FORM OF INDENTURE FOR SENIOR DEBT SECURITIES
EXHIBIT 4.c.
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GREAT PLAINS ENERGY INCORPORATED
AND
THE BANK OF NEW YORK,
Trustee
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FORM OF INDENTURE
Dated as of _______, 200_
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i
CROSS REFERENCE SHEET SHOWING THE LOCATION IN THE INDENTURE OF
THE PROVISIONS INSERTED CORRELATIVE TO SECTIONS 310 THROUGH
318(a), INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939
Indenture
Section of Act Section
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310(a)(1) . . . . . . . . . . . . . . . 9.09
(a)(2) . . . . . . . . . . . . . . . 9.09
(a)(3) . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . Not Applicable
(a)(5) . . . . . . . . . . . . . . . 9.09
(b) . . . . . . . . . . . . . . . 9.08
(c) . . . . . . . . . . . . . . . Not Applicable
311(a) . . . . . . . . . . . . . . . 9.14
(b) . . . . . . . . . . . . . . . 9.14
(c) . . . . . . . . . . . . . . . Not Applicable
312(a) . . . . . . . . . . . . . . . 7.01 and 7.02(a)
(b) . . . . . . . . . . . . . . . 7.02(b)
(c) . . . . . . . . . . . . . . . 7.02(c)
313(a) . . . . . . . . . . . . . . . 7.04(a)
(b) . . . . . . . . . . . . . . . 7.04(b)
(c) . . . . . . . . . . . . . . . 7.04(d)
(d) . . . . . . . . . . . . . . . 7.04(c)
314(a) . . . . . . . . . . . . . . . 7.03 and 6.06
(b) . . . . . . . . . . . . . . . 6.05
(c)(1) . . . . . . . . . . . . . . . 1.03 and 15.05
(c)(2) . . . . . . . . . . . . . . . 1.03 and 15.05
(c)(3) . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . 1.03 and 4.06
(e) . . . . . . . . . . . . . . . 15.05(b)
(f) . . . . . . . . . . . . . . . Not Applicable
315(a) . . . . . . . . . . . . . . . 9.01
(b) . . . . . . . . . . . . . . . 8.08
(c) . . . . . . . . . . . . . . . 9.01(a)
(d) . . . . . . . . . . . . . . . 9.01(b)
(e) . . . . . . . . . . . . . . . 8.09
316(a) . . . . . . . . . . . . . . . 8.07 and 10.04
(b) . . . . . . . . . . . . . . . 8.04(b) and 13.02
(c) . . . . . . . . . . . . . . . 10.06
317(a)(1) . . . . . . . . . . . . . . . 8.02(b)
(a)(2) . . . . . . . . . . . . . . . 8.02(c)
(b) . . . . . . . . . . . . . . . 5.02 and 6.04
318(a) . . . . . . . . . . . . . . . 15.07
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NOTE: This Cross Reference Sheet is not, for any purpose, deemed
to be a part of the Indenture.
ii
TABLE OF CONTENTS*
PAGE
PARTIES 1
RECITALS 1
ARTICLE ONE
DEFINITIONS
SECTION 1.01 General 1
SECTION 1.02 Trust Indenture Act 2
SECTION 1.03 Definitions 2
ARTICLE TWO
FORM, ISSUE, EXECUTION, REGISTRATION, AND
EXCHANGE OF NOTES
SECTION 2.01 Forms Generally 5
SECTION 2.02 Form of Trustee's Certificate of 6
Authentication
SECTION 2.03 Amount Unlimited 6
SECTION 2.04 Denominations, Dates, Interest Payment and 6
Record Dates
SECTION 2.05 Execution, Authentication, Delivery, and 7
Dating
SECTION 2.06 Exchange and Registration of Transfer of 10
Notes
SECTION 2.07 Mutilated, Destroyed, Lost or Stolen Notes 10
SECTION 2.08 Temporary Notes 11
SECTION 2.09 Cancellation of Notes Paid, Etc. 11
SECTION 2.10 Interest Rights Preserved 12
SECTION 2.11 Special Record Date 12
SECTION 2.12 Payment of Notes 12
SECTION 2.13 Notes Issuable in the Form of a Global Note 13
SECTION 2.14 CUSIP and ISIN Numbers 15
SECTION 2.15 Extension of Interest Payment Periods 15
ARTICLE THREE
REDEMPTION OF NOTES
SECTION 3.01 Applicability of Article 15
SECTION 3.02 Notice of Redemption; Selection of Notes 15
SECTION 3.03 Payment of Notes on Redemption; Deposit of 16
Redemption Price.
ARTICLE FOUR
SINKING FUNDS
SECTION 4.01 Applicability of Article 17
SECTION 4.02. Satisfaction of Sinking Fund Payments with 17
Notes
SECTION 4.03. Redemption of Notes for Sinking Funds 18
* The Table of Contents is not part of the Indenture.
iii
PAGE
ARTICLE FIVE
SATISFACTION AND DISCHARGE; UNCLAIMED MONEYS
SECTION 5.01 Satisfaction and Discharge of Indenture 18
SECTION 5.02 Application of Trust Funds; Indemnification 19
SECTION 5.03 Legal Defeasance 19
SECTION 5.04 Covenant Defeasance 21
SECTION 5.05 Repayment to Company 22
ARTICLE SIX
PARTICULAR COVENANTS OF THE COMPANY
SECTION 6.01 Payment of Principal and Interest 22
SECTION 6.02 Offices for Payments, Etc. 22
SECTION 6.03 Appointment to Fill a Vacancy in Office of 23
Trustee
SECTION 6.04 Provision as to Paying Agent 23
SECTION 6.05 Corporate Existence 24
SECTION 6.06 Certificates and Notice to Trustee 24
ARTICLE SEVEN
NOTEHOLDER LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
SECTION 7.01 Company to Furnish Noteholder Lists 24
SECTION 7.02 Preservation and Disclosure of Noteholder 24
Lists
SECTION 7.03 Reports by the Company 25
SECTION 7.04 Reports by the Trustee 26
ARTICLE EIGHT
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS ON
EVENTS OF DEFAULT
SECTION 8.01 Events of Default 27
SECTION 8.02 Collection of Indebtedness by Trustee; 29
Trustee May Prove Debt
SECTION 8.03 Application of Proceeds 30
SECTION 8.04 Limitations on Suits by Noteholders 31
SECTION 8.05 Suits for Enforcement 31
SECTION 8.06 Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default
SECTION 8.07 Direction of Proceedings and Waiver of 32
Defaults by Majority of Noteholders
SECTION 8.08 Notice of Default 32
SECTION 8.09 Undertaking to Pay Costs 33
SECTION 8.10 Restoration of Rights on Abandonment of 33
Proceedings
SECTION 8.11 Waiver of Usury, Stay, or Extension Laws 33
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PAGE
ARTICLE NINE
CONCERNING THE TRUSTEE
SECTION 9.01 Duties and Responsibilities of Trustee 34
SECTION 9.02 Reliance on Documents, Opinions, Etc. 35
SECTION 9.03 No Responsibility for Recitals, etc. 36
SECTION 9.04 Trustee, Authenticating Agent, Paying Agent 36
or Registrar May Own Notes
SECTION 9.05 Moneys to be Held in Trust 36
SECTION 9.06 Compensation and Expenses of Trustee 36
SECTION 9.07 Officers' Certificate as Evidence 36
SECTION 9.08 Conflicting Interest of Trustee
37
SECTION 9.09 Existence and Eligibility of Trustee
37
SECTION 9.10 Resignation or Removal of Trustee
37
SECTION 9.11 Appointment of Successor Trustee
38
SECTION 9.12 Acceptance by Successor Trustee
38
SECTION 9.13 Succession by Merger, Etc. 39
SECTION 9.14 Limitations on Rights of Trustee as a 39
Creditor
SECTION 9.15 Authenticating Agent 39
ARTICLE TEN
CONCERNING THE NOTEHOLDERS
