
must be an authorized denomination) ------------------------------------
$
-----------------------------------
(Which must be an integral multiple
of $1,000)
Denomination or denominations of the SOCIAL SECURITY OR OTHER TAXPAYER
Note or Notes to be issued for the ID NUMBER:
portion of this Note not being
repaid pursuant to clause (i) above: ----------------------------------
------------------------------------
------------------------------------
A-10
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIT GIFT
MIN ACT - Custodian
----- ------
TEN ENT - as tenants by the (Cust) (Minor)
entireties Under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with
right of survivorship and
not as tenants in common ---------------------
State
Additional abbreviations may also be used though not in the above
list.
---------------------
FOR VALUE RECEIVED the undersigned hereby sell(s)
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
------------------------
------------------------
-------------------------------------------------------------------------------
Please print or typewrite name and address
including postal zip code of assignee
------------------------------------------------------------------------------
the within note and all rights thereunder, hereby irrevocably constituting and
appointing
--------------------------------------------------------------------
attorney to transfer said note on the books of the
-------------------
Company, with full power of substitution in the premises.
Dated:
---------------------------
------------------------------------------------
NOTICE: The signature(s) to this assignment must
correspond with the name(s) as written upon the
face of the within instrument in every particular,
without alteration or enlargement or any change
whatever. The signature(s) must be guaranteed by
an "eligible guarantor institution" that is a
member or participant in the Securities Transfer
Agents Medallion Program, the Stock Exchange
Medallion Program or the New York Stock Exchange,
Inc. Medallion Program.
A-11
EXHIBIT B
Fixed Rate Note
REGISTERED REGISTERED
NO.
MADISON GAS AND ELECTRIC COMPANY
Fixed Rate
Medium-Term Note
The following summary of terms is subject to the provisions set forth
below:
CUSIP: EXTENSION PERIOD:
ORIGINAL ISSUE DATE: NUMBER OF EXTENSION PERIODS:
PRINCIPAL AMOUNT: FINAL MATURITY DATE:
MATURITY DATE: OPTIONAL INTEREST RESET: Yes No
INTEREST RATE: OPTIONAL INTEREST RESET
DATES:
INTEREST PAYMENT DATES:
ORIGINAL ISSUE DISCOUNT
RECORD DATES: NOTE: Yes No
OPTIONAL REDEMPTION: Yes No ISSUE PRICE (percentage of
principal):
INITIAL REDEMPTION DATE:
YIELD TO MATURITY:
AMORTIZING NOTE: Yes No
RENEWABLE AT OPTION OF
OPTION TO ELECT HOLDER: Yes No
REPAYMENT: Yes No
ANNEX ATTACHED (and
OPTIONAL EXTENSION OF incorporated by
ORIGINAL MATURITY DATE: Yes No reference herein): Yes No
Madison Gas and Electric Company, a Wisconsin corporation (herein
called the "Company", which term includes any successor Person under the
Indenture referred to on the reverse hereof), for value received, hereby
promises to pay to or registered assigns the principal sum specified above,
in such coin to currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts, on the
Maturity date specified above, and to pay interest thereon, in such coin or
currency, from and including the Original Issue Date specified above, or from
the most recent Interest Payment Date specified above to which interest has
been paid or duly provided for, as the case may be. Interest shall be paid
in arrears semiannually on each Interest Payment Date in each year commencing
on (a) the first such Interest Payment Date next succeeding the Original
Issue Date specified above, or (b) if such Original Issue Date is after a
Record Date and prior to the first Interest Payment Date, on the second
Interest Payment Date, at the per annum Interest Rate set forth above until
Maturity and the principal hereof is paid or made available for payment. The
interest so payable and punctually paid or duly provided for on any Interest
Payment Date will, as provided in the Indenture, be paid to the Person in
whose name this Note is registered at the close of business on the Record
Date specified above next preceding such Interest Payment Date; PROVIDED,
HOWEVER, that if the Original Issue Date falls between a Record Date and the
next Interest Payment Date, the first payment of interest will be paid on the
second Interest Payment Date subsequent to such Original Issue Date to the
Person in whose name this Note is registered at the close of business on the
Record Date for such second Interest Payment Date; and PROVIDED, FURTHER,
that interest payable on the Maturity date, or, if applicable, upon
redemption, shall be payable to the Person to whom principal shall be
payable. Except as otherwise provided in the Indenture, any such interest
not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Record Date and shall be paid to the Person in
whose name this Note is registered at the close of business on a Record Date
for the payment of such defaulted interest to be fixed by the Company, notice
whereof shall be given to Noteholders not less than fifteen days prior to
such Record Date. Payment of the principal of and any premium and interest
on this Note due at the Maturity of this Note shall be payable in immediately
available funds when due upon presentation and surrender of such Note at the
Corporate Trust Office of the Trustee in the Borough of Manhattan, The City
of New York; PROVIDED that this Note is presented to the Trustee in time for
the Trustee to make such payment in such funds in accordance with its normal
procedures. Accrued Interest on (and, if this Note is an Amortizing Note,
installments of principal of) this Note (other than Accrued Interest or such
installments payable at Maturity) shall be paid by a clearinghouse funds
check mailed on
B-2
the Interest Payment Date; PROVIDED, HOWEVER, that if any
Holder of Notes, the aggregate principal amount of which equals or exceeds
$10,000,000, provides a written request to the Trustee on or before the
applicable Record Date for such Interest Payment Date, Accrued Interest (and
such installments of principal) shall be paid by wire transfer of immediately
available funds to a bank within the continental United States or by direct
deposit into the account of such Holder if such account is maintained with
the Trustee. The Company will pay any administration costs imposed by banks
in connection with making payments by wire transfer, but not any tax,
assessment or governmental charge imposed upon the Holder of this Note.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH IN FULL ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL
PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH IN FULL AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof, directly or through an
Authenticating Agent, by manual signature of an authorized signatory, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
MADISON GAS AND ELECTRIC COMPANY
By
President
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION By
Secretary
This is one of the Notes referred
to in the within-mentioned Indenture.
BANK ONE, N.A., as Trustee
By
Authorized Signatory
B-3
MADISON GAS AND ELECTRIC COMPANY
MEDIUM-TERM NOTE
This Global Note is one of, and a global security which represents
Notes which are part of, the duly authorized Notes of the Company (herein called
the "Notes"), issued and to be issued under an Indenture dated as of __________,
1998 (herein called the "Indenture") between the Company and Bank One, N.A., as
Trustee (herein called the "Trustee", which term includes any successor Trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Noteholders, and of the terms upon which the Notes are, and are to be,
authenticated and delivered.
