SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------------
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
CONSOLIDATED EDISON, INC.
(exact name of registrant as specified in its charter)
New York 13-3965100
(State of incorporation) (I.R.S. Employer Identification No.)
4 Irving Place
New York, New York
10003
(Address of principal executive office) (Zip code)
Securities to be registered pursuant to Section 12(b) of the Act:
Name of each exchange on
Title of each class to which each class is to be
be so registered registered
7.25% Public Income NotES (PINES) The New York Stock
Exchange, Inc.
If this Form relates to the registration of a class of debt securities and
is effective upon filing pursuant to General Instruction A(c)(1), please check
the following box. / x /
If this Form relates to the registration of a class of debt securities and
is to become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A(c)(2), please check the following box. / /
Securities to be registered pursuant to Section 12(g) of the Act:
None
(Title of class)
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ITEM 1. Description of Registrant's Securities to be
Registered
The $325,000,000 aggregate principal amount of 7.25% Public Income NotES
(7.25% Debentures, Series 2002 A, the "Securities") to be registered hereby are
described in the Prospectus Supplement, dated April 3, 2002, relating to the
offering of the Securities, submitted on April 4, 2002, for filing with the
Commission pursuant to Rule 424(b) under the Securities Act of 1933, which
Prospectus are incorporated herein by reference. The Securities were registered
under the Securities Act of 1933 pursuant to a certain Registration Statement
on Form S-3 (No. 333-72264) relating to $600 million aggregate principal amount
of unsecured debt securities of Registrant.
ITEM 2. Exhibits
Exhibit
Number Description
1 Indenture, dated as of April 1, 2002, between Registrant and JPMorgan
Chase Bank, as Trustee ("Chase"). (Incorporated by reference to Exhibit
4 to Registrant's Registration Statement on Form S-3 (No. 333-72264 -
Commission File No. 1-14514).
2 Form of Security. (Incorporated by Reference to Exhibit 4 to
Registrant's Current Report on Form 8-K, dated April 3, 2002 -
Commission File No. 1-14514.)
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, Registrant has duly caused this registration statement to be signed on
its behalf by the undersigned, thereto duly authorized.
Dated: April 8, 2002 Consolidated Edison, Inc.
By: JOAN S. FREILICH
Joan S. Freilich
Executive Vice President and
Chief Financial Officer
CONSOLIDATED EDISON, INC.
AND
JPMORGAN CHASE BANK,
Trustee
INDENTURE
Dated as of April 1, 2002
Providing for the Issuance of
Debt Securities
CROSS REFERENCE SHEET*
Between
Provisions of Trust Indenture Act of 1939,
As Amended.
and
Indenture dated as of April 1, 2002 between
Consolidated Edison, Inc.
and JPMorgan Chase Bank,
Trustee
Section of Act Section of Indenture
310 (a) (1) and (2) 4.04 and 7.08
310 (a) (3) and (4) Not Applicable
310 (b) 7.07 and 7.09(b)
310 (c) Not Applicable
311 (a) and (b) 7.12
311 (c) Not Applicable
312 (a) 5.01 and 5.02 (a)
312 (b) and (c) 5.02 (b) and (c)
313 (a) 5.04 (a)
313 (b) Not Applicable
313 (c) 5.04(a)
313 (d) 5.04(b)
314 (a) 5.03
314 (b) Not Applicable
314 (c) (1) and (2) 15.06
314 (c) (3) Not Applicable
314 (d) Not Applicable
314 (e) 15.06
314 (f) Not Applicable
315 (a), (c) and (d) 7.01
315 (b) 6.07
315 (e) 6.08
316 (a) (1) 6.06
316 (a) (2) Omitted
316 (a) last paragraph 8.04
316 (b) 6.04
317 (a) 6.02
317 (b) 4.05 and 7.05
318 (a) 15.07
* This Cross Reference Sheet is not part of the Indenture.
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Page
TABLE OF CONTENTS*
PARTIES........................................................... 1
RECITALS......................................................... 1
ARTICLE ONE
Definitions
SECTION 1.01. Certain Terms Defined........................... 1
Board of Directors.............................. 1
Board Resolution................................ 2
Company......................................... 2
Company Order................................... 2
Corporation..................................... 2
Depositary...................................... 2
Event of Default................................ 2
Global Security................................. 2
Indenture....................................... 3
Interest........................................ 3
Interest Payment Date........................... 3
Officers' Certificate........................... 3
Opinion of Counsel.............................. 3
Original Issue Discount Security................ 3
Outstanding..................................... 3
Person.......................................... 4
Principal Office of the Company................. 4
Record Date..................................... 4
Registered Holder............................... 4
Responsible Officer............................. 5
Securityholder.................................. 5
Security Register............................... 5
Successor....................................... 5
Trustee......................................... 5
Trust Indenture Act of 1939..................... 5
Vice President.................................. 5
* The Table of Contents is not part of the Indenture.
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ARTICLE TWO
Issue, Description, Execution, Exchange and
Registration of Transfer of Securities
SECTION 2.01. Authentication, Delivery and Dating............. 6
SECTION 2.02. Forms Generally................................. 7
SECTION 2.03. Amount; Terms of Series......................... 8
SECTION 2.04. Execution...................................... 10
SECTION 2.05. Exchange, Registration and Registration of Transfer 10
SECTION 2.06. Temporary Securities............................. 12
SECTION 2.07. Mutilated, Destroyed, Lost and Stolen Securities.. 13
SECTION 2.08. Cancellation of Surrendered Securities;
Destruction Thereof.............................. 13
SECTION 2.09. Extension of Interest Payment Period............. 14
ARTICLE THREE
Redemption of Securities and Sinking Funds
SECTION 3.01. Applicability of Right of Redemption............. 14
SECTION 3.02. Election to Redeem; Notice of Redemption;
Partial Redemption............................... 14
SECTION 3.03. Payment of Securities Called for Redemption...... 15
SECTION 3.04. Applicability of Sinking Fund.................... 16
SECTION 3.05. Satisfaction of Mandatory Sinking Fund Payments
with Securities.................................. 16
SECTION 3.06. Redemption of Securities for Sinking Funds....... 16
ARTICLE FOUR
Particular Covenants of the Company
SECTION 4.01. Payment of Principal, Premium, if any, and Interest 17
SECTION 4.02. Office or Agency for Certain Purposes.............. 17
SECTION 4.03. Maintenance of Corporate Existence................. 18
SECTION 4.04. Appointments to Fill Vacancies in Trustee's Office. 18
SECTION 4.05. Provisions as to Paying Agent...................... 18
SECTION 4.06. Annual Officers' Certificate to Trustee............ 19
SECTION 4.07. Reports to Be Furnished Securityholders............ 19
SECTION 4.08. Further Assurances................................. 19
ARTICLE FIVE
Securityholders' Lists, Communications to Securityholders,
and Reports by the Company and the Trustee
SECTION 5.01. Company to Furnish Trustee Information
as to Names and Addresses of Securityholders.. 19
SECTION 5.02. Preservation of Information;
Communications to Securityholders............. 20
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SECTION 5.03. Reports by Company............................... 20
SECTION 5.04. Reports by Trustee............................... 20
ARTICLE SIX
Remedies of the Trustee and
Securityholders on Event of Default
SECTION 6.01. Events of Default Defined; Acceleration
of Maturity; Waiver of Default................. 21
SECTION 6.02. Collection of Indebtedness by Trustee;
Trustee May Prove Debt......................... 22
SECTION 6.03. Application of Proceeds.......................... 24
SECTION 6.04. Limitations on Suits by Securityholders.......... 24
SECTION 6.05. Powers and Remedies Cumulative; Delay or
Omission Not Waiver............................ 25
SECTION 6.06. Control by Securityholders; Waiver of Default.... 25
SECTION 6.07. Trustee to Give Notice of Defaults Known to It,
but May Withhold in Certain Circumstances...... 26
SECTION 6.08. Right of Court to Require Filing of Undertaking
to Pay Costs................................... 26
ARTICLE SEVEN
Concerning the Trustee
SECTION 7.01. Duties and Responsibilities of Trustee..............27
SECTION 7.02. Certain Rights of Trustee...........................28
SECTION 7.03. Trustee Not Responsible for Recitals, etc...........29
SECTION 7.04. Trustee and Others May Hold Securities..............29
SECTION 7.05. Moneys Held by Trustee or Paying Agent..............29
SECTION 7.06. Compensation of Trustee and Its Lien................30
SECTION 7.07. Disqualification; Conflicting Interests.............30
SECTION 7.08. Persons Eligible for Appointment as Trustee........ 31
SECTION 7.09. Resignation and Removal of Trustee;
Appointment of Successor......................... 31
SECTION 7.10. Acceptance of Appointment by Successor Trustee..... 32
SECTION 7.11. Merger, Conversion or Consolidation of Trustee..... 33
SECTION 7.12. Preferential Collection of Claims Against Company.. 33
ARTICLE EIGHT
Concerning the Securityholders
SECTION 8.01. Evidence of Action Taken by Securityholders..........33
SECTION 8.02. Proof of Execution of Instruments and of
Holding of Securities..............................34
SECTION 8.03 Registered Holders of Securities May Be
Treated As Owners..................................34
SECTION 8.04. Securities Owned by Company Deemed Not Outstanding...34
SECTION 8.05. Right of Revocation of Action Taken..................35
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ARTICLE NINE
Securityholders' Meetings
SECTION 9.01. Purposes for Which Securityholders' Meetings
May Be Called.................................... 35
SECTION 9.02. Call of Meetings by Trustee........................ 36
SECTION 9.03. Company and Securityholders May Call Meeting....... 36
SECTION 9.04. Persons Entitled to Vote at Meeting................ 36
SECTION 9.05. Determination of Voting Rights; Conduct and
Adjournment of Meeting........................... 36
SECTION 9.06. Counting Vote and Recording Action of Meeting...... 37
ARTICLE TEN
Supplemental Indentures
SECTION 10.01. Supplemental Indentures Without Consent
of Securityholders............................... 38
SECTION 10.02. Supplemental Indentures With Consent
of Securityholders............................... 39
SECTION 10.03. Effect of Supplemental Indentures.................. 40
SECTION 10.04. Notation on Securities in Respect of
Supplemental Indentures.......................... 40
SECTION 10.05. Opinion of Counsel to Be Given Trustee............. 40
ARTICLE ELEVEN
Consolidation, Merger and Sale
SECTION 11.01. Company May Consolidate or Merge, etc............. 41
SECTION 11.02. Conditions to Consolidation or Merger, etc........ 41
SECTION 11.03. Documents and Opinion to Be Furnished
to the Trustee................................... 41
ARTICLE TWELVE
Satisfaction and Discharge of Indenture;
Defeasance; Unclaimed Moneys
SECTION 12.01. Satisfaction and Discharge of Indenture......... 42
SECTION 12.02. Defeasance...................................... 42
SECTION 12.03. Application by Trustee of Funds Deposited for
Payment of Securities.......................... 43
SECTION 12.04. Repayment of Moneys Held by Paying Agent......... 43
SECTION 12.05. Return of Unclaimed Moneys....................... 43
ARTICLE THIRTEEN
Immunity of Incorporators, Stockholders,
Officers and Directors
SECTION 13.01. Personal Immunity from Liability of Incorporators,
Stockholders, etc.................... 44
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ARTICLE FOURTEEN
Subordination
SECTION 14.01. Securities Subordinated to Senior Debt............. 44
SECTION 14.02. Events of Subordination............................ 44
SECTION 14.03. Subrogation........................................ 46
SECTION 14.04. Obligation of Company Unconditional................ 46
SECTION 14.05. Payments on Subordinated Securities Permitted...... 46
SECTION 14.06. Effectuation of Subordination by Trustee........... 47
SECTION 14.07. Knowledge of Trustee............................... 47
SECTION 14.08. Trustee's Relation to Senior Indebtedness.......... 47
SECTION 14.09. Rights of Holders of Senior Indebtedness
Not Impaired..................................... 48
ARTICLE FIFTEEN
Miscellaneous Provisions
SECTION 15.01. Successors....................................... 48
SECTION 15.02. Benefits of Indenture Restricted to Parties
and Securityholders............................ 48
SECTION 15.03. Payments Due on Sundays and Holidays............. 48
SECTION 15.04. Notices and Demands on Company and Trustee....... 48
SECTION 15.05. Law of New York to Govern........................ 49
SECTION 15.06. Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein............ 49
SECTION 15.07. Conflict of any Provision of Indenture with Trust
Indenture Act of 1939......................... 49
SECTION 15.08. Counterparts..................................... 49
SECTION 15.09. Severability..................................... 49
TESTIMONIUM........................................................ 50
SIGNATURES AND SEALS............................................... 50
ACKNOWLEDGMENTS.................................................... 51
THIS INDENTURE, dated as of April 1, 2002, between
CONSOLIDATED EDISON, INC., a corporation organized and existing under the laws
of the State of New York (herein called the "Company"), and JPMORGAN CHASE BANK,
a banking corporation organized and existing under the laws of the State of New
York (herein called the "Trustee"):
WHEREAS, the Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance in one or more series
from time to time of its unsecured debentures, notes or other evidences of
indebtedness (hereinafter called the "Securities") and to provide the general
terms and conditions upon which the Securities are to be authenticated, issued
and delivered;
WHEREAS, the Trustee has power to enter into this Indenture
and to accept and execute the trusts herein created; and
WHEREAS, the Company represents that all acts and things
necessary to make the Securities, when executed by the Company and authenticated
and delivered by the Trustee as in this Indenture provided, and duly issued by
the Company, the valid, binding and legal obligations of the Company will, at
the time of such execution, authentication and delivery, have been done and
performed; that all acts and things necessary to constitute these presents a
valid indenture and agreement according to its terms have been done and
performed; that the execution of this Indenture by the Company has in all
respects been duly authorized; and that the issue hereunder of the Securities
will, at the time of the issue thereof, have in all respects been duly
authorized; and the Company, in the exercise of each and every legal right and
power in it vested, executes this Indenture and proposes to make, execute, issue
and deliver the Securities;
NOW, THEREFORE:
In consideration of the premises, of the purchase and
acceptance of the Securities by the holders thereof and of the sum of $1 duly
paid 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 Securities or of any series thereof, as follows:
ARTICLE ONE
Definitions
SECTION 1.01. Certain Terms Defined. The following terms
(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 Section. All other
terms used in this Indenture which are defined (either directly or by reference)
in the Trust Indenture Act of 1939 (except as herein otherwise expressly
provided or unless the context otherwise requires) shall have the meanings so
assigned to such terms.