SECTION 10.01 Action Taken by Noteholders 40
SECTION 10.02 Proof of Execution by Noteholders 40
SECTION 10.03 Persons Deemed Absolute Owners 40
SECTION 10.04 Company-Owned Notes Disregarded 40
SECTION 10.05 Revocation of Consents; Future Holders Bound 41
SECTION 10.06 Record Date for Noteholder Acts 41
ARTICLE ELEVEN
NOTEHOLDERS' MEETING
SECTION 11.01 Purposes of Meeting 41
SECTION 11.02 Call of Meetings by Trustee 42
SECTION 11.03 Call of Meetings by Company or Noteholders 42
SECTION 11.04 Qualifications for Voting 42
SECTION 11.05 Regulations 42
SECTION 11.06 Voting 43
SECTION 11.07 Rights of Trustee or Noteholders Not Delayed 43
ARTICLE TWELVE
CONSOLIDATION, MERGER, SALE, TRANSFER OR
CONVEYANCE
SECTION 12.01 Company May Consolidate, Etc. Only on 44
Certain Terms
SECTION 12.02 Successor Corporation Substituted 44
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PAGE
ARTICLE THIRTEEN
SUPPLEMENTAL INDENTURES
SECTION 13.01 Supplemental Indentures Without Consent of 44
Noteholders
SECTION 13.02 Supplemental Indentures With Consent of 45
Noteholders
SECTION 13.03 Compliance with Trust Indenture Act; Effect
of Supplemental
SECTION 13.04 Notation on Notes 47
SECTION 13.05 Evidence of Compliance of Supplemental 47
Indenture to be Furnished Trustee
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS, AND DIRECTORS
SECTION 14.01 Indenture and Notes Solely Corporate 47
Obligations
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
SECTION 15.01 Provisions Binding on Company's Successors 47
SECTION 15.02 Official Acts by Successor Corporation 47
SECTION 15.03 Notices 47
SECTION 15.04 Governing Law 48
SECTION 15.05 Evidence of Compliance with Conditions 48
Precedent
SECTION 15.06 Business Days 49
SECTION 15.07 Trust Indenture Act to Control 49
SECTION 15.08 Table of Contents, Headings, Etc. 49
SECTION 15.09 Execution in Counterparts 49
SECTION 15.10 Manner of Mailing Notice to Noteholders 49
SECTION 15.11 Approval by Trustee of Counsel 50
TESTIMONIUM 51
SIGNATURES AND SEALS 51
ACKNOWLEDGMENTS 51
vi
THIS INDENTURE, dated as of __________, 200_, between GREAT
PLAINS ENERGY INCORPORATED, a corporation duly organized and
existing under the laws of the State of Missouri (the "COMPANY"),
and THE BANK OF NEW YORK, a New York banking
company, as trustee (the "TRUSTEE").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, for its lawful corporate purposes, the Company has
duly authorized the execution and delivery of this Indenture to
provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (the
"Notes"), to be issued in one or more series as in this Indenture
provided; and
WHEREAS, all acts and things necessary to make this
Indenture a valid agreement according to its terms have been done
and performed, and the execution of this Indenture and the issue
hereunder of the Notes have in all respects been duly authorized;
NOW THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which
the Notes are, and are to be authenticated, issued and delivered,
and in consideration of the premises, of the purchase and
acceptance of the Notes by the Holders thereof and of the sum of
one dollar duly paid to it by the Trustee at the execution of
this Indenture, the receipt whereof is hereby acknowledged, the
Company covenants and agrees with the Trustee for the equal and
proportionate benefit of the respective Holders from time to time
of the Notes or of any series thereof, as follows:
ARTICLE I
DEFINITIONS
Section 1.01 GENERAL.
(a) The terms defined in this Article I (whether or not
capitalized and except as herein otherwise expressly provided or
unless the context otherwise requires) for all purposes of this
Indenture and of any indenture supplemental hereto or Company
Order (as hereinafter defined) shall have the respective meanings
specified in this Article I.
(b) All accounting terms used herein and not expressly
defined herein shall have the meanings assigned to them in
accordance with generally accepted accounting principles in the
United States of America, and, except as otherwise herein
expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted in the United States of America at the date of such
computation; PROVIDED, that when two or more principles are so
generally accepted, it shall mean that set of principles
consistent with those in use by the Company.
1
Section 1.02 TRUST INDENTURE ACT.
(a) Whenever this Indenture refers to a provision of
the Trust Indenture Act of 1939 (the "TIA"), such provision is
incorporated by reference in and made a part of this Indenture.
(b) Unless otherwise indicated, all terms used in this
Indenture that are defined by the TIA, defined by the TIA by
reference to another statute or defined by a rule of the
Commission under the TIA shall have the meanings assigned to them
in the TIA or such statute or rule as in force on the date of
execution of this Indenture.
(c) The Company and the Trustee agree to comply with
the TIA notwithstanding any exemption that may be available
thereunder.
Section 1.03 DEFINITIONS. For purposes of this Indenture,
the following terms shall have the following meanings.
"AUTHENTICATING AGENT" shall mean any agent of the Trustee
which shall be appointed and acting pursuant to Section 9.15
hereof.
"AUTHORIZED AGENT" shall mean any agent of the Company
designated as such by an Officers' Certificate delivered to the
Trustee.
"BOARD OF DIRECTORS" shall mean the Board of Directors of
the Company or the Executive Committee of such Board or any other
duly authorized committee of such Board.
"BOARD RESOLUTION" shall mean a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"BUSINESS DAY" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday that is not a day on which banking
institutions or trust companies in the Borough of Manhattan, the
City and State of New York, the state of Missouri, or in the city
where the corporate trust office of the Trustee is located, are
obligated or authorized by law or executive order to close,
except as otherwise specified in a Company Order pursuant to
Section 2.05 hereof.
"COMMISSION" shall mean the United States Securities and
Exchange Commission, or if at any time hereafter the Commission
is not existing or performing the duties now assigned to it under
the TIA, then the body performing such duties.