Each Note shall be dated the date of its authentication by the
Trustee. Each Note shall also bear an Original Issue Date or Dates which with
respect to this Global Note (or any portion thereof) shall mean the date or
dates of the original issue of the Notes represented hereby as specified on the
face hereof, and such Original Issue Date or Dates shall remain the same for all
Notes subsequently issued upon transfer, exchange or substitution of such
original Note (or such subsequently issued Notes) regardless of their dates of
authentication. The Notes may bear different dates, mature at different times,
bear interest at different rates, be subject to different redemption provisions,
if any, and may otherwise vary, all as provided in the Indenture.
Interest on this Note will be payable on the Interest Payment Date or
Interest Payment Dates as specified on the face hereof and, in either case, at
Maturity. Unless otherwise specified on the face hereof, payments on this Note
with respect to any particular Interest Payment Date or the Maturity date will
include interest accrued from and including the applicable Original Issue Date,
or from and including the most recent Interest Payment Date to which interest
has been paid or duly provided for, to but excluding the particular Interest
Payment Date or the Maturity date. Interest on this Note will be computed and
paid on the basis of a 360-day year of twelve 30-day months.
Unless otherwise specified on the face hereof, if this Note is an
Amortizing Note, payments with respect to this Note will be applied first to
interest due and payable hereon and then to the reduction of the unpaid
principal amount hereof. If this Note is an Amortizing Note, a table setting
forth the schedule of dates and amounts of payments of principal of and interest
on this Note or the formula for the amortization of principal and/or interest is
set forth in an annex attached to this Note.
B-4
All percentages resulting from any calculation with respect to this
Note will be rounded, if necessary, to the nearest one hundred-thousandth of a
percentage point (with five one-millionths of a percentage point rounded upward)
and all dollar amounts used in or resulting from any such calculation with
respect to this Note will be rounded to the nearest cent (with one-half cent
being rounded upward).
"Business Day" means, unless otherwise specified on the face hereof,
any Monday, Tuesday, Wednesday, Thursday or Friday that in The City of New York
is not a day on which banking institutions are authorized or obligated by law,
regulation or executive order to close. If an Interest Payment Date or Maturity
for this Note falls on a day that is not a Business Day, payment of principal,
premium, if any, and interest to be made on such day with respect to this Note
will be made on the next day that is a Business Day with the same force and
effect as if made on the due date, and no additional interest will be payable on
the date of payment for the period from and after the due date as a result of
such delayed payment.
This Note will be redeemable at the option of the Company prior to its
Stated Maturity only if an Initial Redemption Date is specified on the face
hereof. If so specified, this Note will be subject to redemption at the option
of the Company on any date on and after such Initial Redemption Date in whole or
from time to time in part in increments of $1,000 or integral multiples thereof,
at the redemption prices specified in an annex attached to this Note, plus
accrued and unpaid interest to but excluding the date of redemption, but
payments due with respect to this Note prior to the date of redemption will be
payable to the Holder of this Note of record at the close of business on the
relevant Record Date specified on the face hereof, all as provided in the
Indenture. The Company may exercise such option by causing the Trustee to mail
a notice of such redemption, at least 30 but not more than 60 calendar days
prior to the date of redemption, in accordance with the provisions of the
Indenture. In the event of redemption of this Note in part only, this Note will
be cancelled and a new Note or Notes representing the unredeemed portion hereof
will be issued in the name of the Holder hereof. This Note is not subject to a
sinking fund unless otherwise specified in an annex attached hereto.
If so specified on the face of this Note, (i) this Note shall be
subject to repayment, in whole or in part, prior to Stated Maturity at the
option of the Holder on a certain date or dates and at a certain price or
prices, plus accrued and unpaid interest to but excluding the date of payment;
(ii) the Stated Maturity of this Note may be extended at the option of the
Company for one or more Extension Periods of from one to five years, as
specified on the
B-5
face hereof, up to but not beyond the Final Maturity Date specified on the
face hereof; (iii) the interest rate specified on the face hereof may be
reset by the Company in accordance with a formula or otherwise on the
Optional Interest Reset Date or Dates specified on the face hereof; and/or
(iv) this Note shall be renewable at the option of the Holder, in each case
in accordance with the provisions of the Indenture applicable thereto and/or
as specified in an annex attached to this Note.
Notwithstanding anything herein to the contrary, if this Note is an
Original Issue Discount Note as specified on the face hereof, the amount payable
in the event the principal amount hereof is declared to be due and payable
immediately by reason of an Event of Default or in the event of redemption or
repayment hereof prior to the Stated Maturity hereof, in lieu of the principal
amount due at the Stated Maturity hereof, shall be the Amortized Face Amount of
this Note as of the date of declaration, redemption or repayment, as the case
may be. The "Amortized Face Amount" of this Note shall be the amount equal to
the principal amount of this Note multiplied by the Issue Price specified on the
face hereof plus (b) the portion of the difference between the dollar amount
thus obtained and the principal amount hereof that has accreted at the Yield to
Maturity specified on the face hereof (computed in accordance with generally
accepted United States bond yield computation principles) to such date of
declaration, redemption or repayment but in no event shall the Amortized Face
Amount of this Note exceed the principal amount stated on the face hereof.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Noteholders to be affected under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of not
less than a majority in aggregate principal amount of the Notes then outstanding
that would be affected thereby. The Indenture also contains provisions
permitting the Holders of not less than a majority in aggregate principal amount
of the Notes then outstanding, on behalf of the Holders of all Notes, to waive
compliance by the Company with certain covenants in the Indenture. The
Indenture also provides that the Holders of not less than a majority in
aggregate principal amount of the Notes then outstanding may waive certain past
defaults and their consequences on behalf of the Holders of all Notes. Any such
consent or waiver by the Holder of this Global Note (if not timely revoked in
accordance with the Indenture) shall be conclusive and binding upon such Holder
and upon all future Holders of this Global Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Global Note
or such Note.
B-6
As set forth in, and subject to, the provisions of the Indenture, no
Holder of any Notes will have any right to institute any proceeding with respect
to the Indenture or for any remedy thereunder, unless such Holder shall have
previously given to the Trustee written notice of a continuing default with
respect to the Notes, the Holders of not less than a majority in aggregate
principal amount of the Notes then outstanding shall have made written request,
and offered reasonable indemnity, to the Trustee to institute such proceeding as
Trustee, and the Trustee shall have failed to institute such proceeding within
60 days; PROVIDED, HOWEVER, that such limitations do not apply to a suit
instituted by the Holder hereof for the enforcement of payment of the principal
of and any premium or interest on this Note on or after the respective due dates
expressed herein.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Note at the times, places and rates, and in the coin or currency, herein
prescribed.