Board of Directors:
- ------------------
The term "Board of Directors" shall mean the Board of
Directors of the Company or any duly authorized committee of such Board.
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Board Resolution:
- ------------------
The term "Board Resolution" means a copy of a resolution or
resolutions 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.
Company:
- -------
The term "Company" shall mean the person named as the Company
in the first paragraph of this instrument until a successor corporation shall
have become such pursuant to Article Eleven of this Indenture, and thereafter
"Company" shall mean such successor corporation.
Company Order:
- -------------
The term "Company Order" shall mean the written order, request
or instruction of the Company signed on behalf of the Company by its Chairman of
the Board, Vice Chairman, President or a Vice President and by its Treasurer or
an Assistant Treasurer or its Secretary or an Assistant Secretary.
Corporation:
- -----------
The term "corporation" shall mean any corporation, voluntary
association, joint stock company, business trust, limited liability company or
other similar organization.
Depositary:
- ----------
The term "Depositary" shall mean, with respect to the
Securities of any series issuable or issued in whole or in part in the form of
one or more Global Securities, the person designated as Depositary by the
Company pursuant to Section 2.03 until a successor Depositary shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Depositary" shall mean or include each person who is then a Depositary
hereunder, and if at any time there is more than one such person, "Depositary"
as used with respect to the Securities of any such series shall mean the
Depositary with respect to the Securities of that series.
Event of Default:
- ----------------
The term "Event of Default" shall mean any event specified in
Section 6.01, continued for the period of time, if any, and after the giving of
the notice, if any, therein designated.
Global Security:
- ---------------
The term "Global Security" shall mean a Security evidencing
all or part of a series of Securities issued to a Depositary for such series in
accordance with Section 2.01.
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Indenture:
- ---------
The term "Indenture" shall mean this instrument as originally
executed or as it may from time to time be supplemented and amended by one or
more indentures supplemental hereto pursuant to Article Ten hereof and shall
include the form and terms of particular series of Securities established as
contemplated in Section 2.03.
Interest:
- --------
The term "interest", when used with respect to an Original
Issue Discount Security which by its terms bears interest only after maturity,
shall mean interest payable after maturity.
Interest Payment Date:
- ---------------------
The term "interest payment date" when used with respect to any
Security or any installment of interest thereon shall mean the date specified in
such Security as the fixed date on which such installment of interest is due and
payable.
Officers' Certificate:
- ---------------------
The term "Officers' Certificate" shall mean a certificate
signed by the Chairman of the Board, Vice Chairman, President or any Vice
President and by the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary of the Company.
Opinion of Counsel:
- ------------------
The term "Opinion of Counsel" shall mean an opinion in writing
signed by legal counsel, who may be an employee of or of counsel to the Company.
Original Issue Discount Security:
- --------------------------------
The term "Original Issue Discount Security" shall mean (i) any
Security that provides for an amount less than the principal thereof to be due
and payable upon a declaration of acceleration of the maturity thereof pursuant
to Section 6.01; and (ii) any other Security which is issued as "original issue
discount" within the meaning of Section 1273(a) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder.
Outstanding:
- -----------
The term "outstanding", when used with reference to
Securities, shall, subject to the provisions of Section 8.04, mean, as of any
particular time, all Securities theretofore authenticated and delivered by the
Trustee under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
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(b) Securities or portions thereof for the payment or
redemption of which moneys, or as provided in Section 12.02 hereof,
direct obligations of the United States of America, 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 Securities are to be redeemed
prior to the maturity thereof, notice of such redemption shall have
been given as in Article Three provided, or provision satisfactory to
the Trustee shall have been made for giving such notice); and
(c) Securities which have been paid pursuant to Section 2.07
or in exchange for or in lieu of which other Securities shall have been
authenticated and delivered pursuant to Section 2.07;
provided, however, that in determining whether the holders of the requisite
principal amount of Outstanding Securities have taken any action, given any
request, demand, authorization, direction, notice, consent or waiver hereunder
or whether a quorum is present at a meeting of Securityholders, the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the maturity
thereof pursuant to Section 6.01.
Person:
- ------
The term "person" shall mean an individual, a corporation, a
partnership, a trust, an unincorporated organization or a government or any
agency or political subdivision thereof.
Principal Office of the Company:
- -------------------------------
The term "principal office of the Company" shall mean the
principal office of the Company as shall be specified from time to time in a
Company Order delivered to the Trustee. Any such Company Order may specify a
principal office of the Company for one or more purposes under this Indenture
and such Company Order or one or more other Company Orders may specify one or
more other principal offices of the Company for one or more other purposes under
this Indenture.
Record Date:
- -----------
The term "record date" shall mean, with respect to any
interest payable on any Security on any interest payment date, the close of
business on the date specified in such Security or, in the case of defaulted
interest, the close of business on any subsequent record date established as
provided in Section 2.02 (in each case whether or not such day is a business
day).
Registered Holder:
- -----------------
The term "registered holder", "Securityholder", "holder" or
other similar term shall mean the person or persons in whose name or names a
particular Security shall be registered upon the Security Register.
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Responsible Officer:
- -------------------
The term "responsible officer", when used with respect to the
Trustee, shall mean any officer of the Trustee assigned by the Trustee to
administer its corporate trust matters and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
Securityholder:
- --------------
The term "Securityholder" shall have the meaning specified
under the term "registered holder".
Security Register:
- -----------------
The term "Security Register" shall have the meaning specified
in Section 2.05.
Successor:
- ---------
The term "Successor" shall have the meaning specified in
Section 11.02.
Trustee:
- -------
The term "Trustee" shall mean the person named as Trustee in
the first paragraph of this instrument and, subject to the provisions of Article
Seven of this Indenture, shall also include its successors and assigns, and if
at any time there is more than one trustee, "Trustee" as used with respect to
the Securities of any series shall mean the trustee with respect to Securities
of that series.
Trust Indenture Act of 1939:
- ---------------------------
The term "Trust Indenture Act of 1939" shall mean the Trust
Indenture Act of 1939 as in force at the date as of which this instrument was
executed, except as provided in Section 10.02; provided, however, that in the
event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
Vice President:
- --------------
The term "Vice President", when used with respect to the
Company, shall mean any Vice President, any Senior Vice President, any Executive
Vice President and any Senior Executive Vice President of the Company.
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ARTICLE TWO
Issue, Description, Execution, Exchange and
Registration of Transfer of Securities
SECTION 2.01. Authentication, Delivery and Dating. At any time
and from time to time after the execution and delivery of this instrument, the
Company may deliver Securities of any series executed by the Company to the
Trustee for authentication. The Trustee shall thereupon authenticate and deliver
such Securities upon receipt of, and pursuant to, a Company Order, without any
further action by the Company. In authenticating such Securities, and accepting
the additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to Section
7.01) shall be fully protected in relying upon:
(a) a Board Resolution relating thereto and, if applicable, an
appropriate record of any action taken pursuant to such resolution,
certified by the Secretary or an Assistant Secretary of the Company;
(b) an executed supplemental indenture, if any;
(c) an Officers' Certificate, dated the date such
Officers' Certificate is delivered to the Trustee, prepared
in accordance with Section 15.06; and
(d) an Opinion of Counsel prepared in accordance with
Section 15.06, which shall also state:
(1) that the form and terms of such Securities have
been established by or pursuant to one or more Board
Resolutions, by a supplemental indenture as permitted by
Section 10.01(e), or by both such resolution or resolutions
and such supplemental indenture, in conformity with the
provisions of this Indenture;
(2) that the supplemental indenture, if any, when
executed and delivered by the Company and the Trustee, will
constitute a valid and legally binding obligation of the
Company; and
(3) that such Securities, 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, will constitute valid and legally binding
obligations of the Company, enforceable in accordance with
their terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles.
The Trustee shall have the right to decline to authenticate
and deliver any Securities under this Section if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
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If the Company shall establish pursuant to Section 2.03 that
the Securities of a series are to be issued in whole or in part in the form of
one or more Global Securities, then the Company shall execute and the Trustee
upon receipt of, and pursuant to, a Company Order, shall, in accordance with
this Section, authenticate and deliver one or more Global Securities that (i)
shall represent and shall be denominated in an amount equal to the aggregate
principal amount of the Outstanding Securities of such series to be represented
by one or more Global Securities, (ii) shall be registered in the name of the
Depositary for such Global Security or Global Securities or the nominee of such
Depositary, and (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instruction.
Each Depositary designated pursuant to Section 2.03 for a
Global Security must, at the time of its designation and at all times while it
serves as Depositary, be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and any other applicable statute or
regulation.
Each Security shall be dated the date of its authentication.
Notwithstanding the provisions of this Section and Section
2.03, if all Securities of a series are not to be originally issued at one time,
it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 2.03 or the Company Order, Board Resolution,
Officers' Certificate and Opinion of Counsel otherwise required pursuant to this
Section at or prior to the time of authentication of each Security of such
series if such documents are delivered at or prior to the authentication upon
original issuance of the first Security of such series to be issued. After any
such first delivery, any separate request by the Company that the Trustee
authenticate Securities of such series for original issue will be deemed to be a
certificate by the Company that all conditions precedent provided for in this
Indenture relating to the authentication and delivery of such Securities
continue to have been compiled with.
SECTION 2.02. Forms Generally. The Securities of each series
shall be issuable in registered form without coupons and shall be in
substantially the form as shall be established by or pursuant to one or more
Board Resolutions 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 or designation and such legends or
endorsements printed, lithographed or engraved thereon as the officers of the
Company executing the same may approve (execution thereof to be conclusive
evidence of such approval) and as are not inconsistent with the provisions of
this Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Securities may be listed, or to conform to usage. The
Securities shall be issued, except as otherwise provided with respect to any
series of Securities pursuant to Section 2.03, in the denomination of $1,000 and
any larger denomination which is an integral multiple of $1,000 approved by the
Company, such approval to be evidenced by the execution thereof.
The person in whose name any Security is registered at the
close of business on any record date with respect to any interest payment date
shall be entitled to receive the interest payable on such interest payment date,
notwithstanding the cancellation of such Security upon any transfer or exchange
subsequent to such record date and prior to such interest payment date, unless
such Security is redeemed on a date fixed for redemption after such record date
and prior
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to such interest payment date; provided, however, that if and to the
extent the Company shall fail to pay on any interest payment date the interest
due on such date, such defaulted interest shall be paid to the persons in whose
names outstanding Securities are registered at the close of business on the
tenth day preceding the date of payment of such defaulted interest or, at the
election of the Company, to the persons in whose names outstanding Securities
are registered on a subsequent record date established by notice given by mail
by or on behalf of the Company to the holders of such Securities not less than
10 days preceding such subsequent record date, which subsequent record date
shall precede by at least 10 days the date of payment of such defaulted
interest. Such notice shall be given to the persons in whose names such
outstanding Securities are registered at the close of business on the fifth
business day next preceding the date of the mailing of such notice.
Except as otherwise provided with respect to any series of
Securities pursuant to Section 2.03, interest on the Securities of each series
shall be computed on the basis of a 360-day year consisting of twelve 30-day
months.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
The Trustee's certificate of authentication on all Securities
shall be in substantially the following form:
This is one of the Securities of the series
designated herein issued under the Indenture described herein.
JPMORGAN CHASE BANK,
as Trustee
By________________________________
Authorized Officer
SECTION 2.03. Amount; Terms of Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is not limited.
The Securities may be issued in one or more series. There
shall be established by or pursuant to one or more Board Resolutions, and set
forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series:
(a) the title of the Securities of the series (which shall
distinguish the Securities of the series from the Securities of all
other series, except to the extent that additional Securities of an
existing series are being issued);
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(b) any limit upon the aggregate principal amount of the
Securities of the series which may be outstanding under this Indenture
(except as otherwise provided in Section 2.07);
(c) the date or dates on which the principal of and
premium, if any, on the Securities of the series is payable;
(d) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method by which such rate or rates
shall be determined, the date or dates from which such interest shall
accrue, or the method by which such date or dates shall be determined,
the interest payment dates on which any such interest shall be payable
and the record dates for the determination of holders to whom interest
of any interest payment date is payable and the basis of computation of
interest (if other than as provided in Section 2.02);
(e) if the amount of payments of the principal of, premium, if
any, or interest, if any, on the Securities of the series may be
determined with reference to an index, formula, or other method, the
manner in which such amounts shall be determined;
(f) the place or places where the principal of, premium,
if any, and interest on Securities of the series shall
be payable;
(g) the price or prices at which, the period or periods within
which and the terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the Company;
(h) the obligation, if any, of the Company to redeem, purchase
or repay Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a holder thereof and the price
or prices at which, the period or periods within which and the terms
and conditions upon which Securities of the series shall be redeemed,
purchased or repaid, in whole or in part, pursuant to such obligation;
(i) whether the Securities of the series shall be issued in
whole or in part in the form of one or more Global Securities and, in
such case, the Depositary for such Global Security or Global
Securities;
(j) if other than the principal amount thereof, the portion of
the principal amount of any Securities which shall be payable upon
declaration of acceleration of maturity thereof pursuant to Section
6.01 or provable in bankruptcy pursuant to Section 6.02;
(k) if other than denomination of $1,000 or any integral
multiple thereof, the denominations in which Securities of the
series shall be issuable;
(l) if the provisions of Section 12.02 are to apply to
the Securities of the series, a statement indicating the same;
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(m) if the provisions of Section 2.09 are to apply to
the Securities of the series, the terms upon which the Company may
elect to not pay interest on an interest payment date;
(n) if the provisions of Article Fourteen are to apply
to the Securities of the series, a statement indicating the same; and
(o) any other terms of the Securities of the series, including
additional covenants of the Company and specific deletions in the
Events of Default applicable to the series from those set forth in
Section 6.01 (which terms shall not be inconsistent with the provisions
of this Indenture or adversely affect the rights of the holders of any
other series of Securities then outstanding).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided by
or pursuant to any such Board Resolution, and set forth in such Officers'
Certificate, or in any such indenture supplemental hereto.
SECTION 2.04. Execution. The Securities shall be signed on
behalf of the Company by the Chairman or President or any Vice President and by
the Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary of the Company, under its corporate seal. Such signatures may be
manual or facsimile signatures of the present or any future such authorized
officers and may be imprinted or otherwise reproduced on the Securities. The
seal of the Company may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the Securities.