"COMPANY" shall mean the corporation named as the "Company"
in the first paragraph of this Indenture, and its successors and
assigns permitted hereunder.
"COMPANY ORDER" shall mean a written order or certificate
signed in the name of the Company by one of the Chairman, the
President, any Vice President, the Treasurer or an Assistant
Treasurer of the Company, and delivered to the Trustee. At the
Company's option, a Company Order may take the form of a
supplemental indenture to this Indenture.
2
"CORPORATE TRUST OFFICE OF THE TRUSTEE", or other similar
term, shall mean the corporate trust office of the Trustee, at
which at any particular time its corporate trust business shall
be principally administered, which shall initially be 000 Xxxxxxx
Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000.
"DEBT" shall mean any outstanding funded obligations of the
Company for money borrowed, whether or not evidenced by notes,
debentures, bonds or other securities, reimbursement obligations
under letters of credit, or guarantees of any such obligations
issued by another Person.
"DEPOSITARY" shall mean, unless otherwise specified in a
Company Order pursuant to Section 2.05 hereof, The Depository
Trust Company, New York, New York ("DTC"), or any successor
thereto registered and qualified as a clearing agency under the
Securities Exchange Act of 1934, or other applicable statute or
regulation.
"EVENT OF DEFAULT" shall mean any event specified in Section
8.01 hereof, continued for the period of time, if any, and after
the giving of the notice, if any, therein designated.
"GLOBAL NOTE" shall mean a Note that, pursuant to Section
2.05 hereof, is delivered to the Depositary or pursuant to the
instructions of the Depositary and that shall be registered in
the name of the Depositary or its nominee.
"HOLDER", "HOLDER OF NOTES" or "NOTEHOLDER" shall mean any
Person in whose name at the time a particular Note is registered
on the books of the Trustee kept for that purpose in accordance
with the terms hereof.
"INDENTURE" shall mean this instrument as originally
executed or, if amended or supplemented as herein provided, as so
amended or supplemented, and shall include the terms and
provisions of a particular series of Notes established pursuant
to Section 2.05 hereof.
"INTEREST PAYMENT DATE", when used with respect to any Note,
shall mean (a) each date designated as such for the payment of
interest on such Note specified in a Company Order pursuant to
Section 2.05 hereof (provided that the first Interest Payment
Date for such Note, the Original Issue Date of which is after a
Regular Record Date but prior to the respective Interest Payment
Date, shall be the Interest Payment Date following the next
succeeding Regular Record Date), (b) a date of Maturity of such
Note and (c) only with respect to defaulted interest on such
Note, the date established by the Trustee for the payment of such
defaulted interest pursuant to Section 2.11 hereof.
"MATURITY," when used with respect to any Note, shall mean
the date on which the principal of such Note becomes due and
payable as therein or herein provided, whether at the Stated
Maturity thereof or by declaration of acceleration, redemption or
otherwise.
"NOTE" or "NOTES" has the meaning stated in the first
recital of this Indenture and more particularly means any note or
notes, as the case may be, authenticated and delivered under this
Indenture, including any Global Note.
"OFFICERS' CERTIFICATE" when used with respect to the
Company, shall mean a certificate signed by one of the Chairman,
the President, any Vice President, and by the Treasurer, any
Assistant Treasurer, or the Secretary or an Assistant Secretary
of the Company; provided, that no individual shall be entitled to
sign in more than one capacity.
3
"OPINION OF COUNSEL" shall mean an opinion in writing signed
by legal counsel, who may be an employee of the Company, meeting
the applicable requirements of Section 15.05 hereof. If the
Indenture requires the delivery of an Opinion of Counsel to the
Trustee, the text and substance of which has been previously
delivered to the Trustee, the Company may satisfy such
requirement by the delivery by the legal counsel that delivered
such previous Opinion of Counsel of a letter to the Trustee to
the effect that the Trustee may rely on such previous Opinion of
Counsel as if such Opinion of Counsel was dated and delivered the
date delivery of such Opinion of Counsel is required. Any Opinion
of Counsel may contain reasonable conditions and qualifications
satisfactory to the Trustee.
"ORIGINAL ISSUE DATE" shall mean for a Note, or portions
thereof, the date upon which it, or such portion, was issued by
the Company pursuant to this Indenture and authenticated by the
Trustee (other than in connection with a transfer, exchange or
substitution).
"OUTSTANDING", when used with reference to Notes, shall,
subject to Section 10.04 hereof, mean, as of any particular time,
all Notes authenticated and delivered by the Trustee under this
Indenture, except:
(a) Notes theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Notes, or portions thereof, for the payment or
redemption of which moneys in the necessary amount shall
have been deposited in trust with the Trustee or with any
paying agent (other than the Company), provided that if such
Notes are to be redeemed prior to the Stated Maturity
thereof, notice of such redemption shall have been given as
provided in Article III, or provisions satisfactory to the
Trustee shall have been made for giving such notice;
(c) Notes, or portions thereof, that have been paid and
discharged or are deemed to have been paid and discharged
pursuant to the provisions of this Indenture; and
(d) Notes in lieu of or in substitution for which other
Notes shall have been authenticated and delivered, or which
have been paid, pursuant to Section 2.07 hereof.
"PERIODIC OFFERING" means an offering of Notes of a series
from time to time the specific terms of which Notes, including
without limitation the rate or rates of interest, if any,
thereon, the Stated Maturity or Maturities thereof and the
redemption provisions, if any, with respect thereto, are to be
determined by the Company or its agents upon the issuance of such
Notes.
"PERSON" shall mean any individual, corporation, company
partnership, joint venture, limited liability company,
association, joint-stock company, trust, unincorporated
organization or government or any agent or political subdivision
thereof.
"PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY" shall mean 0000
Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, or such other place where
the main corporate offices of the Company are located as
designated in writing to the Trustee by an Authorized Agent.
"REGULAR RECORD DATE" shall mean, unless otherwise specified
in a Company Order pursuant to Section 2.05 hereof, for an
Interest Payment Date for a particular Note (except for an
Interest Payment Date with respect to defaulted interest on such
Note) (a) the fifteenth day
4
next preceding each Interest Payment Date (unless the Interest
Payment Date is the date of Maturity of such Note, in which
event, the Regular Record Date shall be as described in
clause (b) hereof) and (b) the date of Maturity of such Note.
"RESPONSIBLE OFFICER" or "RESPONSIBLE OFFICERS" when used
with respect to the Trustee shall mean one or more of the
following: any vice president, assistant vice president or any
assistant treasurer, or any other officer or assistant officer
of the Trustee customarily performing functions similar to
those performed by the persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter
is referred because of his or her knowledge of and familiarity
with the particular subject.
"SPECIAL RECORD DATE" shall mean, with respect to any Note,
the date established by the Trustee in connection with the
payment of defaulted interest on such Note pursuant to Section
2.11 hereof.
"STATED MATURITY" shall mean with respect to any Note, the
last date on which principal on such Note becomes due and payable
as therein or herein provided, other than by declaration of
acceleration or by redemption.