The Indenture contains provisions for the satisfaction and discharge
of the Indenture upon compliance by the Company with certain conditions
specified therein, which provisions apply to this Note.
Unless otherwise specified in an annex attached hereto, the Notes are
issuable only in registered form, without coupons, in denominations of $1,000
and integral multiples thereof. As provided in the Indenture and subject to
certain limitations specified therein, this Note may be exchanged for one or
more new Notes, of any authorized denominations and of a like aggregate
principal amount and Stated Maturity and having the same terms and Original
Issue Date, as requested by the Holder surrendering this Note.
As provided in the Indenture and subject to the limitations specified
therein, upon due presentment of this Note for registration of transfer at an
office or agency of the Trustee in the Borough of Manhattan, The City of New
York, maintained for such purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the note
registrar duly executed by, the Holder hereof or the attorney of such Holder
duly authorized in writing, the Company shall execute and register or cause to
be registered and the Trustee shall authenticate and make available for
delivery, in the name of the transferee or transferees one or more new Notes of
any authorized denominations and of a like aggregate principal amount
B-7
and Stated Maturity and having the same terms and Original Issue Date.
No service charge will be made for any such exchange or registration
of transfer, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by, and construed in
accordance with, the laws of the State of New York.
All terms used in the Note which are defined in the Indenture but are
not defined in this Note shall have the meanings assigned to them in the
Indenture.
B-8
OPTION TO ELECT REPAYMENT
[To be completed only if this Note is repayable at the option
of the Holder and the Holder elects to exercise such rights]
The undersigned owner of this Note hereby irrevocably elects to have
the Company repay (i) the principal amount of this Note or portion hereof below
designated at the applicable optional repayment price indicated on an annex
attached hereto plus accrued and unpaid interest to but excluding the date of
repayment, if this election is being made pursuant to the option referred to
under "Option to Elect Repayment" on the face hereof, or (ii) 100% of the
principal amount of this Note plus accrued and unpaid interest to but excluding
the Optional Interest Reset Date, if this election is being made following an
exercise by the Company of the option referred to under "Optional Interest
Reset" on the face hereof, or to but excluding the Pre-Exercise Stated Maturity
Date (as defined in the Indenture), if this election is being made following an
exercise by the Company of an option referred to under "Optional Extension of
Original Maturity Date" on the face hereof. If a portion of this Note is not
being repaid pursuant to clause (i) above, specify the principal amount to be
repaid and the denomination or denominations (which will be $1,000 or an
integral multiple thereof) of the Note or Notes to be issued to the Holder for
the portion of this Note not being repaid (in the absence of any specification,
one such Note will be issued for the portion not being repaid):
Dated:
-------------------------- --------------------------------------------
Signature
Sign exactly as name appears on the
front of this Note
Principal amount to be repaid if Indicate address where check is
amount to be repaid is pursuant to be sent:
to clause (i) above and is less than
the entire principal amount of this ---------------------------------------
Note (principal amount remaining
must be an authorized denomination) ---------------------------------------
$
-----------------------------------
(Which must be an integral multiple
of $1,000)
Denomination or denominations of the SOCIAL SECURITY OR OTHER TAXPAYER
Note or Notes to be issued for the ID NUMBER:
portion of this Note not being
repaid pursuant to clause (i) above: ---------------------------------------
--------------------------------------
--------------------------------------
B-9
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIT GIFT
MIN ACT - Custodian
TEN ENT - as tenants by the ----- -----
entireties (Cust) (Minor)
Under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with
right of survivorship and
not as tenants in common -------------------
State
Additional abbreviations may also be used though not in the above
list.
----------------------
FOR VALUE RECEIVED the undersigned hereby sell(s)
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
-----------------------------------------------------------------
Please print or typewrite name and address
including postal zip code of assignee
-----------------------------------------------------------------
the within note and all rights thereunder, hereby irrevocably constituting and
appointing _____________________________________
_______________________ attorney to transfer said note on the books of the
Company, with full power of substitution in the premises.
Dated:--------------------
-----------------------------------
NOTICE: The signature(s) to this assignment must
correspond with the name(s) as written upon the
face of the within instrument in every particular,
without alteration or enlargement or any change
whatever. The signature(s) must be guaranteed by
an "eligible guarantor institution" that is a
member or participant in the Securities Transfer
Agents Medallion Program, the Stock Exchange
Medallion Program or the New York Stock Exchange,
Inc. Medallion Program.
B-10
EXHIBIT C
Global Floating Rate Note
REGISTERED REGISTERED
NO.
MADISON GAS AND ELECTRIC COMPANY
Floating Rate
Medium-Term Note
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the Company
or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co., or in such other
name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
The following summary of terms is subject to the provisions set forth
below:
CUSIP: INITIAL REDEMPTION DATE:
ORIGINAL ISSUE DATE(S): AMORTIZING NOTE: / / Yes / / No
PRINCIPAL AMOUNT: OPTION TO ELECT
REPAYMENT: / / Yes / / No
MATURITY DATE:
OPTIONAL EXTENSION OF
INITIAL INTEREST RATE: ORIGINAL MATURITY DATE: / / Yes / / No
INTEREST RATE BASIS OR BASE RATE EXTENSION PERIOD:
(including any Designated LIBOR
Page): NUMBER OF EXTENSION PERIODS:
INDEX MATURITY: FINAL MATURITY DATE:
INTEREST DETERMINATION DATES: OPTIONAL INTEREST RESET: / / Yes / / No
INTEREST RESET PERIOD: OPTIONAL INTEREST RESET
DATES:
INTEREST RESET DATES:
ORIGINAL ISSUE DISCOUNT
SPREAD: NOTE: / / Yes / / No
SPREAD MULTIPLIER: ISSUE PRICE (percentage of
principal):
MAXIMUM INTEREST RATE:
YIELD TO MATURITY:
MINIMUM INTEREST RATE:
RENEWABLE AT OPTION OF
INTEREST PAYMENT DATES: HOLDER: / / Yes / / No
RECORD DATES: ANNEX ATTACHED (and
incorporated by
OPTIONAL REDEMPTION: / / Yes / / No reference herein): / / Yes / / No
Madison Gas and Electric Company, a Wisconsin corporation (herein
called the "Company", which term includes any successor Person under the
Indenture referred to on the reverse hereof), for value received, hereby
promises to pay to
or registered assigns the principal sum specified above, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts, on the Maturity date specified
above and to pay interest thereon, in such coin or currency, from and including
the Original Issue Date (or if this Global Note has two or more Original Issue
Dates, interest shall, beginning on each such Original Issue Date, begin to
accrue for that part of the principal amount to which such Original Issue Date
is applicable) specified above, or from and including the most recent Interest
Payment Date specified above to which interest has been paid or duly provided
for, as the case may be. Interest shall be paid in arrears monthly, quarterly,
semiannually or annually as specified above under Interest Payment Dates, on
each Interest Payment Date in each year and at Maturity, commencing on (a) the
first such Interest Payment Date next succeeding the earliest Original Issue
Date or Dates, or (b) if such Original Issue Date is after a Record Date and
prior to the first Interest Payment Date, on the second Interest Payment Date,
at a rate per annum equal to the Initial Interest Rate specified above until the
initial Interest Reset Date specified above, and thereafter at a rate per annum
determined in accordance with the provisions in the Indenture for calculating
the Interest Rate for Notes having the Interest Rate Basis specified above,
until Maturity and the principal hereof is paid or made available for payment.