Only such Securities as shall bear thereon a certificate of
authentication substantially in the form hereinbefore recited, executed by the
Trustee, shall be entitled to the benefits of this Indenture or be valid or
obligatory for any purpose. Such certificate by the Trustee upon any Security
executed by the Company shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered hereunder.
In case any officer of the Company who shall have signed any
of the Securities either manually or by facsimile signature shall cease to be
such officer before the Securities so signed shall have been authenticated and
delivered by the Trustee, or disposed of by the Company, such Securities
nevertheless may be authenticated and delivered or disposed of as though the
person who signed such Securities had not ceased to be such officer of the
Company; and any Security may be signed on behalf of the Company by such person
as, at the actual date of the execution of such Security, shall be one of the
proper officers of the Company, although at the date of the execution of this
Indenture any such person was not such officer.
SECTION 2.05. Exchange, Registration and Registration of
Transfer. The Company shall keep, at the office or agency to be maintained by
the Company in accordance with Section 4.02, a register or registers (herein
sometimes referred to collectively as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of each series of the Securities and for the registration
of transfers of Securities of each series as in this Article provided. The
Security Register shall be in written form or convertible into written form
without unreasonable delay, and shall be open for inspection by the Trustee at
all reasonable times. Subject to the provisions of the last paragraph
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of this Section 2.05, upon surrender for registration of transfer of any
Security of any series at the office or agency maintained in accordance with
Section 4.02, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of the same series and of like tenor, in any authorized
denominations and of a like aggregate principal amount and maturity.
At the option of the holder thereof, Securities of any series
(except a Global Security) may be exchanged for other Securities of the same
series and of like tenor, of any authorized denominations and of a like
aggregate principal amount and maturity, upon surrender of the Securities to be
exchanged at the office or agency maintained in accordance with Section 4.02.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the holder making the exchange is entitled to receive.
Notwithstanding any other provision of this Section, unless
and until it is exchanged in whole or in part for Securities in definitive form,
a Global Security representing all or a portion of the Securities of a series
may not be transferred except as a whole by the Depositary for such series to a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee
to a successor Depositary for such series or a nominee of such successor
Depositary.
If at any time the Depositary for the Securities of a series
notifies the Company that it is unwilling or unable to continue as Depositary
for the Securities of such series or if at any time the Depositary for the
Securities of such series shall no longer be eligible under Section 2.01, the
Company shall appoint a successor Depositary with respect to the Securities of
such series. If a successor Depositary for the Securities of such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such ineligibility, the Company's election pursuant to
Section 2.03(i) shall no longer be effective with respect to the Securities of
such series and the Company will execute, and the Trustee, upon receipt of, and
pursuant to a Company Order will authenticate and deliver Securities of such
series in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security or Global Securities representing such
series in exchange for such Global Security or Global Securities.
The Company may at any time in its sole discretion determine
that the Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by such Global Security or Global
Securities. In such event the Company will execute, and the Trustee, upon
receipt of, and pursuant to, a Company Order will authenticate and deliver
Securities of such series in definitive form and in aggregate principal amount
equal to the principal amount of the Global Security or Global Securities
representing such series in exchange for such Global Security or Global
Securities.
If specified by the Company pursuant to Section 2.03 with
respect to a series of Securities, the Depositary for such series of Securities
may surrender a Global Security for such series of Securities in exchange in
whole or in part for Securities of such series 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 deliver, without service
charge,
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(i) to each person specified by such Depositary a new
Security or Securities of the same series, in definitive form,
of any authorized denomination as requested by such person in
aggregate principal amount equal to and in exchange for such
person's beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security in a
denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the
aggregate principal amount of Securities delivered to holders
thereof pursuant to the immediately preceding clause (i) of
this Section.
Upon exchange of a Global Security for Securities in
definitive form, such Global Security shall be cancelled by the Trustee.
Securities issued in exchange for a Global Security pursuant to this Section
shall be registered in such names and in such authorized denominations as the
Depositary for such Global Security shall instruct the Trustee. The Trustee
shall deliver such Securities to the persons in whose names such Securities are
so registered.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration or transfer or exchange.
All Securities presented or surrendered for registration of
transfer, exchange or payment shall (if so required by the Company or the
Trustee) 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 registered holder or by his attorney duly authorized in
writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto.
The Company shall not be required (a) to issue, register the
transfer of or exchange Securities of any series for a period of 15 days next
preceding any selection of Securities of such series to be redeemed, or (b) to
register the transfer of or exchange any Security or portion thereof called or
selected for redemption.
SECTION 2.06. Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company may execute and the Trustee
shall authenticate and deliver temporary Securities of such series (printed,
lithographed or typewritten) of any authorized denomination, and substantially
in the form of the definitive Securities of such series, but with such omission,
insertions and variations as may be appropriate for temporary Securities, all as
may be determined by the Company. Temporary Securities may be issued without a
recital of specific redemption prices and may contain such reference to any
provisions of this Indenture as may be appropriate. Every temporary Security
shall be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive
Securities of such series. Without unnecessary delay the Company will execute
and will furnish definitive Securities of each series and thereupon any or all
temporary Securities of such series
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may be surrendered in exchange therefor, at the principal office of the Company,
and, subject to Section 2.05 hereof, the Company shall execute and the Trustee
shall authenticate and deliver in exchange for such temporary Securities an
equal aggregate principal amount of definitive Securities of such series of
authorized denominations. Until so exchanged, the temporary Securities shall be
entitled to the same benefits under this Indenture, and shall be subject to the
same provisions hereof (except as provided in this Section), as definitive
Securities of such series authenticated and delivered hereunder.
SECTION 2.07. Mutilated, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security shall become mutilated
or be destroyed, lost or stolen, the Company in the case of a mutilated Security
shall, and in the case of a destroyed, lost or stolen Security in its discretion
may, execute, and upon the Company's request the Trustee shall authenticate and
deliver, a new Security of the same series and bearing a number not
contemporaneously outstanding, in exchange and in substitution for the mutilated
Security, or in lieu of and in substitution for the Security so destroyed, lost
or stolen. The applicant for a substitute Security shall first furnish to the
Company and to the Trustee 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,
the applicant shall also first furnish to the Company and to the Trustee
evidence to their satisfaction of the destruction, loss or theft of such
Security and of the ownership thereof. The Trustee may authenticate any such
substitute Security and deliver the same upon the written request or
authorization of the Company. Upon the issue of any substitute Security, 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. If any Security that has become, or is about to
become, due and payable is mutilated, or is destroyed, lost or stolen, the
Company may, instead of issuing a substitute Security, pay or authorize the
payment of the same (without surrender thereof except in the case of a mutilated
Security) if the applicant for such payment shall furnish to the Company and to
the Trustee such security or indemnity as they may require to save each of them
harmless, and, in case of destruction, loss or theft, evidence to the
satisfaction of the Company and the Trustee of the destruction, loss or theft of
such Security and of the ownership thereof.
Every substitute Security issued pursuant to this Section
shall constitute an additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Security 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 Securities of the same series duly issued hereunder. All
Securities shall be held and owned upon the express condition that the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities, and shall preclude any and all
other rights or remedies, notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.08. Cancellation of Surrendered Securities;
Destruction Thereof. All Securities surrendered for the purpose of payment,
redemption, exchange or registration of transfer or for credit against any
sinking fund payment, shall, if surrendered to the Company or any paying agent,
promptly be delivered to the Trustee for cancellation, or, if surrendered to the
Trustee, shall be cancelled by it, and no Securities shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this
Indenture. Upon the request of the Company, the Trustee shall deliver to the
Company cancelled Securities held by the Trustee, or, in the absence of such
request, the Trustee shall dispose of same in accordance with its standard
- 14 -
procedures and deliver a certificate of such disposition to the Company. If the
Company shall acquire any of the Securities, however, such acquisition shall not
operate as a satisfaction of the indebtedness represented by such Securities
unless and until the same are surrendered to the Trustee for cancellation.
SECTION 2.09. Extension of Interest Payment Period. With
respect to Securities of any series as to which, pursuant to Section 2.03(m), it
has been established that this Section 2.09 applies, subject to such terms as
may be established pursuant to Section 2.03(m), the Company may at any time and
from time to time, so long as the Company is not in default in the payment of
interest on such Securities as and when the same shall become due and payable,
elect to not pay interest on an interest payment date, and such election shall
not be an Event of Default with respect to the Securities of any series.
ARTICLE THREE
Redemption of Securities and Sinking Funds
SECTION 3.01. Applicability of Right of Redemption. Redemption
of Securities (other than pursuant to a sinking fund or analogous provision)
permitted by the terms of any series of Securities shall be made in accordance
with such terms and Sections 3.02 and 3.03; provided, however, that if any such
terms of a series of Securities shall conflict with any provision of this
Article, the terms of such series shall govern.
SECTION 3.02. Election to Redeem; Notice of Redemption;
Partial Redemption. The election of the Company to redeem any Securities of any
series shall be evidenced by or pursuant to a Board Resolution. In case the
Company shall desire to exercise such right to redeem all, or, as the case may
be, any part of the Securities of any series in accordance with the right
reserved so to do, it shall give notice of such redemption to holders of the
Securities to be redeemed as hereinafter in this Section provided.
Notice of redemption to the holders of Securities to be
redeemed as a whole or in part shall be given by mailing of a notice of such
redemption not less than 30 nor more than 60 days prior to the date fixed for
redemption to the registered holders of Securities to be redeemed in whole or in
part at their last addresses as they shall appear upon the Security Register.
Such mailing shall be by first-class mail postage prepaid. The notice if mailed
in the manner herein provided shall be conclusively presumed to have been duly
given whether or not the registered holder receives the notice. In any case, the
failure to give such notice by mail, or any defect in such notice, to the
registered holder of any Security designated for redemption in whole or in part
shall not affect the validity of the proceedings for redemption of any other
Security.
Each such notice of redemption shall specify the date fixed
for redemption and the price at which Securities are to be redeemed, shall state
that the conditions precedent to such redemption, if any, have occurred and
describe the same, and shall state that payment of the redemption price of the
Securities to be redeemed, together with accrued interest thereon to the date
fixed for redemption (except that if such redemption date is an interest payment
date, the interest due on such date with respect to a particular Security shall
be payable to the holder of such Security on the record date for such interest
payment date), will be made at the office or
- 15 -
agency to be maintained by the Company in accordance with Section 4.02 upon
presentation and surrender of such Securities and that from and after said date
interest thereon will cease to accrue. If less than all the Securities of a
series are to be redeemed, the notice to each registered holder of Securities to
be redeemed shall identify such registered holder's Securities to be redeemed as
a whole or in part. In case any Security is to be redeemed in part only, the
notice which relates to such Securities shall state the portion of the principal
amount to be redeemed, and that on and after the redemption date, upon surrender
or such Security, a new Security or Securities of the same series in principal
amount equal to the unredeemed portion thereof will be issued.
To the extent that the Securities of any series have different terms, the
Company shall designate the Securities to be redeemed if less than all of the
series is to be redeemed. If less than all the Securities of a series having the
same terms are to be redeemed, the Company shall give the Trustee, not less than
45 days (or such lesser number of days as the Trustee shall approve) prior to
the date fixed by the Company for the redemption of Securities, written notice
of the aggregate amount of the Securities to be redeemed, and thereupon the
Trustee shall select, in such manner as in its sole discretion it shall deem
appropriate and fair, the Securities of such series or portions thereof to be
redeemed, and shall thereafter promptly notify the Company and any paying agent
in writing of the Securities of such series of portions thereof to be redeemed.
Unless otherwise provided in the terms of a particular series of Securities, the
portions of the principal of Securities so selected for partial redemption shall
be equal to the minimum authorized denomination of the Securities of such
series, or an integral multiple thereof, and the principal amount which remains
outstanding shall not be less than the minimum authorized denomination for
Securities of such series.
Any notice of redemption to be mailed by the Company pursuant
to this Section may be mailed, at the Company's direction, by the Trustee in the
name and at the expense of the Company.
SECTION 3.03. Payment of Securities Called for Redemption. If
notice of redemption shall have been given in the manner provided in Section
3.02, the Securities or portions of Securities specified in such notice shall
become due and payable on the date and at the place stated in such notice at the
applicable redemption price, together with interest accrued thereon to the date
fixed for redemption (except that if such redemption date is an interest payment
date the interest due on such date shall be payable to the holder of such
Security on the record date for such interest payment date), and on and after
such date of redemption (unless the Company shall default in the payment of such
Securities or portions thereof at the redemption price, together with interest
accrued thereon to the date fixed for redemption) interest on the Securities or
portions of Securities so called for redemption shall cease to accrue, and such
Securities and portions of Securities shall be deemed not to be outstanding
hereunder and shall not be entitled to any benefit under this Indenture except
to receive payment of the redemption price, together with accrued interest
thereon to the date fixed for redemption. On presentation and surrender of such
Securities on or after said date at said place of payment in said notice
specified, the said Securities or specified portions thereof shall be paid and
redeemed by the Company at the applicable redemption price, together (subject to
the right of the holder on the record date if such redemption date is an
interest payment date) with interest accrued thereon to the date fixed for
redemption.
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Upon presentation and surrender of any Security which is to be
redeemed in part only, the Company shall execute and the Trustee shall
authenticate and deliver to the holder thereof, at the expense of the Company, a
new Security or Securities of the same series of authorized denominations in
principal amount equal to the unredeemed portion of the Security so surrendered.
SECTION 3.04. Applicability of Sinking Fund. Redemption of
Securities permitted or required pursuant to a sinking fund for the retirement
of Securities of a series by the terms of such series of Securities shall be
made in accordance with such terms of such series of Securities and this
Article; provided, however, that if any such terms of a series of Securities
shall conflict with any provision of this Article, the terms of such series
shall govern.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for the by terms of Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of Securities of
any series, the cash amount of any mandatory sinking fund payment may be subject
to reduction as provided in Section 3.05.
SECTION 3.05. Satisfaction of Mandatory Sinking Fund Payments
with Securities. Subject to Section 3.06, in lieu of making all or any part of
any mandatory sinking fund payment with respect to any Securities of a series in
cash, the Company may at its option (a) deliver to the Trustee Securities of
that series theretofore purchased or otherwise acquired by the Company, or (b)
receive credit for the principal amount of Securities of that series which have
been previously delivered to the Trustee by the Company or redeemed either at
the election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the
terms of such Securities; provided that such Securities have not been previously
so credited. Such Securities shall be received and credited for such purpose by
the Trustee at the redemption price specified in such Securities for redemption
through operation of the sinking fund and the cash amount of such mandatory
sinking fund payment shall be reduced accordingly.