"SUBSIDIARY" shall mean, as to any Person, any corporation
or other entity of which at least a majority of the securities or
other ownership interest having ordinary voting power (absolutely
or contingently) for the election of directors or other Persons
performing similar functions are at the time owned directly or
indirectly by such Person.
"TRUSTEE" shall mean The Bank of New York and, subject to
Article IX, shall also include any successor Trustee.
"U.S. GOVERNMENT OBLIGATIONS" shall mean (i) direct non-
callable obligations of, or non-callable obligations guaranteed
as to timely payment of principal and interest by, the United
States of America or obligations of a person controlled or
supervised by and acting as an agency or instrumentality thereof
for the payment of which obligations or guarantee the full faith
and credit of the United States is pledged or (ii) certificates
or receipts representing direct ownership interests in
obligations or specified portions (such as principal or interest)
of obligations described in clause (i) above, which obligations
are held by a custodian in safekeeping in a manner satisfactory
to the Trustee.
ARTICLE II
FORM, ISSUE, EXECUTION, REGISTRATION AND
EXCHANGE OF NOTES
Section 2.01 FORMS GENERALLY.
(a) The Notes shall be in such form as shall be
established by a Company Order pursuant to Section 2.05(c) hereof
with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture,
and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as
may be required to comply with applicable rules of any securities
exchange or of the Depositary or with applicable law or as may,
consistently herewith, be determined by the officers executing
such Notes, as evidenced by their execution of such Notes.
5
(b) The definitive Notes shall be typed, printed,
lithographed or engraved on steel engraved borders or may be
produced in any other manner, all as determined by the officers
executing such Notes, as evidenced by their execution of such
Notes.
Section 2.02 FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION. The Trustee's certificate of authentication on
all Notes shall be in substantially the following form:
Trustee's Certificate of Authentication
This Note is one of the Notes of the series herein
designated, described or provided for in the within-mentioned
Indenture.
The Bank of New York, as Trustee
By:
---------------------------
Authorized Signatory
Section 2.03 AMOUNT UNLIMITED. The aggregate principal
amount of Notes that may be authenticated and delivered under
this Indenture is unlimited, subject to compliance with the
provisions of this Indenture.
Section 2.04 DENOMINATIONS, DATES, INTEREST PAYMENT AND
RECORD DATES.
(a) The Notes of each series shall be issuable in
registered form without coupons in denominations of $1,000 and
integral multiples thereof or such other amount or amounts as may
be authorized by the Board of Directors or a Company Order
pursuant to a Board Resolution or in one or more indentures
supplemental hereto; provided, that the principal amount of a
Global Note shall not exceed $500,000,000 unless otherwise
permitted by the Depositary.
(b) Each Note shall be dated and issued as of the date
of its authentication by the Trustee, and shall bear an Original
Issue Date; each Note issued upon transfer, exchange or
substitution of a Note shall bear the Original Issue Date or
Dates of such transferred, exchanged or substituted Note, subject
to the provisions of Section 2.13(d) hereof.
(c) Each Note shall accrue interest from the later of
(1) its Original Issue Date or the date specified in such Note
and (2) the most recent date to which interest has been paid or
duly provided for with respect to such Note until the principal
of such Note is paid or made available for payment, and interest
on each Note shall be payable on each Interest Payment Date after
the Original Issue Date.
(d) Each Note shall mature on a Stated Maturity
specified in the Note. The principal amount of each outstanding
Note shall be payable on the Stated Maturity date specified
therein.
(e) Unless otherwise specified in a Company Order
pursuant to Section 2.05 hereof, interest on each of the Notes
shall be calculated on the basis of a 360-day year of twelve 30-
day months (and for any partial periods shall be calculated on
the basis of the number of days elapsed in a 360-day year of
twelve 30-day months) and shall be computed at a fixed rate until
the Stated Maturity of such Notes. The method of computing
interest on any Notes not
6
bearing a fixed rate of interest shall be set forth in a
Company Order pursuant to Section 2.05 hereof. Unless otherwise
specified in a Company Order pursuant to Section 2.05 hereof,
principal, interest and premium on the Notes shall be payable
in the currency of the United States.
(f) Except as provided in the following sentence, the
Person in whose name any Note is registered at the close of
business on any Regular Record Date or Special Record Date with
respect to an Interest Payment Date for such Note shall be
entitled to receive the interest payable on such Interest Payment
Date notwithstanding the cancellation of such Note upon any
registration of transfer, exchange or substitution of such Note
subsequent to such Regular Record Date or Special Record Date and
prior to such Interest Payment Date. Any interest payable at
Maturity shall be paid to the Person to whom the principal of
such Note is payable.
(g) So long as the Trustee is the registrar and paying
agent, the Trustee shall, as soon as practicable but no later
than the Regular Record Date preceding each applicable Interest
Payment Date, provide to the Company a list of the principal,
interest and premium to be paid on Notes on such Interest Payment
Date. The Trustee shall assume responsibility for withholding
taxes on interest paid as required by law except with respect to
any Global Note.
Section 2.05 EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
(a) The Notes shall be executed on behalf of the
Company by one of its Chairman, President, or any Vice President
and by its Treasurer or an Assistant Treasurer or the Secretary
or an Assistant Secretary of the Company. The signature of any of
these officers on the Notes may be manual or facsimile.
Typographical and other minor errors or defects in any such
signature shall not affect the validity or enforceability of any
Note that has been duly authenticated and delivered by the
Trustee.