The interest so payable and punctually paid or duly provided for on any Interest
Payment Date will, as provided in the Indenture, be paid to the Person in whose
name this Note is registered at the close of business on the Record Date
specified above next preceding such Interest Payment Date; PROVIDED, HOWEVER,
that if an Original Issue Date falls between a Record Date and the next Interest
Payment Date, the first payment of interest with respect to such Original Issue
Date will be paid on the second Interest Payment Date subsequent to such
Original Issue Date to the Person in whose name this Note is registered at the
close of business on the Record Date for such second Interest Payment Date; and
PROVIDED, FURTHER, that interest payable on the Maturity date or, if applicable,
upon redemption, shall be payable to the Person to whom principal shall be
payable. Except as otherwise provided in the Indenture, any such interest not
so punctually paid or duly provided for will forthwith cease to be payable to
the Holder on such Record Date and shall be paid to the Person in whose name
this Note is registered at the close of business on a Record Date for the
payment of such defaulted interest to be fixed by the Company, notice whereof
shall be given to Noteholders not less than fifteen days prior to such Record
Date. Payment of the principal of and any premium and interest on this Note
shall be made on or before
C-2
10:30 A.M., New York City time or such other time as shall be agreed upon
between the Trustee and the Depositary, of the day on which such payment is
due, by wire transfer into the account specified by the Depositary; PROVIDED,
HOWEVER, that as a condition to the payment at the Maturity date of any part
of the principal and any applicable premium of this Global Note, the
Depositary shall surrender, or cause to be surrendered, this Global Note to
the Trustee. The Company will pay any administrative costs imposed by banks
in connection with making payments by wire transfer, but not any tax,
assessment or governmental charge imposed on the Holder of this Note.
Under certain circumstances, this Global Note is exchangeable in whole
or from time to time in part for a definitive individual Note or Notes, with the
same Original Issue Date or Dates, Maturity date, Interest Rate and redemption
and other provisions as provided herein or in the Indenture.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS GLOBAL NOTE
SET FORTH IN FULL ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL
PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH IN FULL AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof, directly or through an
Authenticating Agent, by manual signature of an authorized signatory, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
MADISON GAS AND ELECTRIC COMPANY
By
------------------------------------
President
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION By
------------------------------------
This is one of the Notes referred Secretary
to in the within-mentioned Indenture.
BANK ONE, N.A., as Trustee
By
-------------------------------
Authorized Signatory
C-3
MADISON GAS AND ELECTRIC COMPANY
MEDIUM-TERM NOTE
This Global Note is one of, and a global security which represents
Notes which are part of, the duly authorized Notes of the Company (herein called
the "Notes"), issued and to be issued under an Indenture dated as of __________,
1998 (herein called the "Indenture") between the Company and Bank One, N.A., as
Trustee (herein called the "Trustee", which term includes any successor Trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Noteholders, and of the terms upon which the Notes are, and are to be,
authenticated and delivered.
Each Note shall be dated the date of its authentication by the
Trustee. Each Note shall also bear an Original Issue Date or Dates which with
respect to this Global Note (or any portion thereof) shall mean the date or
dates of the original issue of the Notes represented hereby as specified on the
face hereof, and such Original Issue Date or Dates shall remain the same for all
Notes subsequently issued upon transfer, exchange or substitution of such
original Note (or such subsequently issued Notes) regardless of their dates of
authentication. The Notes may bear different dates, mature at different times,
bear interest at different rates, be subject to different redemption provisions,
if any, and may otherwise vary, all as provided in the Indenture.
Interest on this Note will be payable on the Interest Payment Date or
Interest Payment Dates as specified on the face hereof and, in either case, at
Maturity. Unless otherwise specified on the face hereof, payments on this Note
with respect to any particular Interest Payment Date or the Maturity date will
include interest accrued from and including the applicable Original Issue Date,
or from and including the most recent Interest Payment Date to which interest
has been paid or duly provided for, to but excluding the particular Interest
Payment Date or the Maturity date. Interest on this Note shall be calculated
for each day during such period by dividing the interest rate applicable to such
day by 360, if the Interest Rate Basis specified on the face hereof is the
Commercial Paper Rate, LIBOR or Prime Rate, or by the actual number of days in
the year, if the Interest Rate Basis specified on the face hereof is the
Treasury Rate. Unless otherwise provided in an annex attached hereto, the
Trustee, acting in the capacity of Calculation Agent, will calculate the
Interest Rate on this Note. Upon the request of any Holder of this Note, the
Trustee shall provide to such Holder the Interest Rate then in effect and, if
then determined, the interest rate that will become effective on the next
Interest Reset Date with respect to this Note. Each such determination of an
Interest Rate will be final and binding in the absence of manifest error.
C-4
Unless otherwise specified in an annex attached hereto, if this Note
is an Amortizing Note, payments with respect to this Note will be applied first
to interest due and payable hereon and then to the reduction of the unpaid
principal amount hereof. If this Note is an Amortizing Note, a table setting
forth the schedule of dates and amounts of payments of principal of and interest
on this Note or the formula for the amortization of principal and/or interest is
set forth in an annex attached to this Note.
All percentages resulting from any calculation with respect to this
Note will be rounded, if necessary, to the nearest one hundred-thousandth of a
percentage point (with five one-millionths of a percentage point rounded upward)
and all dollar amounts used in or resulting from any such calculation with
respect to this Note will be rounded to the nearest cent (with one-half cent
being rounded upward).