SECTION 3.06. Redemption of Securities for Sinking Funds. Not
less than 60 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee a Company Order specifying
the amount of the next ensuing sinking fund payment for that series pursuant to
the terms of that series, the portion thereof, if any, which is to be satisfied
by payment of cash and the portion thereof, if any, which is to be satisfied
through delivery and/or crediting of Securities of that series pursuant to
Section 3.05 (which Securities will, if not previously delivered, accompany such
Company Order) and whether the Company intends to exercise its right to make a
permitted optional sinking fund payment with respect to such series. Such
Company Order shall be irrevocable, and upon its delivery the Company shall be
obligated to make the cash payment or payments therein referred to, if any,
prior to such sinking fund payment date. In the case of the failure of the
Company to deliver such Company Order, the sinking fund payment due with respect
to the next sinking fund payment date for that series of Securities shall be
paid entirely in cash and shall be sufficient to redeem the principal amount of
such Securities subject to a mandatory sinking fund payment without the option
to deliver or credit Securities as provided in Section 3.05 and without the
right to make any optional sinking fund payment with respect to such series.
- 17 -
Any sinking fund payment or payments (mandatory or optional)
made in cash, plus any unused balance of any preceding sinking fund payments
made in cash, which shall equal or exceed $100,000 (or a lesser sum if the
Company shall so request) with respect to the Securities of any particular
series shall be applied by the Trustee, a paying agent or the Company, if it
acts as its own paying agent, on the sinking fund payment date next following
the date of such payment to the redemption of such Securities at the redemption
price specified in such Securities for operation of the sinking fund, together
with accrued interest to the sinking fund payment date. Any sinking fund moneys
not so applied or allocated to the redemption of Securities shall be added to
the next cash sinking fund payment received by the Trustee, such paying agent or
the Company for such series and, together with such payment, shall be applied in
accordance with the provisions of this Section. Any and all sinking fund moneys
with respect to the Securities of any particular series held by the Trustee,
such paying agent or the Company on the last sinking fund payment date with
respect to Securities of such series and not held for the payment or redemption
of particular Securities shall be applied by the Trustee, such paying agent or
the Company, together with other moneys, if necessary, to be deposited
sufficient for the purpose, to the payment of principal of such Securities at
maturity.
Not more than 60 days and not less than 45 days prior to each
sinking fund payment date the Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in accordance with Section 3.02. The Company
shall cause notice of the redemption thereof to be given not less than 30 nor
more than 60 days prior to the sinking fund payment date in the manner provided
in Section 3.02, except that the notice of redemption shall also state that the
Securities of such series are being redeemed by operation of the sinking fund
and the sinking fund payment date. Such notice having been duly given, the
redemption of such Securities shall be made on the sinking fund payment date
upon the terms and in the manner stated in Section 3.03.
ARTICLE FOUR
Particular Covenants of the Company
SECTION 4.01. Payment of Principal, Premium, if any, and
Interest. The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay or cause to be paid the
principal of and premium, if any, and interest, if any, on each of the
Securities of that series at the times and places and in the manner provided
herein and in the Securities of that series.
SECTION 4.02. Office or Agency for Certain Purposes. The
Company will maintain an office or agency (or offices or agencies) where the
Securities may be presented for registration of transfer and exchange as in this
Indenture provided, and where notices and demands to or upon the Company in
respect of the Securities or of this Indenture may be served and where the
Securities may be presented for payment. The principal office of the Company
shall be such office or agency unless the Company shall maintain some other
office or agency for such purposes and shall give the Trustee and the registered
holders of the Securities written notice of the location thereof.
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SECTION 4.03. Maintenance of Corporate Existence. The Company
will preserve its corporate existence, but this covenant shall not require the
Company to continue its corporate existence in the event of a consolidation or
merger of the Company in accordance with the provisions of Article Eleven hereof
as a result of which the Company shall lose its corporate identity, or in the
event of a sale or conveyance of the property of the Company as an entirety or
substantially as an entirety in accordance with the provisions of said Article
Eleven.
SECTION 4.04. 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 7.09, a Trustee, so
that there shall at all times be a Trustee hereunder.
SECTION 4.05. Provisions as to Paying Agent. (a) If the
Company shall act as its own paying agent with respect to any series of
Securities, it will, on or before each due date of the principal of or premium,
if any, or interest, if any, on the Securities of that series, set aside,
segregate and hold in trust for the benefit of the holders of such Securities or
of the Trustee, as the case may be, a sum sufficient to pay such principal or
premium, if any, or interest so becoming due and will notify the Trustee of any
failure to take such action and of any failure by the Company (or by any other
obligor on the Securities of that series) to make any payment of the principal
of or premium, if any, or interest on the Securities of such series when the
same shall be due and payable.
(b) Whenever the Company shall have one or more paying agents,
other than the Company, for any series of Securities, it will, on or before each
due date of the principal of or premium, if any, or interest, if any, on any
Securities of that series, deposit with a paying agent a sum sufficient to pay
the principal and premium, if any, or interest so becoming due, such sum to be
held in trust for the benefit of the holders of such Securities, and (unless
such paying agent is the Trustee) the Company will notify the Trustee of such
action or the failure to take such action.
(c) If the Company shall appoint a paying agent other than the
Trustee or the Company with respect to any series of Securities, it will cause
such paying agent to execute and deliver to the Trustee an instrument in which
such agent shall agree with the Trustee, subject to this Section that such agent
will:
(1) hold all sums held by it as such agent for the
payment of the principal of or premium, if any, or interest on the
Securities of such series (whether such sums have been paid to it by
the Company or by any other obligor on the Securities of such series)
in trust for the benefit of the holders of the Securities of such
series or of the Trustee, as the case may be;
(2) give the Trustee notice of any default by the
Company (or by any other obligor on the Securities of such series) in
the making of any payment of the principal of or premium, if any, or
interest on the Securities of such series when the same shall be due
and payable; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such paying agent.
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(d) Anything in this Section to the contrary notwithstanding,
the Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by it, or by any paying agent hereunder, as
required by this Section, such sums to be held by the Trustee upon the trusts
herein contained.
(e) Anything in this Section to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this Section is subject to
Sections 12.04 and 12.05.
SECTION 4.06. Annual Officers' Certificate to Trustee. The
Company will deliver to the Trustee prior to November 1 in each year, an
Officers' Certificate stating that in the course of the performance by the
signers of their duties as officers of the Company they would normally obtain
knowledge of any default by the Company in the performance of any covenants
contained in Sections 4.03 and 11.02, stating whether or not they have obtained
knowledge of any such default and, if so, specifying each such default of which
the signers have knowledge and the nature thereof.
SECTION 4.07. Reports to Be Furnished Securityholders. The
Company will transmit or cause to be transmitted to the Securityholders, as soon
as practicable after the mailing of such material to its stockholders, copies of
all annual financial reports distributed to its stockholders generally. Reports
pursuant to this Section shall be transmitted by mail to all registered holders
of Securities, as the names and addresses of such holders appear upon the
Security Register.
SECTION 4.08. Further Assurances. From time to time whenever
reasonably demanded by the Trustee, the Company will make, execute and deliver
or cause to be made, executed and delivered any and all such further and other
instruments and assurances as may be reasonably necessary or proper to carry out
the intention or facilitate the performance of the terms of this Indenture.
ARTICLE FIVE
Securityholders' Lists, Communications to Securityholders,
and Reports by the Company and the Trustee
SECTION 5.01. Company to Furnish Trustee Information as
to Names and Addresses of Securityholders. The Company shall furnish or cause
to be furnished to the Trustee:
(a) on June 15 and December 15 in each year (beginning with
June 15, 2002), a list in such form as the Trustee may reasonably require of the
names and addresses of the holders of each series of Securities as of a date not
more than 15 days prior to the time such list is furnished, and
(b) at such other times as the Trustee may request in writing
within 30 days after receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished, provided that, if and so long as the Trustee is the sole
Security registrar, no such list need be furnished.
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SECTION 5.02. Preservation of Information; Communications to
Securityholders. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the holders of each series of
Securities received by it in the capacity of Security registrar and the names
and addresses of holders of each series of Securities contained in the most
recent list furnished to it under Section 5.01. The Trustee may destroy any such
list upon receipt of a new list so furnished.
(b) The rights of Securityholders to communicate with other
Securityholders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the Trustee, shall be
as provided by the Trust Indenture Act of 1939.
(c) Each and every holder of Securities, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any paying agent or other agent of either of them
shall be held accountable by reason of the disclosure of any such information as
to the names and addresses of the holders of Securities made pursuant to the
Trust Indenture Act of 1939, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made pursuant to the Trust
Indenture Act of 1939.
SECTION 5.03. Reports by Company. The Company shall file with
the Trustee and the Securities and Exchange Commission, and transmit to
Securityholders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act of
1939 at the times and in the manner provided pursuant to such Act; provided that
any such information, documents or reports required to be filed with said
Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended, shall be filed with the Trustee within 15 days after the same
is so required to be filed with said Commission. Delivery of any information,
documents and reports by the Company to the Trustee pursuant to the provisions
of this Section 5.03 is for informational purposes only and the Trustee's
receipt of same shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
SECTION 5.04. Reports by Trustee. (a) The Trustee shall
transmit to Securityholders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act of
1939 at the times and in the manner provided pursuant thereto. If required by
Section 313(a) of the Trust Indenture Act of 1939, the Trustee shall, within
sixty days after each October 15 following the execution and delivery of this
instrument deliver to Securityholders a brief report, dated as of such October
15, which complies with the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with each stock
exchange upon which any Securities are listed and also with the Securities and
Exchange Commission. If the Company lists the Securities of any series on any
stock exchange, it will promptly so notify the Trustee.
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ARTICLE SIX
Remedies of the Trustee and Securityholders on Event of Default
SECTION 6.01. Events of Default Defined; Acceleration of
Maturity; Waiver of Default. In case one or more of the following shall have
occurred and be continuing with respect to the Securities of any series, it
shall be an event of default of such series (unless it is specifically deleted
in a supplemental indenture or Board Resolution under which such series of
Securities is issued or has been modified in any such supplemental indenture),
that is to say:
(a) default in the payment of any installment of interest upon
any Security of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or premium, if
any, on any Security of such series as and when the same shall become
due and payable either at maturity, upon redemption, by declaration or
otherwise; or
(c) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the
Company contained in the Securities of such series or in this Indenture
(other than a covenant or agreement which has been expressly included
in the Securities or in this Indenture solely for the benefit of a
series of Securities other than that series) for a period of 60 days
after the date on which written notice of such failure, requiring the
Company to remedy the same and stating that such notice is a "Notice of
Default" hereunder, shall have been given to the Company by the
Trustee, or to the Company and the Trustee by the holders of a least
25% in aggregate principal amount of the Securities of such series at
the time outstanding; or
(d) if a decree or order for relief shall be entered by a
court of competent jurisdiction in respect of the Company in an
involuntary case under any applicable bankruptcy, insolvency or other
similar law nor or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Company or of a major part of its property, or
ordering the winding up or liquidation of the Company's affairs, and
such decree or order shall remain unstayed and in effect for a period
of 60 consecutive days; or
(e) if the Company shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law nor or hereafter
in effect, or the Company shall consent to the entry by order of a
court of competent jurisdiction of a decree or order in respect of the
Company in an involuntary case or proceeding under any applicable
bankruptcy, insolvency or other similar law nor or hereafter in effect
or to the commencement of any bankruptcy or insolvency proceeding
against the Company; or
(f) if the Company shall make an assignment for the benefit of
its creditors, or shall admit in writing its inability to pay its debts
generally as they become due, or shall consent to the appointment of a
receiver or liquidator or trustee or assignee in bankruptcy or
insolvency of it or of a major part of its property; or
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(g) the occurrence of any other Event of Default with respect
to Securities of such series as provided in a supplemental indenture
applicable to such series of Securities pursuant to Section 10.01(d);
then and in each and every such case, unless the principal of the Securities of
such series shall have already become due and payable, either the Trustee or the
holders of not less than 25% in aggregate principal amount of the Securities of
such series then outstanding hereunder, by notice in writing to the Company (and
to the Trustee if given by Securityholders), may declare the principal (or, if
the Securities of such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of that series)
of all the Securities of such series to be due and payable immediately, and upon
any such declaration the same shall become and shall be immediately due and
payable, anything in this Indenture or in the Securities of such series
contained to the contrary notwithstanding. This provision, however, is subject
to the condition that if, at any time after the principal of the Securities of
such series shall have been so declared due and payable, and before any judgment
or decree for the payment of the moneys due shall have been obtained or entered
as hereinafter provided, the Company shall pay or shall deposit with the Trustee
a sum sufficient to pay all matured installments of interest upon all the
Securities of such series and the principal of and premium, if any, on any and
all Securities of such series which shall have become due otherwise than by
declaration (with interest on overdue installments of interest, to the extent
legally enforceable under applicable law, and on such principal of and premium,
if any, on each Security of such series at the rate borne by such Security to
the date of such payment or deposit) and the expenses of the Trustee, and
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
all other amounts due the Trustee under Section 7.06, and any and all defaults
under this Indenture, other than the nonpayment of principal on Securities of
such series which shall have become due by declaration, shall have been remedied
- -- then, and in every such case the holders of a majority in aggregate principal
amount of the Securities of such series then outstanding, by written notice to
the Company and to the Trustee, may on behalf of the holders of all of the
Securities of such series waive all defaults and rescind and annul such
declaration and its consequences; but no such waiver or rescission and annulment
shall extend to or shall affect any subsequent default, or shall impair any
right consequent thereon.
In case the Trustee shall have proceeded to enforce any right
under this Indenture for the holders of Securities of any series and such
proceedings shall have been discontinued or abandoned because of such rescission
or annulment or for any other reason or shall have been determined adversely to
the Trustee, then and in every such case the Company, the Trustee and the
holders of the Securities of such series shall be restored respectively to their
several positions and rights hereunder, and all rights, remedies and powers of
the Company, the Trustee and the holders of the Securities of such series shall
continue as though no such proceedings had been taken.
The Company and the Trustee may, to the extent provided in
Section 10.01, enter into one or more indentures supplemental hereto with
respect to any series of the Securities which may provide for additional,
different or fewer Events of Default with respect to such series of Securities.