(b) Notes bearing the manual or facsimile signatures of
individuals who were at the time of execution the proper officers
of the Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior
to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
(c) At any time and from time to time after the
execution and delivery of this Indenture, the Company may deliver
Notes of any series executed by the Company to the Trustee for
authentication, together with or preceded by one or more Company
Orders for the authentication and delivery of such Notes, and the
Trustee in accordance with any such Company Order shall
authenticate and make available for delivery such Notes;
provided, however, that, with respect to Notes of a series
subject to a Periodic Offering, (A) such Company Order may be
delivered by the Company to the Trustee prior to the delivery to
the Trustee of such Notes for authentication and delivery, (B)
the Trustee shall authenticate and deliver Notes of such series
for original issue from time to time, in an aggregate principal
amount not exceeding the aggregate principal amount established
for such series, all pursuant to a further Company Order or
pursuant to such procedures acceptable to the Trustee as may
be specified from time to time by such further Company Order,
(C) the Stated Maturity or Maturities, Original Issue Date
or Dates, interest rate or rates and any other terms of
Notes of such series shall be determined by such further Company
Order or pursuant to such procedures and (D) if provided for in
such procedures, such Company Order may authorize authentication
and delivery pursuant to oral or electronic instructions from the
Company or its duly authorized agent or agents, which oral
instructions shall be promptly confirmed in writing. Such Company
Order shall specify the following with respect to each series of
Notes: (i) the
7
title of the Notes of such series (which shall distinguish the
Notes of such series from Notes of all other series) and any
limitations on the aggregate principal amount of the Notes to be
issued as part of such series, (ii) the Original Issue Date for
such series, (iii) the Stated Maturity of Notes of such series,
(iv) the interest rate or rates, or method of calculation of such
rate or rates, for such series and the date from which such interest
will accrue, (v) the terms, if any, regarding the optional or
mandatory redemption of such series, including redemption date or
dates of such series, if any, and the price or prices applicable
to such redemption, (vi) whether or not the Notes of such series
shall be issued in whole or in part in the form of a Global Note
and, if so, the Depositary for such Global Note if not DTC, (vii)
the form of the Notes of such series, (viii) the maximum annual
interest rate, if any, of the Notes permitted for such series,
(ix) the period or periods within which, the price or prices at
which and the terms and conditions upon which such series may be
repaid, in whole or in part, at the option of the Holder thereof,
(x) the establishment of any office or agency pursuant to Section
6.02 hereof, (xi) any Events of Default, in addition to those
specified in Section 8.01 hereof, with respect to the Notes
of such series, and any covenants of the Company for the benefit
of the Holders of the Notes of such series in addition to
those set forth in Articles VI and XII hereof, (xii) the
terms, if any, pursuant to which the Notes of such series may
be converted into or exchanged for shares of capital stock or
other securities of the Company, and (xiii) any other terms
of such series not inconsistent with this Indenture. With
respect to Notes of a series subject to a Periodic Offering,
such Company Order may provide general terms or parameters for
Notes of such series and provide either that the specific terms
of particular Notes of such series shall be specified in a
further Company Order or that such terms shall be determined by
the Company or its agents in accordance with such further Company
Order as contemplated by the proviso of the first sentence of
this Section 2.05(c). Prior to authenticating Notes of any
series, and in accepting the additional responsibilities under
this Indenture in relation to such Notes, the Trustee shall
receive from the Company the following at or before the issuance
of such series of Notes, and (subject to Section 9.01 hereof)
shall be fully protected in relying upon, unless and until such
documents have been superseded or revoked prior to such issuance:
(1) A Board Resolution authorizing such Company Order
or Orders and, if the form of Notes is established by a
Board Resolution or a Company Order pursuant to a Board
Resolution, a copy of such Board Resolution;
(2) At the option of the Company, either an Opinion of
Counsel or a letter addressed to the Trustee permitting
it to rely on an Opinion of Counsel, stating
substantially the following subject to customary
qualifications and exceptions:
(A) if the form of such Notes has been established
by or pursuant to a Board Resolution, a Company
Order pursuant to a Board Resolution, or in a
supplemental indenture as permitted by Section
2.01 hereof, that such form has been established
in conformity with this Indenture;
(B) that this Indenture has been duly authorized,
executed and delivered by the Company and
constitutes a valid and binding agreement of the
Company, enforceable against the Company in
accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium and other
similar laws relating to or affecting creditors'
rights generally, general equitable principles
(whether considered in a proceeding at law or in
equity) and by an implied covenant of
reasonableness, good faith and fair dealing;
8
(C) that this Indenture is qualified to the extent
necessary under the TIA or, if not so required,
that this Indenture is not required to be
qualified under the TIA;
(D) that such Notes have been duly authorized and
executed by the Company, and when authenticated 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
binding obligations of the Company, enforceable
against the Company in accordance with their
respective terms, except as may be limited by
bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium and other similar laws
relating to or affecting creditors' rights
generally, general equitable principles (whether
considered in a proceeding at law or in equity)
and by an implied covenant of reasonableness, good
faith and fair dealing;
(E) that the issuance of such Notes will not
result in any default under this Indenture;
(F) that all consents or approvals of the
Commission (or any successor agency) under the
Public Utility Holding Company Act of 1935 and of
any other federal or state regulatory agency
required in connection with the Company's
execution and delivery of this Indenture and such
Notes have been obtained and are in full force and
effect (except that no statement need be made with
respect to state securities laws); and
(G) that all conditions that must be met by the
Company to issue Notes under this Indenture have
been met.
(3) An Officers' Certificate stating that (i) the
Company is not, and upon the authentication by the
Trustee of such Notes, will not be in default under any
of the terms or covenants contained in this Indenture
and (ii) all conditions that must be met by the Company
to issue Notes under this Indenture have been met.
(d) No Note shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there
appears on such Note a certificate of authentication
substantially in the form provided for herein executed by the
Trustee by the manual signature of an authorized officer, and
such certificate upon any Note shall be conclusive evidence, and
the only evidence, that such Note has been duly authenticated and
delivered hereunder and
is entitled to the benefits of this Indenture.
(e) If all Notes of a series are not to be
authenticated and issued at one time in connection with a
Periodic Offering, the Company shall not be required to deliver
the Company Order, Board Resolution, Officers' Certificate and
Opinion of Counsel (including any of the foregoing that would be
otherwise required pursuant to Section 15.05 hereof) described in
Section 2.05(c) hereof at or prior to the authentication of each
Note of such series, if such items are delivered at or prior to
the time of authentication of the first Note of such series to be
authenticated and issued.
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Section 2.06 EXCHANGE AND REGISTRATION OF TRANSFER OF NOTES.
(a) Subject to Section 2.13 hereof, Notes of any series
may be exchanged for one or more new Notes of the same series of
any authorized denominations and of a like aggregate principal
amount, series and Stated Maturity and having the same terms and
Original Issue Date. Notes to be exchanged shall be surrendered
at any of the offices or agencies to be maintained pursuant to
Section 6.02 hereof, and the Trustee shall authenticate and
deliver in exchange therefor the Note or Notes of such series
which the Noteholder making the exchange shall be entitled to
receive.
(b) The Trustee shall keep, at one of said offices or
agencies, a register or registers in which, subject to such
reasonable regulations as it may prescribe, the Trustee shall
register or cause to be registered Notes and shall register or
cause to be registered the transfer of Notes as in this Article
II provided. Such register shall be in written form or in any
other form capable of being converted into written form within a
reasonable time. At all reasonable times, such register shall be
open for inspection by the Company. Upon due presentment for
registration of transfer of any Note at any such office or
agency, the Company shall execute and the Trustee shall register,
authenticate and deliver in the name of the transferee or
transferees one or more new Notes of any authorized denominations
and of a like aggregate principal amount, series and
Stated Maturity and having the same terms and Original Issue Date.
(c) All Notes presented for registration of transfer or
for exchange, redemption or payment shall be duly endorsed by, or
be accompanied by a written instrument or instruments of transfer
in form satisfactory to the Company and the Trustee and duly
executed by the Holder or the attorney in fact of such Holder
duly authorized in writing.
(d) No service charge shall be made for any exchange or
registration of transfer of Notes, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith.
(e) The Trustee shall not be required to exchange or
register the transfer of any Notes selected, called or being
called for redemption (including Notes, if any, redeemable at the
option of the Holder provided such Notes are then redeemable at
such Holder's option) except, in the case of any Note to be
redeemed in part, the portion thereof not to be so redeemed.