"Business Day" means, unless otherwise specified on the face hereof,
any Monday, Tuesday, Wednesday, Thursday or Friday that in The City of New York
is not a day on which banking institutions are authorized or obligated by law,
regulation or executive order to close. If an Interest Payment Date or Maturity
for this Note falls on a day that is not a Business Day, payment of principal,
premium, if any, and interest to be made on such day with respect to this Note
will be made on the next day that is a Business Day with the same force and
effect as if made on the due date, and no additional interest will be payable on
the date of payment for the period from and after the due date as a result of
such delayed payment.
This Note will be redeemable at the option of the Company prior to its
Stated Maturity only if an Initial Redemption Date is specified on the face
hereof. If so specified, this Note will be subject to redemption at the option
of the Company on any date on and after such Initial Redemption Date in whole or
from time to time in part in increments of $1,000 or integral multiples thereof,
at the redemption prices specified in an annex attached to this Note, plus
accrued and unpaid interest to but excluding the date of redemption, but
payments due with respect to this Note prior to the date of redemption will be
payable to the Holder of this Note of record at the close of business on the
relevant Record Date specified on the face hereof, all as provided in the
Indenture. The Company may exercise such option by causing the Trustee to mail
a notice of such redemption, at least 30 but not more than 60 calendar days
prior to the date of redemption, in accordance with the provisions of the
Indenture. In the event of redemption of this Note in part only, this Note will
be cancelled and a new Note or Notes representing the unredeemed portion hereof
will be issued in the name of the Holder hereof. This Note is not subject to a
sinking fund unless otherwise specified in an annex attached hereto.
C-5
If so specified on the face of this Note, (i) this Note shall be
subject to repayment, in whole or in part, prior to Stated Maturity at the
option of the Holder on a certain date or dates and at a certain price or
prices, plus accrued and unpaid interest to but excluding the date of payment;
(ii) the Stated Maturity of this Note may be extended at the option of the
Company for one or more Extension Periods of from one to five years, as
specified on the face hereof, up to but not beyond the Final Maturity Date
specified on the face hereof; (iii) the interest rate specified on the face
hereof may be reset by the Company in accordance with a formula or otherwise on
the Optional Interest Reset Date or Dates specified on the face hereof; and/or
(iv) this Note shall be renewable at the option of the Holder, in each case in
accordance with the provisions of the Indenture applicable thereto and/or as
specified in an annex attached to this Note.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Noteholders to be affected under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of not
less than a majority in aggregate principal amount of the Notes then outstanding
that would be affected thereby. The Indenture also contains provisions
permitting the Holders of not less than a majority in aggregate principal amount
of the Notes then outstanding, on behalf of the Holders of all Notes, to waive
compliance by the Company with certain covenants in the Indenture. The
Indenture also provides that the Holders of not less than a majority in
aggregate principal amount of the Notes then outstanding may waive certain past
defaults and their consequences on behalf of the Holders of all Notes. Any such
consent or waiver by the Holder of this Global Note (if not timely revoked in
accordance with the Indenture) shall be conclusive and binding upon such Holder
and upon all future Holders of this Global Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Global Note
or such Note.
As set forth in, and subject to, the provisions of the Indenture, no
Holder of any Notes will have any right to institute any proceeding with respect
to the Indenture or for any remedy thereunder, unless such Holder shall have
previously given to the Trustee written notice of a continuing default with
respect to the Notes, the Holders of not less than a majority in aggregate
principal amount of the Notes then outstanding shall have made written request,
and offered reasonable indemnity, to the Trustee to institute such proceeding as
Trustee, and the Trustee shall have failed to institute such proceeding within
60 days; PROVIDED, HOWEVER, that such limitations do not apply to a suit
instituted by the Holder hereof for the enforcement of payment of the principal
C-6
of and any premium or interest on this Global Note on or after the respective
due dates expressed herein.
THIS NOTE IS A GLOBAL NOTE REGISTERED IN THE NAME OF THE DEPOSITARY OR A
NOMINEE THEREOF AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
THE INDIVIDUAL NOTES REPRESENTED HEREBY, THIS GLOBAL NOTE MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY
OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE
OF SUCH SUCCESSOR DEPOSITARY.
If at any time the Depositary for this Global Note notifies the
Company that it is unwilling or unable to continue as Depositary for this Global
Note or if at any time the Depositary for this Global Note shall no longer be
registered as a clearing agency under the Securities Exchange Act of 1934, as
amended, or any successor statute or regulation, the Company may appoint a
successor Depositary with respect to this Global Note. If (A) a successor
Depositary for this Global Note is not appointed by the Company within 90 days
after the Company receives such notice or becomes aware of such ineligibility,
or (B) any Notes are represented by this Global Note at a time when an Event of
Default with respect to the Notes shall have occurred and be continuing, then in
each case the Company's election to issue this Note in global form shall no
longer be effective with respect to this Global Note and the Company will
execute, and the Trustee, upon receipt of a Company Order for the authentication
and delivery of individual Notes in exchange for this Global Note, shall
authenticate and make available for delivery, individual Notes of like tenor and
terms in definitive form in an aggregate principal amount equal to the principal
amount of this Global Note in exchange for this Global Note.
If agreed by the Company and the Depositary with respect to Notes
issued in the form of this Global Note, the Depositary for such Global Note
shall surrender this Global Note in exchange in whole or in part for individual
Notes of like tenor and terms in definitive form on such terms as are acceptable
to the Company and such Depositary. Thereupon the Company shall execute, and
the Trustee shall authenticate and make available for delivery, without a
service charge, (1) to each Person specified by such Depositary, a new Note or
Notes of like tenor and terms, and of any authorized denominations as requested
by such Person in aggregate principal amount equal to and in exchange for the
beneficial interest of such Person in this Global Note, and (2) to such
Depositary a new Global Note of like tenor and terms and in a denomination equal
to the difference, if any, between the principal amount of this Global Note and
the aggregate principal amount of Notes delivered to Holders thereof.
C-7
Under certain circumstances specified in the Indenture, the Depositary
may be required to surrender any two or more Global Notes which have identical
terms (but which may have differing Original Issue Dates) to the Trustee, and
the Company shall execute and the Trustee shall authenticate and deliver to, or
at the direction of, the Depositary a Global Note in principal amount equal to
the aggregate principal amount of, and with all terms identical to, the Global
Notes surrendered to the Trustee, and such new Global Note shall indicate each
applicable Original Issue Date and the principal amount applicable to each such
Original Issue Date.
No reference herein to the Indenture and no provision of this Global
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and any premium and
interest on this Global Note at the times, places and rates, and in the coin or
currency, herein prescribed.
The Indenture contains provisions for the satisfaction and discharge
of the Indenture upon compliance by the Company with certain conditions
specified therein, which provisions apply to this Note.