SECTION 6.02. Collection of Indebtedness by Trustee; Trustee
May Prove Debt. The Company covenants that (1) in case default shall be made in
the payment of any installment of interest on any of the Securities, as and when
the same shall become due and
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payable, and such default shall have continued for
a period of 30 days, or (2) in case default shall be made in the payment of the
principal of or premium, if any, on any of the Securities when and as the same
shall have become due and payable, whether upon maturity of the Securities or
upon redemption or upon declaration or otherwise -- then, upon demand of the
Trustee, the Company will pay to the Trustee, for the benefit of holders of such
Securities, the whole amount that then shall have become due and payable on such
Securities for principal and premium, if any, and interest, with interest upon
the overdue principal and premium, if any, of each such Security and (to the
extent legally enforceable under applicable law) upon installments of interest,
at the rate borne by such Security; and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including a reasonable compensation to the Trustee, its agents, attorneys and
counsel, and any expenses or liabilities incurred by the Trustee hereunder other
than through its negligence or bad faith and all other amounts due the Trustee
under Section 7.06.
In case the Company shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings at
law or in equity against the Company or other obligor on such Securities for the
collection of the sums so due and unpaid, and may prosecute any such action or
proceeding to judgment or final decree, and may enforce any such judgment or
final decree against the Company or such other obligor upon such Securities and
collect in the manner provided by law out of the property of the Company or such
other obligor upon such Securities, wherever situated, the moneys adjudged or
decreed to be payable.
In case there shall be pending proceedings for the bankruptcy
or for the reorganization of the Company or any other obligor upon the
Securities of any series under Title 11 of the United States Code or any other
applicable Federal or state bankruptcy, insolvency or other similar law relative
to the Company or such other obligor, its creditors or its property, or in case
a receiver or trustee shall have been appointed for its property or in case of
any other judicial proceedings relative to the Company or other obligor upon the
Securities of any series, its creditors or its property, the Trustee,
irrespective of whether the principal of the Securities of any series shall then
be due and payable as therein expressed, upon redemption or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand
pursuant to this Section, shall be entitled and empowered, by intervention in
such proceedings or otherwise, to file and prove a claim or claims for the whole
amount of principal (or portion thereof determined pursuant to Section 2.03(j)
to be provable in bankruptcy), premium, if any, and interest owing and unpaid in
respect of the Securities of any series, 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 reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and all other
amounts due the Trustee under Section 7.06) and of the Securityholders of any
series allowed in any judicial proceeding relative to the Company or other
obligor upon the Securities of any series, its creditors, or its property, and
to collect and receive any moneys or other property payable or deliverable on
any such claims, and to distribute the same after the deduction of its charges
and expenses; and any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized by each of the Securityholders to make such
payments to the Trustee, and, in the event that the Trustee shall consent to the
making of such payments directly to the Securityholders, to pay to the Trustee
any amount due it for compensation and expenses, including counsel fees incurred
by it and any other amounts due the Trustee under Section 7.06 up to the date of
such distribution.
- 24 -
All rights of action and of asserting claims under this
Indenture, or under any of the Securities of any series, may be enforced by the
Trustee without the possession of any of the Securities of such series, 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 be for the ratable benefit of
the holders of the Securities of such series. In any proceedings brought by the
Trustee (and also any proceedings involving the interpretation of any provision
of this Indenture to which the Trustee shall be a party), the Trustee shall be
held to represent all the holders of the Securities of a series, and it shall
not be necessary to make any holders of the Securities of such series parties to
any such proceedings.
In case of an Event of Default hereunder with respect to
Securities of a particular series, the Trustee may, but unless first requested
so to do by the holders of at least a majority in aggregate principal amount of
the Securities of such series at the time outstanding and furnished with
reasonable indemnity against all costs, expenses and liabilities shall not
(subject to the provisions of Section 7.01) be under any obligation to, proceed
to protect and enforce its rights and the rights of the holders 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 proceedings 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. Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of the holder of
any Security any plan of reorganization, arrangement, adjustment or composition
affecting the Securities of any series or the rights of any holder thereof, or
to authorize the Trustee to vote in respect of the claim of any holder of any
Security in any such proceeding.
SECTION 6.03. Application of Proceeds. Any moneys collected by
the Trustee with respect to a series of Securities pursuant to Section 6.02
shall be applied in the order following, at the date or dates fixed by the
Trustee for the distribution of such moneys:
FIRST: To the payment of all costs and expenses in
connection with the collection of such moneys, and
all amounts payable to the Trustee under Section 7.06;
SECOND: To the payment of the entire amounts then due and
unpaid upon the Securities in respect of which or for the benefit of
which such moneys shall have been collected, without any preference or
priority, ratably according to the amounts due and payable upon such
Securities upon presentation of the several Securities and notation of
such payment thereon, if partly paid, and upon surrender thereof, if
fully paid.
Any surplus then remaining shall be paid to the Company or to such other person
as shall be entitled to receive it.
SECTION 6.04. Limitations on Suits by Securityholders. No
holder of any Security of any series shall have any right by virtue 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
- 25 -
hereunder, unless such holder previously shall have given to the Trustee written
notice of default and of the continuance thereof with respect to the Securities
of that series, and unless also the holders of not less than 25% in aggregate
principal amount of the Securities of that series 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
failed to institute any such action, suit or proceeding and no direction
inconsistent with such written request shall have been given to the Trustee
pursuant to Section 6.06, it being understood and intended, and being expressly
covenanted by the holder of every Security of such series with every other
holder of Securities of such series and the Trustee, that no one or more holders
of Securities of such series shall have any right in any manner whatever by
virtue or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of the holders of any other of such Securities 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 Securities of such
series. For the protection and enforcement of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
Notwithstanding any other provision of this Indenture,
however, the right of any holder of any Security to receive payment of the
principal of and premium, if any, and interest on such Security, on or after the
respective due dates expressed in such Security, 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 6.05. Powers and Remedies Cumulative; Delay or
Omission Not Waiver. All powers and remedies given by this Article to the
Trustee or to the holders of Securities of any series shall, to the extent
permitted by law and subject to Section 6.04, be deemed cumulative and not
exclusive of any thereof or of any other powers and remedies available to the
Trustee or such Securityholders 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 the
Securities of any series to exercise 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 6.04, every power and remedy given
by this Article or by law to the Trustee or to such Securityholders may be
exercised from time to time, and as often as shall be deemed expedient by the
Trustee or by such Securityholders.
SECTION 6.06. Control by Securityholders; Waiver of Default.
The holders of a majority in aggregate principal amount of the Securities of any
series at the time 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 with respect to
Securities of such series; provided, however, that such direction shall not be
otherwise than in accordance with law and the provisions of this Indenture; and
provided further, that the Trustee shall have the right to decline to follow any
such direction if the Trustee in good faith shall, by a Responsible Officer,
determine that the proceedings so directed would involve it in personal
liability for which the Trustee has not received a satisfactory indemnity, or be
unjustly prejudicial to the holders not taking part in such direction, and
furthermore, nothing in this Indenture shall impair the right of the Trustee to
take any action deemed proper by the Trustee
- 26 -
and which is not inconsistent with such direction by such Securityholders. The
holders of at least a majority in aggregate principal amount of the Securities
of any series at the time outstanding may on behalf of the holders of all of the
Securities of such series waive any past default hereunder with respect to the
Securities of such series and its consequences, except a default in the payment
of the principal of or premium, if any, or interest on any of the Securities of
such series. In the case of any such waiver, the Company, the Trustee and the
holders of the Securities of such series shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend to
any subsequent or other default or impair any right consequent thereon.
SECTION 6.07. Trustee to Give Notice of Defaults Known to It,
but May Withhold in Certain Circumstances. The Trustee shall, within 90 days
after the occurrence of a default with respect to the Securities of any series,
give to the Securityholders of such series, in the manner and to the extent
required to do so by the Trust Indenture Act of 1939, notice of all defaults
known to the Trustee, unless such defaults shall have been cured before the
giving of such notice (the term "defaults" for the purposes of this Section
being hereby defined to be the events specified in Sections 6.01(a), (b), (c),
(d), (e), (f) and (g) with respect to Securities of such series not including
periods of grace, if any, provided for therein and irrespective of the giving of
the written notice specified in subparagraph (c) of Section 6.01); provided,
however, that in case of any default of the character specified in subparagraph
(c) of Section 6.01 no such notice shall be given until at least sixty (60) days
after the occurrence thereof; and provided further, that, except in the case of
default in the payment of the principal of or premium, if any, or interest on
any of the Securities of such series, 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 and/or responsible officers of the
Trustee in good faith determine that the withholding of such notice is in the
interests of the Securityholders of such series.
SECTION 6.08. Right of Court to Require Filing of Undertaking
to Pay Costs. All parties to this Indenture agree, and each holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken 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 shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Securityholder, or group of Securityholders, holding in the
aggregate more than 10% in principal amount of the Securities of any series
outstanding, or to any suit instituted by any Securityholder of any series for
the enforcement of the payment of the principal of or premium, if any, or
interest on any Security of such series, on or after the due dates expressed in
such Security.
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ARTICLE SEVEN
Concerning the Trustee
SECTION 7.01. Duties and Responsibilities of Trustee. With
respect to the holders of any series of Securities issued hereunder, the
Trustee, prior to the occurrence of an Event of Default with respect to the
Securities of that series and after the curing or waiving of all Events of
Default which may have occurred with respect to such series, 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. In case an Event of Default with respect to
Securities of any series has occurred (which has not been cured or waived) the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture with respect to such series, 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.
No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(a) prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing or waiving
of all such Events of Default with respect to such series which may
have occurred:
(1) the duties and obligations of the Trustee with
respect to the Securities of that series shall be determined
solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such
duties and obligations 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 the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a responsible officer or officers of the Trustee,
unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the registered holders given as provided in Section 6.06
relating to the time, method and place of conducting
- 28 -
any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers if there is reasonable ground for believing that
the repayment of such funds or liability is not reasonably assured to it.
SECTION 7.02. Certain Rights of Trustee. Except as
otherwise provided in Section 7.01:
(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, Security, 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, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced to the Trustee by a
Company Order (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of Directors
shall be sufficiently evidenced to the Trustee by a Board Resolution;
(c) 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;
(d) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Securityholders, pursuant to the
provisions of this Indenture, unless such Securityholders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred by the Trustee in
complying with such request, order or direction;
(e) whenever in the administration of the provisions of this
Indenture the Trustee shall deem it necessary or desirable that a
matter be proved or established prior to taking, suffering or omitting
any action hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of bad
faith on the part of the Trustee, be deemed to be conclusively proved
and established by an Officers' Certificate delivered to the Trustee
and such certificate, in the absence of bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted by it under the provisions of this Indenture in
good faith and in reliance thereon;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, approval, appraisal, bond, debenture, Security, other
evidence of indebtedness or other paper or document, but the Trustee,
in its discretion, may make such inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine
to make such inquiry or investigation, it shall be entitled to
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examine the books, records and premises of the Company, personally or
by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys, and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed by it with due care hereunder;
(h) the Trustee shall not be charged with knowledge of any
default (as defined in Section 6.07) or Event of Default with respect
to the Securities of any series for which it is acting as Trustee
unless written notice of such default or Event of Default, as the case
may be, shall have been received by the Trustee from the Company, from
any other obligor on such Securities or from any holder of such
Securities and such notice references the Company, such Securities or
this Indenture; and
(i) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture; and
(j) the rights, privileges, protections, immunities and
benefits given to the Trustee hereunder, including, without limitation,
its rights to compensation, reimbursement and indemnification under
Section 7.06, are hereby extended and also made applicable to, and
shall be enforceable by, the Trustee in each of its other capacities
hereunder.
SECTION 7.03. Trustee Not Responsible for Recitals, etc. The
recitals contained herein and in the Securities, except the Trustee's
certificate of authentication and the representation as to the power of the
Trustee to enter into this Indenture and accept and execute the trusts hereby
created, shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application by
the Company of any of the Securities or of the proceeds of such Securities.
SECTION 7.04. Trustee and Others May Hold Securities. Subject
to Sections 7.07 and 7.12, the Trustee or any paying agent or Security registrar
or any other agent of the Company or the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise deal
with the Company or other obligor on the Securities with the same rights it
would have if it were not Trustee, paying agent, Security registrar or such
other agent.
SECTION 7.05. Moneys Held by Trustee or Paying Agent. Subject
to Sections 12.04 and 12.05, all moneys received by the Trustee or any paying
agent shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but any paying agent that is a bank need
not segregate such moneys from other funds except to the extent required by law,
and shall not be invested. Neither the Trustee nor any paying agent shall be
under any liability for interest on any moneys received by it hereunder except
such as it may agree with the Company to pay thereon. So long as no Event of
Default with respect to Securities of any series, other than an Event of Default
under subparagraph (c) of Section 6.01,
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shall have occurred and be continuing, all interest allowed on any such moneys
shall be paid from time to time upon the written order of the Company, signed by
its President, or any Vice President or its Treasurer or an Assistant Treasurer.
SECTION 7.06. Compensation of Trustee and Its Lien. The
Company covenants and agrees to pay to the Trustee from time to time, and the
Trustee shall be entitled to, reasonable compensation (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust), and, except as herein otherwise expressly provided, the Company
will pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all persons not
regularly in its employ) except any such expense, disbursement or advance as may
arise from its negligence or bad faith. If any property other than cash shall at
any time be subject to the lien of this Indenture, the Trustee, if and to the
extent authorized by a receivership or bankruptcy court of competent
jurisdiction or by the supplemental instrument subjecting such property to such
lien, shall be entitled to make advances for the purpose of preserving such
property or of discharging tax liens or other prior liens or encumbrances
thereon. The Company also covenants and agrees to indemnify the Trustee for, and
to hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Trustee, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder. The obligations of the Company under this Section
shall constitute additional indebtedness hereunder. Such additional indebtedness
shall be secured by a lien prior to that of the Securities upon all property and
funds held or collected by the Trustee as such, except funds held in trust for
the benefit of the holders of particular Securities. "Trustee" for purposes of
this Section shall include (i) the Trustee in each of its other capacities
hereunder and (ii) any predecessor Trustee; provided, however, that the
negligence, willful misconduct or bad faith of any Trustee hereunder shall not
affect the rights of any other Trustee hereunder.
In addition and without prejudice to the rights provided to
the Trusee under any of the provisions of the Indenture, when the Trustee incurs
expenses or renders services in connection with an Event of Default specified in
Section 6.01, the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any bankruptcy law.