(f) If the principal amount, and applicable premium, of
part, but not all of a Global Note is paid, then upon surrender
to the Trustee of such Global Note, the Company shall execute,
and the Trustee shall authenticate, deliver and register, a
Global Note in an authorized denomination in aggregate principal
amount equal to, and having the same terms, Original Issue Date
and series as, the unpaid portion of such Global Note.
Section 2.07 MUTILATED, DESTROYED, LOST OR STOLEN NOTES.
(a) If any temporary or definitive Note shall become
mutilated or be destroyed, lost or stolen, the Company shall
execute, and upon its written request the Trustee shall
authenticate and deliver, a new Note of like form and principal
amount and having the same terms and Original Issue Date and
bearing a number not contemporaneously outstanding, in exchange
and substitution for the mutilated Note, or in lieu of and in
substitution for the Note so destroyed, lost or stolen. In
every case the applicant for a substituted Note shall furnish
to the Company, the Trustee and any paying agent or
Authenticating Agent such security or indemnity as may be
10
required by them to save each of them harmless, and, in every
case of destruction, loss or theft of a Note, the applicant shall
also furnish to the Company and to the Trustee evidence to their
satisfaction of the destruction, loss or theft of such Note and
of the ownership thereof.
(b) The Trustee shall authenticate any such substituted
Note and deliver the same upon the written request or
authorization of any officer of the Company. Upon the issuance of
any substituted Note, the Company may require the payment of a
sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses
connected therewith. If any Note which has matured, is about to
mature, has been redeemed or called for redemption shall become
mutilated or be destroyed, lost or stolen, the Company may,
instead of issuing a substituted Note, pay or authorize the
payment of the same (without surrender thereof except in the case
of a mutilated Note) if the applicant for such payment shall
furnish to the Company, the Trustee and any paying agent or
Authenticating Agent such security or indemnity as may be
required by them to save each of them harmless and, in case of
destruction, loss or theft, evidence satisfactory to the Company
and the Trustee of the destruction, loss or theft of such Note
and of the ownership thereof.
(c) Every substituted Note issued pursuant to this Section
2.07 by virtue of the fact that any Note is mutilated, destroyed,
lost or stolen shall constitute an additional contractual
obligation of the Company, whether or not such destroyed, lost or
stolen Note shall be found at any time, and shall be entitled to
all the benefits of this Indenture equally and proportionately
with any and all other Notes duly issued hereunder. All Notes
shall be held and owned upon the express condition that, to the
extent permitted by law, the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Notes and shall preclude to the full
extent permitted by applicable law any and all other rights or
remedies with respect to the replacement or payment of negotiable
instruments or other securities without
their surrender.
Section 2.08 TEMPORARY NOTES. Pending the preparation of
definitive Notes of any series, the Company may execute and the
Trustee shall authenticate and deliver temporary Notes (printed,
lithographed or otherwise reproduced). Temporary Notes shall be
issuable in any authorized denomination and substantially in the
form of the definitive Notes but with such omissions, insertions
and variations as may be appropriate for temporary Notes, all as
may be determined by the Company. Every such temporary Note shall
be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with the same effect, as the
definitive Notes. Without unreasonable delay the Company shall
execute and shall deliver to the Trustee definitive Notes of such
series and thereupon any or all temporary Notes of such series
shall be surrendered in exchange therefor at the corporate trust
office of the Trustee, and the Trustee shall authenticate,
deliver and register in exchange for such temporary Notes an
equal aggregate principal amount of definitive Notes of such
series. Such exchange shall be made by the Company at its own
expense and without any charge therefor to the Noteholders. Until
so exchanged, the temporary Notes of such series shall in all
respects be entitled to the same benefits under this Indenture as
definitive Notes of such series authenticated and delivered
hereunder.
Section 2.09 CANCELLATION OF NOTES PAID, ETC. All Notes
surrendered for the purpose of payment, redemption, exchange or
registration of transfer shall be surrendered to the Trustee for
cancellation and promptly cancelled by it and no Notes shall be
issued in lieu thereof except as expressly permitted by this
Indenture. The Company shall surrender to the Trustee any Notes
so acquired by it and such Notes shall be cancelled by the
Trustee. No Notes shall be authenticated in lieu of or in
exchange for any Notes so cancelled.
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Section 2.10 INTEREST RIGHTS PRESERVED. Each Note delivered
under this Indenture upon transfer of or in exchange for or in
lieu of any other Note shall carry all the rights to interest
accrued and unpaid, and to accrue, which were carried by such
other Note, and each such Note shall be so dated that neither
gain nor loss of interest shall result from such transfer,
exchange or substitution.
Section 2.11 SPECIAL RECORD DATE. If and to the extent that
the Company fails to make timely payment or provision for timely
payment of interest on any series of Notes (other than on an
Interest Payment Date that is a Maturity date), that interest
shall cease to be payable to the Persons who were the Noteholders
of such series at the applicable Regular Record Date. In that
event, when moneys become available for payment of the interest,
the Trustee shall (a) establish a date of payment of such
interest and a Special Record Date for the payment of that
interest, which Special Record Date shall be not more than 15
or fewer than 10 days prior to the date of the proposed payment
and (b) mail notice of the date of payment and of the Special
Record Date not fewer than 10 days preceding the Special Record
Date to each Noteholder of such series at the close of business
on the 15th day preceding the mailing at the address of such
Noteholder, as it appeared on the register for the Notes. On
the day so established by the Trustee, the interest shall be
payable to the Holders of the applicable Notes at the close of
business on the Special Record Date.
Section 2.12 PAYMENT OF NOTES. Payment of the principal of
and interest and premium on all Notes shall be payable as
follows:
(a) On or before 11:00 a.m., New York City time, or
such other time as shall be agreed upon between the Trustee and
the Company, of the day on which payment of principal, interest
and premium is due on any Global Note pursuant to the terms
thereof, the Company shall deliver to the Trustee funds available
on such date sufficient to make such payment, by wire transfer of
immediately available funds or by instructing the Trustee to
withdraw sufficient funds from an account maintained by the
Company with the Trustee or such other method as is
acceptable to the Trustee. On or before 12:00 noon, New York City
time, or such other time as shall be agreed upon between the
Trustee and the Depositary, of the day on which any payment of
interest is due on any Global Note (other than at Maturity), the
Trustee shall pay to the Depositary such interest in same day
funds. On or before 1:00 p.m., New York City time or such other
time as shall be agreed upon between the Trustee and the
Depositary, of the day on which principal, interest payable at
Maturity and premium, if any, is due on any Global Note, the
Trustee shall deposit with the Depositary the amount equal to the
principal, interest payable at Maturity and premium, if any, by
wire transfer into the account specified by the Depositary. As a
condition to the payment, at Maturity, of any part of the
principal of, interest on, and applicable premium of any Global
Note, the Depositary shall surrender, or cause to be surrendered,
such Global Note to the Trustee, whereupon a new Global Note
shall be issued to the Depositary pursuant to Section 2.06(f)
hereof.