Prior to due presentment of this Global Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Global Note is registered as the owner
hereof for all purposes, whether or not this Global Note is overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Indenture and the Notes shall be governed by, and construed in
accordance with, the laws of the State of New York.
All terms used in the Note which are defined in the Indenture but are
not defined in this Note shall have the meanings assigned to them in the
Indenture.
C-8
OPTION TO ELECT REPAYMENT
[To be completed only if this Note is repayable at the option
of the Holder and the Holder elects to exercise such rights]
The undersigned owner of this Note hereby irrevocably elects to have
the Company repay (i) the principal amount of this Note or portion hereof below
designated at the applicable optional repayment price indicated on an annex
attached hereto plus accrued and unpaid interest to but excluding the date of
repayment, if this election is being made pursuant to the option referred to
under "Option to Elect Repayment" on the face hereof, or (ii) 100% of the
principal amount of this Note plus accrued and unpaid interest to but excluding
the Optional Interest Reset Date, if this election is being made following an
exercise by the Company of the option referred to under "Optional Interest
Reset" on the face hereof, or to but excluding the Pre-Exercise Stated Maturity
Date (as defined in the Indenture), if this election is being made following an
exercise by the Company of the option referred to under "Optional Extension of
Original Maturity Date" on the face hereof. If a portion of this Note is not
being repaid pursuant to clause (i) above, specify the principal amount to be
repaid and the denomination or denominations (which will be $1,000 or an
integral multiple thereof) of the Note or Notes to be issued to the Holder for
the portion of this Note not being repaid (in the absence of any specification,
one such Note will be issued for the portion not being repaid):
Dated:
------------------------- --------------------------------------
Signature
Sign exactly as name appears on the
front of this Note
Principal amount to be repaid if Indicate address where check is
amount to be repaid is pursuant to be sent:
to clause (i) above and is less than
the entire principal amount of this --------------------------------------
Note (principal amount remaining
must be an authorized denomination) --------------------------------------
$
----------------------------------
(Which must be an integral multiple
of $1,000)
Denomination or denominations of the SOCIAL SECURITY OR OTHER TAXPAYER
Note or Notes to be issued for the ID NUMBER:
portion of this Note not being
repaid pursuant to clause (i) above: --------------------------------------
-----------------------------------
-----------------------------------
C-9
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIT GIFT
MIN ACT - _____Custodian_____
TEN ENT - as tenants by the (Cust) (Minor)
entireties Under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with
right of survivorship and
not as tenants in common --------------------
State
Additional abbreviations may also be used though not in the above
list.
----------------------
FOR VALUE RECEIVED the undersigned hereby sell(s)
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------------
--------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address
including postal zip code of assignee
--------------------------------------------------------------------------------
the within note and all rights thereunder, hereby irrevocably constituting
and appointing _________________________________________________________________
_______________________ attorney to transfer said note on the books of the
Company, with full power of substitution in the premises.
Dated:
-------------------
--------------------------------------------------
NOTICE: The signature(s) to this assignment must
correspond with the name(s) as written upon the
face of the within instrument in every particular,
without alteration or enlargement or any change
whatever. The signature(s) must be guaranteed by
an "eligible guarantor institution" that is a
member or participant in the Securities Transfer
Agents Medallion Program, the Stock Exchange
Medallion Program or the New York Stock Exchange,
Inc. Medallion Program.
C-10
EXHIBIT D
Floating Rate Note
REGISTERED REGISTERED
NO.
MADISON GAS AND ELECTRIC COMPANY
Floating Rate
Medium-Term Note
The following summary of terms is subject to the provisions set forth
below:
CUSIP: INITIAL REDEMPTION DATE:
ORIGINAL ISSUE DATE: AMORTIZING NOTE: / / Yes / / No
PRINCIPAL AMOUNT: OPTION TO ELECT
REPAYMENT: / / Yes / / No
MATURITY DATE:
OPTIONAL EXTENSION OF
INITIAL INTEREST RATE: ORIGINAL MATURITY DATE: / / Yes / / No
INTEREST RATE BASIS OR BASE RATE EXTENSION PERIOD:
(including any Designated LIBOR
Page): NUMBER OF EXTENSION PERIODS:
INDEX MATURITY: FINAL MATURITY DATE:
INTEREST DETERMINATION DATES: OPTIONAL INTEREST RESET: / / Yes / / No
INTEREST RESET PERIOD: OPTIONAL INTEREST RESET
DATES:
INTEREST RESET DATES:
ORIGINAL ISSUE DISCOUNT
SPREAD: NOTE: / / Yes / / No
SPREAD MULTIPLIER: ISSUE PRICE (percentage
of principal):
MAXIMUM INTEREST RATE: YIELD TO MATURITY:
MINIMUM INTEREST RATE: RENEWABLE AT OPTION OF
HOLDER: / / Yes / / No
INTEREST PAYMENT DATES:
ANNEX ATTACHED (and
RECORD DATES: incorporated by
reference herein): / / Yes / / No
OPTIONAL REDEMPTION: / / Yes / / No
Madison Gas and Electric Company, a Wisconsin corporation (herein
called the "Company", which term includes any successor Person under the
Indenture referred to on the reverse hereof), for value received, hereby
promises to pay to
or registered assigns the principal sum specified above, in such coin to
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts, on the Maturity date specified
above, and to pay interest thereon, in such coin or currency, from and including
the Original Issue Date specified above, or from the most recent Interest
Payment Date specified above to which interest has been paid or duly provided
for, as the case may be. Interest shall be paid in arrears monthly, quarterly,
semiannually or annually as specified above under Interest Payment Dates, on
each Interest Payment Date in each year and at Maturity, commencing on (a) the
first such Interest Payment Date next succeeding the Original Issue Date
specified above, or (b) if such Original Issue Date is after a Record Date and
prior to the first Interest Payment Date, on the second Interest Payment Date,
at a rate per annum equal to the Initial Interest Rate specified above until the
initial Interest Reset Date specified above, and thereafter at a rate per annum
determined in accordance with the provisions in the Indenture for calculating
the Interest Rate for Notes having the Interest Rate Basis specified above,
until Maturity and the principal hereof is paid or made available for payment.