The provisions of this Section 7.06 shall survive the
termination for any reason of this Indenture and the resignation or removal of
the Trustee.
SECTION 7.07. Disqualification; Conflicting Interests. If the
Trustee shall have or acquire any conflicting interest within the meaning of the
Trust Indenture Act of 1939, it shall either eliminate such conflicting interest
or resign to the extent, in the manner and with the effect, and subject to the
conditions, provided in the Trust Indenture Act of 1939 and this Indenture. To
the extent permitted by such Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under this Indenture with
respect to Securities of more than one series. Nothing herein shall prevent the
Trustee from filing with the Securities and Exchange Commission the application
referred to in the second to last paragraph of Section 310(b) of the Trust
Indenture Act of 1939.
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SECTION 7.08. Persons Eligible for Appointment as Trustee. The
Trustee hereunder shall at all times be a corporation organized and doing
business under the laws of the United States or any State or territory thereof
or of 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, state, territorial, or
District of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with this Section, the Trustee shall resign immediately
in the manner and with the effect specified in Section 7.09.
SECTION 7.09. Resignation and Removal of Trustee; Appointment
of Successor. (a) The Trustee, or any trustee or trustees hereafter appointed,
may at any time resign with respect to any one or more or all series of
Securities by giving written notice to the Company and by mailing notice of such
resignation, to the holders of Securities of that or those series at their last
addresses as they shall appear on the Security Register. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor trustee or
trustees with respect to the applicable series by written instrument executed by
order of the Board of Directors, one copy of which instrument shall be delivered
to the resigning trustee and one copy to the successor trustee. If no successor
trustee shall have been so appointed with respect to a particular series and
have accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any Securityholder
who has been a bona fide holder of a Security or Securities of the applicable
series for at least 6 months may, subject to Section 6.08, on behalf of himself
and all others similarly situated, petition any such court for the appointment
of a successor trustee. Such court may thereupon after such notice, if any, as
it may deem proper and prescribe, appoint a successor trustee.
(b) If at any time:
(1) the Trustee shall fail to comply with Section
7.07 after written request therefor by the Company or by any
Securityholder who has been a bona fide holder of a Security
or Securities for at least 6 months, or
(2) the Trustee shall cease to be eligible under
Section 7.08 and shall fail to resign after written request
therefor by the Company or by any such Securityholder, or
(3) the Trustee shall become incapable of acting, or
shall be adjudged 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, the Company may remove the Trustee with respect to the
applicable series of Securities, and appoint a successor trustee by written
instrument, in duplicate, executed by order of the Board of Directors of the
Company, one copy of which instrument shall be delivered to the trustee so
removed and one copy to the successor trustee, or, subject to Section 6.08, any
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Securityholder who has been a bona fide holder of a Security or Securities of
any such series for at least 6 months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor trustee with respect to such
series. Such court may thereupon after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a successor trustee with
respect to such series.
(c) The holders of a majority in aggregate principal amount of
the Securities of any series at the time outstanding may at any time remove the
Trustee with respect to that series and appoint with respect to such series a
successor trustee by delivering to the trustee so removed, to the successor
trustee so appointed and to the Company, the evidence provided for in Section
8.01 of the action taken by the Securityholders.
(d) Any resignation or removal of the Trustee and any
appointment of a successor trustee pursuant to this Section shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 7.10.
SECTION 7.10. Acceptance of Appointment by Successor Trustee.
Any successor trustee appointed under Section 7.09 shall execute, acknowledge
and deliver to the Company and to its predecessor trustee with respect to any or
all applicable series an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor trustee shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts, duties and
obligations with respect to such series of its predecessor hereunder, with like
effect as if originally named as trustee herein; but, nevertheless, on the
written request of the Company or of the successor trustee, the trustee ceasing
to act shall, upon payment of any amounts then due it pursuant to the provisions
of Section 7.06, execute and deliver an instrument transferring to such
successor trustee all the rights, powers and trusts with respect to such series
of the trustee so ceasing to act. Upon request of any such successor trustee,
the Company shall execute any and all instruments in writing for more fully and
certainly vesting in and confirming to such successor trustee all such rights
and powers. Any trustee ceasing to act shall, nevertheless, retain a lien upon
all property or funds held or collected by such trustee to secure any amounts
then due it pursuant to Section 7.06.
In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the Company,
the predecessor Trustee and each successor Trustee with respect to the
Securities of any applicable series shall execute and deliver an indenture
supplemental hereto which shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the predecessor Trustee with respect to the Securities of any series as to
which the predecessor Trustee is not retiring shall continue to be vested in the
predecessor Trustee, and shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee.
No successor Trustee with respect to any series of Securities
shall accept appointment as provided in this Section unless at the time of such
acceptance such successor
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Trustee shall with respect to such series be qualified under Section 7.07 and
eligible under Section 7.08.
Upon acceptance of appointment by a successor Trustee with
respect to the Securities of any series, the Company shall mail notice of the
succession of such Trustee hereunder to the holders of Securities of such series
at their last addresses as they shall appear on the Security Register. If the
Company fails to mail such notice within 10 days after acceptance of appointment
by the successor Trustee, the successor Trustee shall cause such notice to be
mailed at the expense of the Company.
SECTION 7.11. Merger, Conversion or Consolidation of Trustee.
Any person into which the Trustee may be merged or converted or with which it
may be consolidated, or any person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any person succeeding to
all or substantially all the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, provided such person 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.
SECTION 7.12. Preferential Collection of Claims Against
Company. If the Trustee shall be or become a creditor of the Company or any
other obligor upon the Securities (other than by reason of a relationship
described in Section 311(b) of the Trust Indenture Act of 1939), the Trustee
shall be subject to any and all applicable provisions of the Trust Indenture Act
of 1939 regarding the collection of claims against the Company or such other
obligor. For purposes of Section 311(b) of the Trust Indenture Act of 1939:
(a) The term "cash transaction" shall mean any
transaction in which full payment for goods or securities sold is made
within 7 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.
(b) The term "self-liquidating paper" shall mean any
draft, bill of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company for the purpose of financing the
purchase, processing, manufacture, 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, bill of exchange,
acceptance or obligation.
ARTICLE EIGHT
Concerning the Securityholders
SECTION 8.01. Evidence of Action Taken by Securityholders.
Whenever in this Indenture it is provided that the holders of a specified
percentage or a majority in aggregate
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principal amount of the Securities or of any series of Securities may take any
action (including the making of any demand or request, the giving of any notice,
consent or waiver or the taking of any other action) the fact that at the time
of taking any such action the holders of such specified percentage or majority
have joined therein may be evidenced (a) by any instrument or any number of
instruments of similar tenor executed by Securityholders in person or by agent
or proxy appointed in writing, or (b) by the record of the holders of Securities
voting in favor thereof at any meeting of Securityholders duly called and held
in accordance with the provisions of Article Nine, or (c) by a combination of
such instrument or instruments and any such record of such a meeting of
Securityholders.
SECTION 8.02. Proof of Execution of Instruments and of Holding
of Securities. Subject to the provisions of Sections 7.01, 7.02 and 9.05, proof
of the execution of any instrument by a Securityholder or his agent or proxy and
proof of the holding by any person of any of the Securities shall be sufficient
if made in the following manner:
The fact and date of the execution by any such person of any
instrument may be proved by the certificate of any notary public or other
officer authorized to take acknowledgments of deeds to be recorded in any State
within the United States, that the person executing such instrument acknowledged
to him the execution thereof, or by an affidavit of a witness to such execution
sworn to before any such notary or other such officer. Where such execution is
by an officer of a corporation or association or a member of a partnership on
behalf of such corporation, association or partnership, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and
the date of the execution of any such instrument may also be proved in any other
manner which the Trustee may deem sufficient.
The ownership of Securities may be proved by the Security
Register or by a certificate of the Security registrar.
The Trustee may require such additional proof, if any, of any
matter referred to in this Section as it shall deem necessary.
The record of any Securityholders' meeting shall be proved as
provided in Section 9.06.
SECTION 8.03. Registered Holders of Securities May Be Treated
as Owners. The Company, the Trustee, any paying agent, and any Security
registrar may deem and treat the person in whose name any Security shall be
registered upon the Security Register as the absolute owner of such Security
(whether or not such Security shall be overdue and notwithstanding any notice of
ownership or writing thereon made by anyone other than the Security registrar)
for the purpose of receiving payment thereof or on account thereof and of
interest thereon as herein provided and for all other purposes, and neither the
Company nor the Trustee nor any paying agent nor any Security registrar shall be
affected by any notice to the contrary. All such payments so made to any such
registered holder for the time being, or upon his order, shall be valid, and, to
the extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Security.
SECTION 8.04. Securities Owned by Company Deemed Not
Outstanding. In determining whether the holders of the requisite aggregate
principal amount of Securities have concurred in any direction, consent or
waiver under this Indenture, Securities which are owned
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by the Company or any other obligor on the Securities 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 Securities shall be
disregarded and deemed not to be outstanding for the purpose of any such
determination, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, consent or waiver, only
Securities which a responsible officer of the Trustee with direct responsibility
for the administration of this Indenture assigned to the Corporate Trust
Department of the Trustee (or any successor division or department of the
Trustee) located at the office of the Trustee specified in or pursuant to
Section 15.04 actually knows are so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as outstanding for
the purposes of this Section, if the pledgee shall establish to the satisfaction
of the Trustee that the pledgee has the right to vote such Securities 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 other
obligor. Subject to the provisions of Section 7.01, in 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 8.05. Right of Revocation of Action Taken. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
8.01, of the taking of any action by the holders of the percentage in aggregate
principal amount of the Securities or of any series of Securities specified in
this Indenture in connection with such action, any holder of a Security the
serial number of which is shown by the evidence to be included in the Securities
the holders of which have consented to such action may, by filing written notice
with the Trustee at its office specified in or pursuant to Section 15.04 and
upon proof of holding as provided in Section 8.02, revoke such action so far as
concerns such Security. Except as aforesaid, any such action taken by the holder
of any Security shall be conclusive and binding upon such holder and upon all
future holders and owners of such Security, and of any Security issued in
exchange therefor or in place thereof, irrespective of whether or not any
notation in regard thereto is made upon such Security or any Security issued in
exchange therefor or in place thereof. Any action taken by the holders of the
percentage in aggregate principal amount of the Securities specified in this
Indenture in connection with such action shall be conclusively binding upon the
Company, the Trustee and the holders of all the Securities.
ARTICLE NINE
Securityholders' Meetings
SECTION 9.01. Purposes for Which Securityholders' Meetings
May Be Called. A meeting of Securityholders may be called at any time and from
time to time pursuant to this Article for any of the following purposes:
(1) to give any notice to the Company or to the
Trustee, or to give any directions to the Trustee, or to waive or to
consent to the waiving of any default hereunder and its consequences,
or to take any other action authorized to be taken by Securityholders
pursuant to Article Six;
(2) to remove the Trustee and appoint a
successor trustee pursuant to Article Seven;
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(3) to consent to the execution of an indenture
or indentures supplemental hereto pursuant to Section 10.02; or
(4) to take any other action authorized to be taken
by or on behalf of the holders of any specified aggregate principal
amount of the Securities under any other provision of this Indenture or
under applicable law.
SECTION 9.02. Call of Meetings by Trustee. The Trustee may at
any time call a meeting of Securityholders of any series to be held at any such
time and at such place in the Borough of Manhattan, The City of New York, as the
Trustee shall determine. Notice of every meeting of Securityholders, 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 mailed by the Trustee,
first-class postage prepaid, not less than 20 nor more than 180 days prior to
the date fixed for the meeting, to the holders of Securities of such series at
their last addresses as they shall appear upon the Security Register.
SECTION 9.03. Company and Securityholders May Call Meeting. In
case the Company, pursuant to a resolution of its Board of Directors, or the
holders of at least 10% in aggregate principal amount of the Securities of any
series then outstanding, shall have requested the Trustee to call a meeting of
Securityholders of such series, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall not
have made the mailing of the notice of such meeting within 20 days after receipt
of such request, then the Company or the holders of such Securities in the
amount above specified may determine the time and the place in said Borough of
Manhattan for such meeting and may call such meeting to take any action
authorized in Section 9.01, by mailing notice thereof as provided in Section
9.02.
SECTION 9.04. Persons Entitled to Vote at Meeting. To be
entitled to vote at any meeting of Securityholders of a series a person shall be
(a) a registered holder of one or more Securities of such series or (b) a person
appointed by an instrument in writing as proxy for the holder or holders of such
Securities by a registered holder of one or more such Securities. The only
persons who shall be entitled to be present or to speak at any meeting of
Securityholders 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 9.05. Determination of Voting Rights; Conduct and
Adjournment of Meeting. Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Securityholders, in regard to proof of the holding of Securities
and of the appointment of proxies, and in regard to the appointment and duties
of inspectors of votes, the submission and examination of proxies, certificates
and other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 8.02 or other proof.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 8.02 and the
appointment of any proxy shall be proved in the manner specified in said Section
8.02 or by having the signature of the person executing the proxy witnessed or
guaranteed by any bank, banker, trust company or firm satisfactory to the
Trustee.
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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 Securityholders as provided in Section 9.03, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the holders of a majority
in principal amount of the Securities represented at the meeting and entitled to
vote.
Subject to the provisions of Section 8.04, at any meeting any
Securityholder of a series or proxy shall be entitled to one vote for each
$1,000 principal amount of Securities of such series held or represented by him
(in the case of Original Issue Discount Securities, such principal amount is the
amount that would be due and payable upon the acceleration of the maturity
thereof pursuant to Section 6.01) provided, however, that no vote shall be cast
or counted at any meeting in respect of any Security challenged as not
outstanding and ruled by the chairman of the meeting to be not outstanding. The
chairman of the meeting shall have no right to vote other than by virtue of
Securities of such series held by him or instruments in writing as aforesaid
duly designating him as the person to vote on behalf of other Securityholders of
such series. Any meeting of Securityholders duly called pursuant to Section 9.02
or 9.03 may be adjourned from time to time, and the meeting may be held as so
adjourned without further notice.
At any meeting, the presence of persons holding or
representing Securities in an aggregate principal amount sufficient to take
action upon the business for the transaction of which such meeting was called
shall be necessary to constitute a quorum; but, if less than a quorum be
present, the persons holding or representing a majority of the Securities
represented at the meeting may adjourn such meeting with the same effect, for
all intents and purposes, as though a quorum had been present.
SECTION 9.06. Counting Vote and Recording Action of Meeting.