(b) With respect to any Note that is not a Global Note,
principal, applicable premium and interest due at the Maturity of
the Note shall be payable in immediately available funds when due
upon presentation and surrender of such Note at the corporate
trust office of the Trustee or at the authorized office of any
paying agent in the Borough of Manhattan, The City and State of
New York. Interest on any Note that is not a Global Note (other
than interest payable at Maturity) shall be paid by check payable
in clearinghouse funds mailed to the Holder thereof at such
Holder's address as it appears on the register; provided that
if the Trustee receives a written request from any Holder of
Notes, the aggregate principal amount of which having the
12
same Interest Payment Date equals or exceeds $10,000,000, on or
before the applicable Regular Record Date for such Interest Payment
Date, interest on such Note shall be paid by wire transfer of
immediately available funds to a bank within the continental
United States designated by such Holder in its request or by
direct deposit into the account of such Holder designated by
such Holder in its request if such account is maintained with
the Trustee or any paying agent.
Section 2.13 NOTES ISSUABLE IN THE FORM OF A GLOBAL NOTE.
(a) If the Company shall establish pursuant to Section
2.05 hereof that the Notes of a particular series are to be
issued in the form of one or more Global Notes, then the Company
shall execute and the Trustee shall, in accordance with Section
2.05 hereof and the Company Order delivered to the Trustee
thereunder, authenticate and deliver such Global Note or Notes,
which, unless otherwise specified in such Company Order, (i)
shall represent, shall be denominated in an amount equal to the
aggregate principal amount of, and shall have the same terms as,
the outstanding Notes of such series to be represented by such
Global Note or Notes, (ii) shall be registered in the name of
the Depositary or its nominee, (iii) shall be delivered by the
Trustee to the Depositary or pursuant to the Depositary's
instruction and (iv) shall bear a legend substantially to the
following effect: "This Note is a Global Note registered in
the name of the Depositary (referred to herein) or a nominee
thereof and, unless and until it is exchanged in whole for the
individual Notes represented hereby as provided in the Indenture
referred to below, this Global Note may not be transferred
except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of
such successor Depositary. Unless this Global Note is presented
by an authorized representative of The Depository Trust Company
(55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx), to the Trustee for
registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co.
or such other name as requested by an authorized representative
of The Depository Trust Company and any payment is made to
Cede & Co., any transfer, pledge or other use hereof for value
or otherwise by or to any person is wrongful since the registered
owner hereof, Cede & Co., has an interest herein" or such
other legend as may be required by the rules and regulations
of the Depositary.
(b) (i) If at any time the Depositary for a Global
Note notifies the Company that it is unwilling or unable to
continue as Depositary for such Global Note or if at any time the
Depositary for the Global Note shall no longer be eligible or in
good standing under the Securities Exchange Act of 1934 or other
applicable statute or regulation, the Company shall appoint a
successor Depositary with respect to such Global Note. If a
successor Depositary for such Global Note is not appointed by the
Company within 90 days after the Company receives such notice or
becomes aware of such ineligibility, the Company's election
pursuant to Section 2.05(c)(vi) hereof shall no longer be
effective with respect to the series of Notes evidenced by such
Global Note and the Company shall execute, and the Trustee,
upon receipt of a Company Order for the authentication and
delivery of individual Notes of such series in exchange for
such Global Note, shall authenticate and deliver, individual
Notes of such series of like tenor and terms in definitive
form in an aggregate principal amount equal to the principal
amount of such Global Note in exchange for such Global Note.
The Trustee shall not be charged with knowledge or notice of
the ineligibility of a Depositary unless a Responsible Officer
shall have actual knowledge thereof.
(ii) (A) The Company may at any time and in its sole
discretion determine that all outstanding (but not
less than all) Notes of a series issued or issuable
in the
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form of one or more Global Notes shall no longer
be represented by such Global Note or Notes.
In such event the Company shall execute, and the
Trustee, upon receipt of a Company Order for the
authentication and delivery of individual Notes in
exchange for such Global Note, shall authenticate
and deliver individual Notes of like tenor and terms
in definitive form in an aggregate principal amount
equal to the principal amount of such Global Note or
Notes in exchange for such Global Note or Notes.
(B) Within seven days after the occurrence of an
Event of Default with respect to any series of
Global Notes, the Company shall execute, and the
Trustee shall authenticate and deliver, Notes of
such series in definitive registered form in any
authorized denominations and in aggregate principal
amount equal to the principal amount of such Global
Notes in exchange for such Global Notes.
(iii) In any exchange provided for in any of the
preceding two paragraphs, the Company will execute and
the Trustee will authenticate and deliver individual
Notes in definitive registered form in authorized
denominations. Upon the exchange of a Global Note for
individual Notes, such Global Note shall be cancelled
by the Trustee. Notes issued in exchange for a Global
Note pursuant to this Section shall be registered in
such names and in such authorized denominations as the
Depositary for such Global Note, pursuant to
instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Notes to the Depositary for delivery
to the persons in whose names such Notes are so
registered, or if the Depositary shall refuse or be
unable to deliver such Notes, the Trustee shall deliver
such Notes to the persons in whose names such Notes are
registered, unless otherwise agreed upon between the
Trustee and the Company, in which event the Company
shall cause the Notes to be delivered to the persons in
whose names such Notes are registered.
(c) Neither the Company, the Trustee, any
Authenticating Agent nor any paying agent shall have any
responsibility or liability for any aspect of the records
relating to, or payments made on account of, beneficial ownership
interests of a Global Note or for maintaining, supervising or
reviewing any records relating to such beneficial ownership
interest.
(d) Pursuant to the provisions of this subsection, at
the option of the Trustee (subject to Section 2.04(a) hereof) and
upon 30 days' written notice to the Depositary but not prior to
the first Interest Payment Date of the respective Global Notes,
the Depositary shall be required to surrender any two or more
Global Notes which have identical terms, including, without
limitation, identical maturities, interest rates and redemption
provisions (but which may have differing Original Issue Dates) to
the Trustee, and the Company shall execute and the Trustee shall
authenticate and deliver to, or at the direction of, the
Depositary a Global Note in principal amount equal to the
aggregate principal amount of, and with all terms identical to,
the Global Notes surrendered thereto and that shall indicate each
applicable Original Issue Date and the principal amount applicable
to each such Original Issue Date. The exchange contemplated in
this subsection shall be consummated at least 30 days prior to
any Interest Payment Date applicable to any of the Global Notes
surrendered to the Trustee. Upon any exchange of any Global
Note with two or more Original Issue Dates, whether pursuant
to this Section or pursuant to Section 2.06 or Section 3.03
hereof, the aggregate principal amount of the Notes with a
particular Original Issue Date shall be the same before and
after such
14
exchange, after giving effect to any retirement of
Notes and the Original Issue Dates applicable to such Notes
occurring in connection with such exchange.