The interest so payable and punctually paid or duly provided for on any Interest
Payment Date will, as provided in the Indenture, be paid to the Person in whose
name this Note is registered at the close of business on the Record Date
specified above next preceding such Interest Payment Date; PROVIDED, HOWEVER,
that if the Original Issue Date falls between a Record Date and the next
Interest Payment Date, the first payment of interest will be paid on the second
Interest Payment Date subsequent to such Original Issue Date to the Person in
whose name this Note is registered at the close of business on the Record Date
for such second Interest Payment Date; and PROVIDED, FURTHER, that interest
payable on the Maturity date, or, if applicable, upon redemption, shall be
payable to the Person to whom principal shall be payable. Except as otherwise
provided in the Indenture, any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Record
Date and shall be paid to the Person in whose name this Note is registered at
the close of business on a Record Date for the payment of such defaulted
interest to be fixed by the Company, notice whereof shall be given to
Noteholders not less than fifteen days prior to such Record Date. Payment of
the principal of and any premium and interest on this Note due at the Maturity
of this Note shall be payable in immediately available funds when due upon
presentation and surrender of such Note at the Corporate Trust Office of the
Trustee in the Borough of Manhattan, The City of New York; PROVIDED that
D-2
this Note is presented to the Trustee in time for the Trustee to make such
payment in such funds in accordance with its normal procedures. Accrued
Interest on (and, if this Note is an Amortizing Note, installments of
principal of) this Note (other than Accrued Interest or such installments
payable at Maturity) shall be paid by a clearinghouse funds check mailed on
the Interest Payment Date; PROVIDED, HOWEVER, that if any Holder of Notes,
the aggregate principal amount of which equals or exceeds $10,000,000,
provides a written request to the Trustee on or before the applicable Record
Date for such Interest Payment Date, Accrued Interest (and such installments
of principal) shall be paid by wire transfer of immediately available funds
to a bank within the continental United States or by direct deposit into the
account of such Holder if such account is maintained with the Trustee. The
Company will pay any administration costs imposed by banks in connection with
making payments by wire transfer, but not any tax, assessment or governmental
charge imposed upon the Holder of this Note.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH IN FULL ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL
PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH IN FULL AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof, directly or through an
Authenticating Agent, by manual signature of an authorized signatory, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
----------------------------
MADISON GAS AND ELECTRIC COMPANY
By
--------------------------
President
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION By
--------------------------
Secretary
This is one of the Notes referred
to in the within-mentioned Indenture.
BANK ONE, N.A., as Trustee
By
-------------------------------
Authorized Signatory
D-3
MADISON GAS AND ELECTRIC COMPANY
MEDIUM-TERM NOTE
This Note is one of the duly authorized Notes of the Company (herein
called the "Notes"), issued and to be issued under an Indenture dated as of
__________, 1998 (herein called the "Indenture") between the Company and Bank
One, N.A., as Trustee (herein called the "Trustee", which term includes any
successor Trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Noteholders, and of the terms upon which the Notes are, and
are to be, authenticated and delivered.
Each Note shall be dated the date of its authentication by the
Trustee. Each Note shall also bear an Original Issue Date which with respect to
this Note (or any portion thereof) shall mean the date of its original issue as
specified on the face hereof, and such Original Issue Date shall remain the same
for all Notes subsequently issued upon transfer, exchange or substitution of
such original Note (or such subsequently issued Notes) regardless of their dates
of authentication. The Notes may bear different dates, mature at different
times, bear interest at different rates, be subject to different redemption
provisions, if any, and may otherwise vary, all as provided in the Indenture.
Interest on this Note will be payable on the Interest Payment Date or
Interest Payment Dates as specified on the face hereof and, in either case, at
Maturity. Unless otherwise specified on the face hereof, payments on this Note
with respect to any particular Interest Payment Date or the Maturity date will
include interest accrued from and including the Original Issue Date, or from and
including the most recent Interest Payment Date to which interest has been paid
or duly provided for, to but excluding such Interest Payment Date or the
Maturity date. Interest on this Note shall be calculated for each day during
such period by dividing the interest rate applicable to such day by 360, if the
Interest Rate Basis specified on the face hereof is the Commercial Paper Rate,
LIBOR or Prime Rate, or by the actual number of days in the year, if the
Interest Rate Basis specified on the face hereof is the Treasury Rate. Unless
otherwise provided in an annex attached hereto, the Trustee, acting in the
capacity of Calculation Agent, will calculate the Interest Rate on this Note.
Upon the request of any Holder of this Note, the Trustee shall provide to such
Holder the Interest Rate then in effect and, if then determined, the interest
rate that will become effective on the next Interest Reset Date with respect to
this Note. Each such
D-4
determination of an Interest Rate will be final and binding in the absence of
manifest error.
Unless otherwise specified in an annex attached hereto, if this Note
is an Amortizing Note, payments with respect to this Note will be applied first
to interest due and payable hereon and then to the reduction of the unpaid
principal amount hereof. If this Note is an Amortizing Note, a table setting
forth the schedule of dates and amounts of payments of principal of and interest
on this Note or the formula for the amortization of principal and/or interest is
set forth in an annex attached to this Note.
All percentages resulting from any calculation with respect to this
Note will be rounded, if necessary, to the nearest one hundred-thousandth of a
percentage point (with five one-millionths of a percentage point rounded upward)
and all dollar amounts used in or resulting from any such calculation with
respect to this Note will be rounded to the nearest cent (with one-half cent
being rounded upward).
"Business Day" means, unless otherwise specified on the face hereof,
any Monday, Tuesday, Wednesday, Thursday or Friday that in The City of New York
is not a day on which banking institutions are authorized or obligated by law,
regulation or executive order to close. If an Interest Payment Date or Maturity
for this Note falls on a day that is not a Business Day, payment of principal,
premium, if any, and interest to be made on such day with respect to this Note
will be made on the next day that is a Business Day with the same force and
effect as if made on the due date, and no additional interest will be payable on
the date of payment for the period from and after the due date as a result of
such delayed payment.
This Note will be redeemable at the option of the Company prior to its
Stated Maturity only if an Initial Redemption Date is specified on the face
hereof. If so specified, this Note will be subject to redemption at the option
of the Company on any date on and after such Initial Redemption Date in whole or
from time to time in part in increments of $1,000 or integral multiples thereof,
at the redemption prices specified in an annex attached to this Note, plus
accrued and unpaid interest to but excluding the date of redemption, but
payments due with respect to this Note prior to the date of redemption will be
payable to the Holder of this Note of record at the close of business on the
relevant Record Date specified on the face hereof, all as provided in the
Indenture. The Company may exercise such option by causing the Trustee to mail
a notice of such redemption, at least 30 but not more than 60 calendar days
prior to the date of redemption, in accordance with the provisions of the
Indenture. In the event of redemption of this Note in part only, this Note will
be cancelled and a new Note
D-5
or Notes representing the unredeemed portion hereof will be issued in the
name of the Holder hereof. This Note is not subject to a sinking fund unless
otherwise specified in an annex attached hereto.