The vote upon any resolution submitted to any meeting of Securityholders of a
series shall be by written ballots on which shall be subscribed the signatures
of the holders of Securities of such series or of their representatives by proxy
and the serial number or numbers of the Securities of such series 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 Securityholders 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 mailed as provided in Sections 9.02 and 9.03. The record shall show
the serial numbers of the Securities 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, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
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ARTICLE TEN
Supplemental Indentures
SECTION 10.01. Supplemental Indentures Without Consent of
Securityholders. The Company, when authorized by a resolution of its Board of
Directors, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act of 1939 as it shall be in force at the
date of execution of such indenture or indentures) for one or more of the
following purposes:
(a) to evidence the succession of another
corporation to the Company, or successive successions, and
the assumption by the Successor of the covenants, agreements and
obligations of the Company pursuant to Article Eleven;
(b) to add to the covenants and agreements of the
Company such further covenants, agreements, restrictions or conditions
for the protection of the holders of the Securities of all or any
series as its Board of Directors and the Trustee shall consider to be
for the protection of the holders of Securities of such series (and if
such covenants, agreements, restrictions or conditions are to be for
the benefit of less than all series of Securities, stating that such
covenants, agreements, restrictions or conditions are expressly being
included for the benefit of such series), and to make the occurrence,
or the occurrence and continuance, of a default in any of such
additional covenants, agreements, restrictions or conditions a default
or an Event of Default permitting the enforcement of all or any of the
several remedies provided in this Indenture as herein set forth;
provided, however, that in respect of any such additional covenant,
agreement, restriction or condition such supplemental indenture may
provide for a particular period of grace after default (which period
may be shorter or longer than that allowed in the case of other
defaults) or may provide for an immediate enforcement upon such default
or may limit the remedies available to the Trustee upon such default or
may limit the right of the holders of Securities to waive such default;
(c) to add, delete or modify any Events of Default
with respect to all or any series of the Securities, the form and terms
of which are being established pursuant to such supplemental indenture
as permitted in Sections 2.01, 2.02 and 2.03 (and, if any such event of
default is applicable to fewer than all such series of the Securities,
specifying the series to which such event of default is applicable),
and to specify the rights and remedies of the Trustee and the holders
of such Securities in connection therewith;
(d) to prohibit the authentication and delivery of
additional series of Securities, to cure any ambiguity or to correct or
supplement any provision contained herein or in any supplemental
indenture which may be defective or inconsistent with any other
provisions contained herein or in any supplemental indenture, or to
make such other provisions in regard to matters or questions arising
under this Indenture as shall not be inconsistent with the provisions
of this Indenture or any supplemental indenture and shall not adversely
affect the interests of the holders of the Securities;
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(e) to establish the form and terms of the Securities
of any series as permitted in Sections 2.01, 2.02 and 2.03, or to
authorize the issuance of additional Securities of a series previously
authorized or to add to the conditions, limitations or restrictions on
the authorized amount, terms or purposes of issue, authentication or
delivery of the Securities of any series, as herein set forth, or other
conditions, limitations or restrictions thereafter to be observed; and
(f) to evidence and provide for the acceptance of
appointment hereunder by a successor trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
trustee, pursuant to the requirements of Section 7.10.
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 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.
Any supplemental indenture authorized by the provisions of
this Section shall be executed by the Company and the Trustee and shall not
require the consent of the holders of any of the Securities at the time
outstanding, notwithstanding Section 10.02.
SECTION 10.02. Supplemental Indentures With Consent of
Securityholders. With the consent (evidenced as provided in Section 8.01) of the
holders of not less than a majority in aggregate principal amount of the
Securities of any series at the time outstanding, the Company, when authorized
by a resolution of its Board of Directors, and the Trustee may from time to time
and at any time enter into an indenture or indentures supplemental hereto (which
shall conform to the provisions of the Trust Indenture Act of 1939 as it shall
be in force at the date of execution of such indenture or indentures) for the
purpose, with respect to Securities of such series, 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
holders of the Securities of such series; provided, however, that no such
supplemental indenture shall (i) extend the fixed maturity, or the earlier
optional date of maturity, if any, of any Security, or reduce the principal
amount thereof or the premium thereon, if any, or reduce the rate or extend the
time of payment of interest thereon, or make the principal thereof or premium,
if any, or interest thereon payable in any coin or currency other than that
provided in such Security without the consent of the holder of each Security so
affected, or (ii) reduce the principal amount of Securities of any series, the
holders of which are required to consent to any such supplemental indenture,
without the consent of the holders of all Securities of such series then
outstanding.
Upon the request of the Company, accompanied by a Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of the
Securityholders 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
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otherwise, in which case the Trustee may in its discretion but shall not be
obligated to enter into such supplemental indenture.
A supplemental indenture which changes or eliminates any
provision of this Indenture or of any series of Securities which has expressly
been included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of holders of Securities of such series
with respect to such provision, shall be deemed not to affect the rights under
this Indenture of the holders of Securities of any other series.
It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of
any supplemental indenture under this Section, the Company shall mail a notice,
setting forth in general terms the substance of such supplemental indenture, to
the holders of Securities at their last addresses as they shall appear on the
Security Register. Any failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such supplemental indenture.
SECTION 10.03. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture pursuant to the provisions of this
Article, this Indenture shall be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitation of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the holders of Securities 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 10.04. Notation on Securities in Respect of
Supplemental Indentures. Securities authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article or after any action taken at a Securityholders' meeting pursuant to the
provisions of Article Nine may, and if required by the Trustee shall, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture or as to any such action. If the Company and the Trustee
shall so determine, new Securities of any series so modified as to conform, in
the opinion of the Company and the Trustee, to any modification of this
Indenture contained in any such supplemental indenture may be prepared by the
Company, authenticated by the Trustee and delivered in exchange for the
Securities of such series then outstanding.
SECTION 10.05. Opinion of Counsel to Be Given Trustee. The
Trustee, subject to Sections 7.01 and 7.02, may receive an Opinion of Counsel as
conclusive evidence that any such supplemental indenture is authorized by the
terms of this Indenture and that it is proper for the Trustee under the
provisions of this Article to join in the execution thereof.
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ARTICLE ELEVEN
Consolidation, Merger and Sale
SECTION 11.01. Company May Consolidate or Merge, etc. Subject
to the provisions of Section 11.02, nothing contained in this Indenture shall
prevent any consolidation of the Company with or the merger of the Company into
any other corporation, or any merger of any other corporation into the Company,
or successive consolidations or mergers to which the Company or its successor or
successors shall be a party or parties, or shall prevent any sale, transfer or
lease of the properties of the Company as an entirety or substantially as an
entirety to any other corporation lawfully entitled to acquire the same.
SECTION 11.02. Conditions to Consolidation or Merger, etc. The
Company covenants and agrees that it will not consolidate with or merge into any
other corporation, or sell, transfer or lease its properties as an entirety or
substantially as an entirety to any person unless, and the Company covenants and
agrees that any such consolidation, merger, sale, transfer or lease shall be
upon the conditions that (i) the successor corporation formed by or surviving
any such consolidation or merger or the person to which such sale, transfer or
lease shall have been made ("the Successor") shall be a corporation organized
and existing under the laws of the United States of America or a state thereof,
(ii) the due and punctual payment of the principal of and premium, if any, and
interest on the Securities according to their tenor, and the due and punctual
performance and observance of all the terms, covenants and conditions of this
Indenture, the Securities and all indentures supplemental hereto to be performed
or observed by the Company shall, by an indenture supplemental hereto, executed
and delivered to the Trustee, be expressly assumed by the Successor, as fully
and effectually as if such Successor had been an original party hereto, and
(iii) immediately after such merger, consolidation, sale, 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.
The Successor, other than a Successor by reason of a lease of
the Company's properties, upon executing such indenture supplemental hereto, in
form satisfactory to the Trustee, shall succeed to and be substituted for the
Company with the same effect as if it had been an original party hereto, thus
relieving the Company of all liabilities hereunder and under the Securities, and
the Successor shall possess and from time to time may exercise each and every
power hereunder of the Company, and may execute and deliver Securities
hereunder, either in the name of the Company or the Successor, and any act or
proceeding required by this Indenture to be done or performed by any board or
officer of the Company may be done or performed with like force and effect by
the like board or officer of the Successor.
SECTION 11.03. Documents and Opinion to Be Furnished to the
Trustee. The Company covenants and agrees that if it shall consolidate with or
merge into any other corporation or if it shall sell, transfer or lease its
properties, as an entirety or substantially as an entirety, the Company will
promptly furnish to the Trustee:
(1) A certificate signed by the President or a Vice
President and by the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary of the
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Successor stating that the covenants of the Company contained in
Section 11.02 have been complied with;
(2) An executed counterpart of any instrument
or instruments executed by the Company or the Successor
in the performance of such covenants; and
(3) An Opinion of Counsel stating that in the opinion
of such counsel such covenants have been complied with and that any
instrument or instruments executed by the Company or the Successor in
the performance of such covenants comply with the requirements of such
covenants.
Each certificate, instrument and opinion furnished to the
Trustee pursuant to the provisions of this Section shall conform to the
requirements of Section 15.06.
Subject to the provisions of Sections 7.01 and 7.02, the
Trustee may receive an Opinion of Counsel conforming to the requirements of
Section 15.06 as conclusive evidence that any such consolidation, merger, sale,
transfer or lease, any such assumption and any such supplemental indenture or
other instrument or instruments comply with the provisions of this Article.
ARTICLE TWELVE
Satisfaction and Discharge of Indenture;
Defeasance; Unclaimed Moneys
SECTION 12.01. Satisfaction and Discharge of Indenture. If (a)
the Company shall deliver to the Trustee for cancellation all outstanding
Securities, or (b) all outstanding Securities not delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to become
due and payable within one year or are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of notice of
redemption and the Company shall deposit with the Trustee as trust funds the
entire amount sufficient to pay at maturity or upon redemption all such
Securities not delivered to the Trustee for cancellation, including principal
and premium, if any, and interest due or to become due to such date of maturity
or redemption, and if in either case the Company shall also pay or cause to be
paid all other sums payable hereunder by the Company, then this Indenture shall
cease to be of further effect, and the Trustee, on demand of the Company and at
the cost and expense of the Company, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture. The Company agrees
to reimburse the Trustee for any costs or expenses thereafter reasonably and
properly incurred by the Trustee without negligence or bad faith in connection
with this Indenture or the Securities.
SECTION 12.02. Defeasance. Provided that the same has been
duly authorized with respect to Securities of a particular series pursuant to
Section 2.03(1), if, at any time after the date hereof, the Company shall
deposit with the Trustee, in trust for the benefit of the holders thereof, (i)
funds sufficient to pay, or (ii) such amount of direct noncallable obligations
of, or noncallable obligations the payment of principal of and interest on which
is fully guaranteed by, the United States of America, or to the payment of which
obligations or guarantees the full faith
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and credit of the United States of America is pledged, as will, or will together
with the income thereon without consideration of any reinvestment thereof, be
sufficient to pay all sums due for principal of, premium, if any, and interest
on the Securities of such series, as they shall become due from time to time,
and shall pay all costs, charges and expenses incurred or to be incurred by the
Trustee in relation thereto or in carrying out the provisions of this Indenture,
this Indenture shall cease to be of further effect with respect to Securities of
such series (except as to (i) rights of registration of transfer, substitution
and exchange of Securities of such series, (ii) rights of holders to receive
payments of, principal of, premium, if any, and interest on the Securities of
such series as they shall become due from time to time and other rights, duties
and obligations of Securityholders as beneficiaries hereof with respect to the
amounts so deposited with the Trustee, and (iii) the rights, obligations and
immunities of the Trustee hereunder (for which purposes the Securities of such
series shall be deemed outstanding)), and the Trustee, on the written request of
the Company, accompanied by the Officers' Certificate and Opinion of Counsel
required by Section 15.06, shall execute and deliver to the Company such
instruments as shall be requisite to evidence the satisfaction thereof with
respect to Securities of such series.
SECTION 12.03. Application by Trustee of Funds Deposited for
Payment of Securities. All moneys deposited with the Trustee pursuant to
Sections 12.01 and 12.02, or received by the Trustee in respect of obligations
deposited with the Trustee pursuant to Section 12.02 shall be held in trust and
applied by it to the payment, either directly or through any paying agent
(including the Company acting as its own paying agent), to the holders of the
particular Securities, for the payment of which such moneys have been deposited
with the Trustee, of all sums due and to become due thereon for principal,
premium, if any, and interest.
SECTION 12.04. Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture all moneys then
held by any paying agent, other than the Trustee, under this Indenture shall,
upon and in accordance with demand of the Company, be paid to the Trustee and
thereupon such paying agent shall be released from all further liability with
respect to such moneys.
SECTION 12.05. Return of Unclaimed Moneys. Any moneys
deposited with the Trustee or any paying agent not applied but remaining
unclaimed by the holders of Securities for 2 years after the date upon which the
principal of and premium, if any, or interest on such Securities shall have
become due and payable shall be repaid to the Company by the Trustee or such
paying agent on written demand; and the holder of any of the Securities entitled
to receive such payment shall thereafter look only to the Company for the
payment thereof and all liability of the Trustee or any such paying agent with
respect to such moneys shall thereupon cease. In the absence of any such Company
Order, the Trustee or any such paying agent shall from time to time deliver such
unclaimed funds to, or as directed by, the pertinent escheat authority, as
identified by the Trustee or such paying agent in its sole discretion, pursuant
to and in accordance with applicable unclaimed property laws, rules or
regulations. Any such delivery shall be in accordance with the customary
practices and procedures of the Trustee or such paying agent and the escheat
authority and, upon any such delivery, all liability of the Trustee and such
paying agent with respect to such unclaimed funds shall thereupon cease.
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ARTICLE THIRTEEN
Immunity of Incorporators, Stockholders, Officers and Directors
SECTION 13.01. Personal Immunity from Liability of
Incorporators, Stockholders, etc. No recourse under or upon any obligation,
covenant or agreement of this Indenture or any indenture supplemental hereto, or
of any Security, or for any claim based thereon or otherwise in respect thereof,
shall be had against any incorporator or against any past, present or future
stockholder, officer or member of the Board of Directors, as such, of the
Company or of 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 penalty or otherwise,
all such liability and any and all such claims being hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issue of the Securities.