If so specified on the face of this Note, (i) this Note shall be
subject to repayment, in whole or in part, prior to Stated Maturity at the
option of the Holder on a certain date or dates and at a certain price or
prices, plus accrued and unpaid interest to but excluding the date of payment;
(ii) the Stated Maturity of this Note may be extended at the option of the
Company for one or more Extension Periods of from one to five years, as
specified on the face hereof, up to but not beyond the Final Maturity Date
specified on the face hereof; (iii) the interest rate specified on the face
hereof may be reset by the Company in accordance with a formula or otherwise on
the Optional Interest Reset Date or Dates specified on the face hereof; and/or
(iv) this Note shall be renewable at the option of the Holder, in each case in
accordance with the provisions of the Indenture applicable thereto and/or as
specified in an annex attached to this Note.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Noteholders to be affected under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of not
less than a majority in aggregate principal amount of the Notes then outstanding
that would be affected thereby. The Indenture also contains provisions
permitting the Holders of not less than a majority in aggregate principal amount
of the Notes then outstanding, on behalf of the Holders of all Notes, to waive
compliance by the Company with certain covenants in the Indenture. The
Indenture also provides that the Holders of not less than a majority in
aggregate principal amount of the Notes then outstanding may waive certain past
defaults and their consequences on behalf of the Holders of all Notes. Any such
consent or waiver by the Holder of this Global Note (if not timely revoked in
accordance with the Indenture) shall be conclusive and binding upon such Holder
and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note or such
Note.
As set forth in, and subject to, the provisions of the Indenture, no
Holder of any Notes will have any right to institute any proceeding with respect
to the Indenture or for any remedy thereunder, unless such Holder shall have
previously given to the Trustee written notice of a continuing default with
respect to the Notes, the Holders of not less than a majority in aggregate
principal amount of the Notes then outstanding shall have made
D-6
written request, and offered reasonable indemnity, to the Trustee to
institute such proceeding as Trustee, and the Trustee shall have failed to
institute such proceeding within 60 days; PROVIDED, HOWEVER, that such
limitations do not apply to a suit instituted by the Holder hereof for the
enforcement of payment of the principal of and any premium or interest on
this Note on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Note at the times, places and rates, and in the coin or currency, herein
prescribed.
The Indenture contains provisions for the satisfaction and discharge
of the Indenture upon compliance by the Company with certain conditions
specified therein, which provisions apply to this Note.
Unless otherwise specified in an annex attached hereto, the Notes are
issuable only in registered form, without coupons, in denominations of $1,000
and integral multiples thereof. As provided in the Indenture and subject to
certain limitations specified therein, this Note may be exchanged for one or
more new Notes, of any authorized denominations and of a like aggregate
principal amount and Stated Maturity and having the same terms and Original
Issue Date, as requested by the Holder surrendering this Note.
As provided in the Indenture and subject to the limitations specified
therein, upon due presentment of this Note for registration of transfer at an
office or agency of the Trustee in the Borough of Manhattan, The City of New
York, maintained for such purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the note
registrar duly executed by, the Holder hereof or the attorney of such Holder
duly authorized in writing, the Company shall execute and register or cause to
be registered and the Trustee shall authenticate and make available for
delivery, in the name of the transferee or transferees one or more new Notes of
any authorized denominations and of a like aggregate principal amount and Stated
Maturity and having the same terms and Original Issue Date.
No service charge will be made for any such exchange or registration
of transfer, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
D-7
Prior to due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by, and construed in
accordance with, the laws of the State of New York.
All terms used in the Note which are defined in the Indenture but are
not defined in this Note shall have the meanings assigned to them in the
Indenture.
D-8
OPTION TO ELECT REPAYMENT
[To be completed only if this Note is repayable at the option
of the Holder and the Holder elects to exercise such rights]
The undersigned owner of this Note hereby irrevocably elects to have
the Company repay (i) the principal amount of this Note or portion hereof below
designated at the applicable optional repayment price indicated on an annex
attached hereto plus accrued and unpaid interest to but excluding the date of
repayment, if this election is being made pursuant to the option referred to
under "Option to Elect Repayment" on the face hereof, or (ii) 100% of the
principal amount of this Note plus accrued and unpaid interest to but excluding
the Optional Interest Reset Date, if this election is being made following an
exercise by the Company of the option referred to under "Optional Interest
Reset" on the face hereof, or to but excluding the Pre-Exercise Stated Maturity
Date (as defined in the Indenture), if this election is being made following an
exercise by the Company of an option referred to under "Optional Extension of
Original Maturity Date" on the face hereof. If a portion of this Note is not
being repaid pursuant to clause (i) above, specify the principal amount to be
repaid and the denomination or denominations (which will be $1,000 or an
integral multiple thereof) of the Note or Notes to be issued to the Holder for
the portion of this Note not being repaid (in the absence of any specification,
one such Note will be issued for the portion not being repaid):
Dated:
------------------------------ ---------------------------------------
Signature
Sign exactly as name appears on the
front of this Note
Principal amount to be repaid if Indicate address where check is
amount to be repaid is pursuant to be sent:
to clause (i) above and is less than
the entire principal amount of this ---------------------------------------
Note (principal amount remaining
must be an authorized denomination) ---------------------------------------
$
-----------------------------------
(Which must be an integral multiple
of $1,000)
Denomination or denominations of the SOCIAL SECURITY OR OTHER TAXPAYER
Note or Notes to be issued for the ID NUMBER:
portion of this Note not being
repaid pursuant to clause (i) above: ---------------------------------------
------------------------------------
------------------------------------
D-9
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIT GIFT
MIN ACT - _____Custodian_____
TEN ENT - as tenants by the (Cust) (Minor)
entireties Under Uniform Gifts
to Minors Act
JT TEN - as joint tenants with
right of survivorship and
not as tenants in common --------------------
State
Additional abbreviations may also be used though not in the above
list.
----------------------
FOR VALUE RECEIVED the undersigned hereby sell(s)
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
---------------------------------------
-------------------------------------------------------------------------------
Please print or typewrite name and address
including postal zip code of assignee
-------------------------------------------------------------------------------
the within note and all rights thereunder, hereby irrevocably constituting and
appointing ____________________________________________________________________
_______________________ attorney to transfer said note on the books of the
Company, with full power of substitution in the premises.
Dated:
----------------------
-------------------------------------------------
NOTICE: The signature(s) to this assignment must
correspond with the name(s) as written upon the
face of the within instrument in every particular,
without alteration or enlargement or any change
whatever. The signature(s) must be guaranteed by
an "eligible guarantor institution" that is a
member or participant in the Securities Transfer
Agents Medallion Program, the Stock Exchange
Medallion Program or the New York Stock Exchange,
Inc. Medallion Program.