ARTICLE FOURTEEN
Subordination
SECTION 14.01. Securities Subordinated to Senior Debt. With
respect to Securities of any series as to which, pursuant to Section 2.03(n), it
has been established that this Article Fourteen applies (herein called the
"Subordinated Securities"), the Company covenants and agrees, and each holder of
Subordinated Securities, by his acceptance thereof, likewise covenants and
agrees, that the indebtedness represented by the Subordinated Securities and the
payment of the principal of, premium, if any, and interest on each and all of
the Subordinated Securities are hereby expressly subordinate and junior to the
extent and in the manner hereinafter set forth, in right of payment to the prior
payment in full of all Senior Indebtedness. "Senior Indebtedness" means all
indebtedness of the Company for the repayment of money borrowed (whether or not
represented by bonds, debentures, notes or other securities) other than the
indebtedness evidenced by the Subordinated Securities and any indebtedness
subordinated to, or subordinated on parity with, the Subordinated Securities.
"Senior Indebtedness" does not include customer deposits or other amounts
securing obligations of others to the Company.
SECTION 14.02. Events of Subordination. In the event (a) of
any distribution of assets of the Company upon any dissolution, winding up,
liquidation or reorganization of the Company, whether in bankruptcy, insolvency,
reorganization or receivership proceedings or upon an assignment for the benefit
of creditors or any other marshalling of the assets and liabilities of the
Company or otherwise, except a distribution in connection with a consolidation,
merger or sale, transfer or lease of the properties of the Company which
complies with the requirements of Section 11.02, or (b) the principal of any
Senior Indebtedness shall have been declared due and payable by reason of an
event of default with respect thereto and such event of default shall not have
been rescinded, then:
(1) in the circumstance described in the
foregoing clause (a) the holders of all Senior Indebtedness,
and in the circumstance described in the
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foregoing clause (b) the holders of all Senior Indebtedness
outstanding at the time the principal of such Senior
Indebtedness shall have been so declared due and payable,
shall first be entitled to receive payment of
the full amount due thereon in respect of
principal, premium, if any, and interest, or provision shall
be made for such amount in money or money's worth, before the
holders of any of the Subordinated Securities are entitled to
receive any payment on account of the principal of, premium,
if any, or interest on the indebtedness evidenced by the
Subordinated Securities;
(2) any payment by, or distribution of
assets of, the Company of any kind or character, whether in
cash, property or securities (other than securities of the
Company as reorganized or readjusted or securities of the
Company or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in this Article
with respect to the Subordinated Securities, to the payment of
all Senior Indebtedness, provided that the rights of the
holders of the Senior Indebtedness are not altered by such
reorganization or readjustment), to which the holders of any
of the Subordinated Securities or the Trustee would be
entitled except for the provisions of this Article shall be
paid or delivered by the person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of
such Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such
Senior Indebtedness may have been issued, ratably according to
the aggregate amounts remaining unpaid on account of such
Senior Indebtedness held or represented by each, to the extent
necessary to make payment in full of all Senior Indebtedness
remaining unpaid after giving effect to any concurrent payment
or distribution (or provision therefor) to the holders of such
Senior Indebtedness, before any payment or distribution is
made to the holders of the indebtedness evidenced by the
Subordinated Securities or to the Trustee under this
Indenture; and
(3) in the event that, notwithstanding the
foregoing, any payment by, or distribution of assets of, the
Company of any kind or character, whether in cash, property or
securities (other than securities of the Company as
reorganized or readjusted or securities of the Company or any
other corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinate, at least to
the extent provided in this Article with respect to the
Subordinated Securities, to the payment of all Senior
Indebtedness, provided that the rights of the holders of
Senior Indebtedness are not altered by such reorganization or
readjustment), shall be received by the Trustee or the holders
of any of the Subordinated Securities before all Senior
Indebtedness is paid in full, such payment or distribution
shall be paid over to the holders of such Senior Indebtedness
or their representative or representatives or to the trustee
or trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been
issued, ratably as aforesaid, for application to the payment
of all Senior Indebtedness remaining unpaid until all such
Senior Indebtedness shall have been paid in full, after giving
effect to any concurrent payment or distribution (or provision
therefor) to the holders of such Senior Indebtedness.
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SECTION 14.03. Subrogation. Subject to the payment in full of
all Senior Indebtedness, the holders of the Subordinated Securities shall be
subrogated to the rights of the holders of such Senior Indebtedness to receive
payments or distribution of cash, property or securities of the Company
applicable to such Senior Indebtedness until all amounts owing on the
Subordinated Securities shall be paid in full, and, as among the Company, its
creditors other than holders of such Senior Indebtedness, and the holders of the
Subordinated Securities, no such payment or distribution made to the holders of
Senior Indebtedness by virtue of this Article which otherwise would have been
made to the holders of the Subordinated Securities shall be deemed to be a
payment by the Company on account of such Senior Indebtedness, it being
understood that the provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the holders of the Subordinated
Securities, on the one hand, and the holders of Senior Indebtedness, on the
other hand.
SECTION 14.04. Obligation of Company Unconditional. Nothing
contained in this Article or elsewhere in this Indenture or in the Subordinated
Securities is intended to or shall impair, as among the Company, its creditors
other than the holders of Senior Indebtedness, and the holders of the
Subordinated Securities the obligation of the Company, which is absolute and
unconditional to pay to the holders of the Subordinated Securities the principal
of, premium, if any, and interest on the Subordinated Securities as and when the
same shall become due and payable in accordance with their terms, or is intended
to or shall affect the relative rights of the holders of the Subordinated
Securities and creditors of the Company other than the holders of Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or the
holder of any Subordinated Security from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article of the holders of Senior Indebtedness in
respect of cash, property or securities of the Company received upon the
exercise of any such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee and the holders of the Subordinated
Securities shall be entitled to rely upon any order or decree made by any court
of competent jurisdiction in which any such dissolution, winding up, liquidation
or reorganization proceeding affecting the affairs of the Company is pending or
upon a certificate of the trustee in bankruptcy, receiver, assignee for the
benefit of creditors, liquidating trustee or agent or other Person making any
payment or distribution, delivered to the Trustee or to the holders of the
Subordinated Securities, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount paid or distributed thereon and all other facts
pertinent thereto or to this Article. In the event that the Trustee determines,
in good faith, that further evidence is required with respect to the right of
any person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Section, the Trustee may request such person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Indebtedness held by such Person, as to the extent to which such
Person is entitled to participate in such payment or distribution, and as to
other facts pertinent to the right of such Person under this Section, and if
such evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 14.05. Payments on Subordinated Securities Permitted.
Nothing contained in this Article or elsewhere in this Indenture, or in any of
the Subordinated Securities,
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shall affect the obligation of the Company to make, or prevent the Company from
making, payments of the principal of, premium, if any, or interest on the
Subordinated Securities in accordance with the provision hereof and thereof, or
shall prevent the Trustee or any paying agent of the Company from applying any
moneys deposited with it hereunder to the payment of the principal of, premium,
if any, or interest on the Subordinated Securities, in each case except as
otherwise provided in this Article.
SECTION 14.06. Effectuation of Subordination by Trustee. Each
holder of Subordinated Securities, by his acceptance thereof, authorizes and
directs the Trustee in his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 14.07. Knowledge of Trustee. Notwithstanding the
provisions of this Article or any other provisions of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts which
would prohibit the making of any payment of moneys to or by the Trustee, or the
taking of any other action by the Trustee (and shall not be liable for making
such payment or taking such action), unless and until a responsible officer of
the Trustee having direct responsibility for the administration of this
Indenture assigned to the Corporate Trust Department of the Trustee (or any
successor division or department of the Trustee) located at the office of the
Trustee specified in or pursuant to Section 15.04shall have received written
notice thereof from the Company, any holder of Subordinated Securities, any
paying agent of the Company or any holder or representative of any class of
Senior Indebtedness, and, prior to the receipt of any such written notice, the
Trustee shall be entitled in all respects to assume that no such facts exist;
provided that, if prior to the third business day preceding the date upon which
by the terms hereof any monies become payable for any purpose (including,
without limitation, the payment of either the principal of or interest on any
Subordinated Security), or the date of the execution of an instrument pursuant
to Section 12.02 acknowledging satisfaction and discharge of this Indenture,
such responsible officer of the Trustee shall not have received with respect to
such monies or to such funds or obligations deposited pursuant to Section 12.02,
the notice provided for in this Section 14.07, then, anything herein contained
to the contrary notwithstanding, the Trustee shall have full power and authority
to receive such monies or such funds or obligations and apply the same to the
purpose for which they were received and shall not be affected by any notice to
the contrary which may be received by it on or after such date.
SECTION 14.08. Trustee's Relation to Senior Indebtedness. The
Trustee shall be entitled to all the rights set forth in this Article with
respect to any Senior Indebtedness at the time held by it, to the same extent as
any other holder of Senior Indebtedness, and nothing in Section 7.12 or
elsewhere in this Indenture shall deprive the Trustee of any of its rights as
such holder. Nothing in this Article shall apply to claims of or payments to the
Trustee under or pursuant to Section 7.06.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness, and the
Trustee shall not be liable to any holder of Senior Indebtedness, if it shall
mistakenly pay over or deliver to holders
- 48 -
of Subordinated Securities, the Company or any other Person monies or assets to
which any holder of Senior Indebtedness shall be entitled by virtue of this
Article or otherwise.
SECTION 14.09. Rights of Holders of Senior Indebtedness Not
Impaired. No right of any present or future holder of any Senior Indebtedness to
enforce the subordination herein shall at any time or in any way be prejudiced
or impaired by any act or failure to act on the part of the Company or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
ARTICLE FIFTEEN
Miscellaneous Provisions
SECTION 15.01. Successors. All the covenants,
stipulations, promises and agreements in this Indenture contained by or in
behalf of the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 15.02. Benefits of Indenture Restricted to Parties and
Securityholders. Nothing in this Indenture or in the Securities, expressed or
implied, shall give or be construed to give to any person, other than the
Company, the Trustee and the Securityholders, any legal or equitable right,
remedy or claim under or in respect of this Indenture.
SECTION 15.03. Payments Due on Sundays and Holidays. In any
case where the date of maturity of principal of or interest on any Securities or
the date fixed for redemption of any Securities shall be a Sunday or legal
holiday or a day on which banking institutions in the City of New York are
authorized by law to close, then payment of interest or principal and premium,
if any, 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 date fixed for redemption and
no interest shall accrue for the period after such date.
SECTION 15.04. Notices and Demands on Company and Trustee. 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 holders of Securities
on the Company shall be in writing and shall be deemed to have been sufficiently
given or served, for all purposes, if given or served at, or sent by registered
mail to, the principal office of the Company (until another address is filed in
writing by the Company with the Trustee). Any notice, direction, request or
demand by the Company or by any Securityholder to or upon the Trustee shall be
in writing and shall be deemed to have been sufficiently given or made, for all
purposes, if given or made at, or sent by registered mail to and received at,
the office of the Trustee located at 450 West 33rd Street, 15th Floor, New York,
New York 10001, Attention: Institutional Trust Services, or at any other address
previously furnished in writing to the Company by the Trustee. Any notice
required or permitted to be mailed to a Securityholder by the Company or the
Trustee pursuant to the provisions of this Indenture shall be in writing and
shall be deemed to be properly mailed by being deposited, first class mail
postage prepaid, in a post office letter box in the United States addressed to
such Securityholder at the address of such holder as shown on the Security
Register.
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SECTION 15.05. Law of New York to Govern. This Indenture and
each Security shall be deemed to be a contract made under the law of the State
of New York, and for all purposes shall be governed by and construed in
accordance with the law of said State.
SECTION 15.06. Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Company to the Trustee to take any action under any of the provisions of this
Indenture, the Company shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent provided for in this Indenture relating to
the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent have been
complied with, except that in the case of any such application or demand as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relative to such particular application or demand, no
additional certificate or opinion need be furnished.
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 the
person making such certificate or opinion has read such covenant or condition
and the definitions herein relating thereto; (2) a brief statement as to the
nature and scope of the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are based; (3) a statement
that, in the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with; and (4) a
statement as to whether or not, in the opinion of such person, such condition or
covenant has been complied with.
SECTION 15.07. Conflict of any Provision of Indenture with
Trust Indenture Act of 1939. If and to the extent that any provision of this
Indenture (or any provision of the terms of a series of Securities) 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 Trust Indenture Act of 1939, such required provision shall
control.
SECTION 15.08. 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 15.09. Severability. If any provision of this
Indenture shall be held or deemed to be or shall, in fact, be inoperative or
unenforceable as applied in any particular case in any jurisdiction or
jurisdictions or in all jurisdictions, or in all cases because it conflicts with
any other provision or provisions hereof or any constitution or statute or rule
of public policy or for any other reason, such circumstances shall not have the
effect of rendering the provision in question inoperative or unenforceable in
any other case or circumstance, or of rendering any other provision or
provisions herein contained invalid, inoperative, or unenforceable to any extent
whatever.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
CONSOLIDATED EDISON, INC.
By /s/ Joan S. Freilich
Joan S. Freilich
Executive Vice President and Chief
Financial Officer
[CORPORATE SEAL]
ATTEST:
/s/ Saddie L. Smith
Saddie L. Smith
Secretary
JPMORGAN CHASE BANK,
Trustee
By /s/ James P. Freeman
James P. Freeman
Vice President
[CORPORATE SEAL]
ATTEST:
/s/ Natalie B. Pesce
Natalie B. Pesce
Trust Officer
- 51 -
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
On the 3rd day of April, 2002 before me personally came Joan S.
Freilich, to me known, who, being by me duly sworn, did depose and say that she
is an Executive Vice President and Chief Financial Officer of CONSOLIDATED
EDISON, INC., one of the corporations described in and which executed the above
instrument; that he knows the corporate seal of said corporation; that the seal
affixed to the said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation; and that he signed his
name thereto by like authority.
[NOTORIAL SEAL]
/s/ Kathy Williams
Kathy Williams
Notary Public, State of New York
No. 01WI6046458
Qualified in Westchester County
Commission Expires August 14, 2002
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
On the 3rd day of April, 2002 before me personally came James P.
Freeman, to me known, who, being by me duly sworn, did depose and say that he is
a Vice President of JPMORGAN CHASE BANK, one of the corporations described in
and which executed the above instrument; that he knows the corporate seal of
said corporation; that the seal affixed to the said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
[NOTORIAL SEAL]
/s/ Kathy Williams
Kathy Williams
Notary Public, State of New York
No. 01WI6046458
Qualified in Westchester County
Commission Expires August 14, 2002