Section 2.14 CUSIP AND ISIN NUMBERS. The Company in issuing
Notes may use "CUSIP" or "ISIN" numbers (if then generally in
use) and, if so used, the Trustee shall use "CUSIP" or "ISIN"
numbers in notices of redemption as a convenience to holders of
Notes; provided, that any such notice may state that no
representation is made as to the correctness of such numbers
either as printed on the Notes or contained in any notice of
redemption and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such
redemption shall not be affected by any defect in or omission
of such numbers. The Company shall promptly notify the Trustee
of any change in the "CUSIP" or "ISIN" numbers.
Section 2.15 EXTENSION OF INTEREST PAYMENT PERIODS. The Company
shall have the right at any time, so long as the Company is not
in default in the payment of interest on the Notes of any series
hereunder, to extend interest payment periods on all Notes of one
or more series, if so specified as contemplated by Section 2.05
with respect to such Notes and upon such terms as may be
specified as contemplated by Section 2.05 with respect to such
Notes.
ARTICLE III
REDEMPTION OF NOTES
Section 3.01 APPLICABILITY OF ARTICLE. Those Notes of any
series that are, by their terms, redeemable prior to their Stated
Maturity at the option of the Company, may be redeemed by the
Company at such times, in such amounts and at such prices as may
be specified therein and in accordance with the provisions of
this Article III.
Section 3.02 NOTICE OF REDEMPTION; SELECTION OF NOTES.
(a) The election of the Company to redeem any Notes
shall be evidenced by a Board Resolution which shall be given
with notice of redemption to the Trustee at least 45 days (or
such shorter period acceptable to the Trustee in its sole
discretion) prior to the redemption date specified in such
notice.
(b) Notice of redemption to each Holder of Notes to be
redeemed as a whole or in part shall be given by the Trustee, in
the manner provided in Section 15.10 hereof, no less than 30 or
more than 60 days prior to the date fixed for redemption. Any
notice which is given in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the
Noteholder receives the notice. In any case, failure duly to give
such notice,or any defect in such notice, to the Holder of any
Note designated for redemption as a whole or in part shall not
affect the validity of the proceedings for the redemption of any
other Note.
(c) Each such notice shall identify the Notes to be
redeemed (including "CUSIP" or "ISIN" numbers) and shall specify
the date fixed for redemption, the places of redemption and the
redemption price (or the method for calculation thereof) at which
such Notes are to be redeemed, and shall state that (subject to
subsection (e) of this section) payment of the redemption price
of such Notes or portion thereof to be redeemed will be made upon
surrender of such Notes at such places of redemption, that
interest accrued to the date fixed for redemption will be paid as
specified in such notice, and that from and after such date
interest thereon shall cease to accrue. If less than all of a
series of Notes having the same terms are to be redeemed, the
notice shall specify the Notes or portions thereof to be
redeemed. If any Note
15
is to be redeemed in part only, the notice which relates to such
Note shall state the portion of the principal amount thereof to
be redeemed, and shall state that, upon surrender of such Note,
a new Note or Notes having the same terms in aggregate principal
amount equal to the unredeemed portion thereof will be issued.
(d) Unless otherwise provided by a Company Order under
Section 2.05 hereof, if less than all of a series of Notes is to
be redeemed, the Trustee shall select in such manner as it shall
deem appropriate and fair in its discretion the particular Notes
to be redeemed in whole or in part and shall hereafter promptly
notify the Company in writing of the Notes so to be redeemed. If
less than all of a series of Notes represented by a Global Note
is to be redeemed, the particular Notes or portions thereof of
such series to be redeemed shall be selected by the Depositary
for such series of Notes in such manner as the Depositary shall
determine. Notes shall be redeemed only in denominations of
$1,000, or such other denominations authorized by a Company Order
pursuant to Section 2.05 hereof, provided that any remaining
principal amount of a Note redeemed in part shall be a
denomination authorized under this Indenture.
(e) If at the time of the mailing of any notice of
redemption at the option of the Company, the Company shall not
have irrevocably directed the Trustee to apply funds then on
deposit with the Trustee or held by it and available to be used
for the redemption of Notes to redeem all the Notes called for
redemption, such notice, at the election of the Company, may
state that it is conditional and subject to the receipt of the
redemption moneys by the Trustee on or before the date fixed for
redemption and that such notice shall be of no force and effect
unless such moneys are so received on or before such date.
Section 3.03 PAYMENT OF NOTES ON REDEMPTION; DEPOSIT OF
REDEMPTION PRICE.
(a) If notice of redemption for any Notes shall have
been given as provided in Section 3.02 hereof and such notice
shall not contain the language permitted at the Company's option
under Section 3.02(e) hereof, such Notes or portions of Notes
called for redemption shall become due and payable on the date
and at the places stated in such notice at the applicable
redemption price, together with interest accrued to the date
fixed for redemption of such Notes. Interest on the Notes or
portions thereof so called for redemption shall cease to accrue
and such Notes or portions thereof shall be deemed not to be
entitled to any benefit under this Indenture except to receive
payment of the redemption price together with interest accrued
thereon to the date fixed for redemption. Upon presentation and
surrender of such Notes at the place of payment specified in such
notice, such Notes or the specified portions thereof shall be
paid and redeemed at the applicable redemption price, together
with interest accrued thereon to the date fixed for redemption.
(b) If notice of redemption shall have been given as
provided in Section 3.02 hereof and such notice shall contain the
language permitted at the Company's option under Section 3.02(e)
hereof, such Notes or portions of Notes called for redemption
shall become due and payable on the date and at the places stated
in such notice at the applicable redemption price, together with
interest accrued to the date fixed for redemption of such Notes,
and interest on the Notes or portions thereof so called for
redemption shall cease to accrue and such Notes or portions
thereof shall be deemed not to be entitled to any benefit under
this Indenture except to receive payment of the redemption price
together with interest accrued thereon to the date fixed for
redemption; provided that, in each case, the Company shall have
deposited with the Trustee or a paying agent on or prior to 11:00
a.m. New York City time on such redemption date an amount
sufficient to pay the redemption price together with interest
accrued to the date fixed for
16
redemption. Upon the Company making such deposit and, upon
presentation and surrender of such Notes at such a place of
payment in such notice specified, such Notes or the specified
portions thereof shall be paid and redeemed at the applicable
redemption price, together with interest accrued thereon to the
date fixed for redemption. If the Company shall not make such deposit
on or prior to the redemption date, the notice of redemption shall
be of no force and effect and the principal on such Notes or
specified portions thereof shall continue to bear interest as if
the notice of redemption had not been given.
(c) No notice of redemption of Notes shall be mailed
during the continuance of any Event of Default, except (1) that,
when notice of redemption of any Notes has been mailed, the
Company shall redeem such Notes but only if funds sufficient for
that purpose have prior to the occurrence of such Event of
Default been deposited with the Trustee or a paying agent for
such purpose, and (2) that notices of redemption of all
outstanding Notes may be given during the continuance of an Event
of Default.
(d) Upon surrender of any Note redeemed in part only,
the Company shall execute, and the Trustee shall authenticate,
deliver and register, a new Note or Notes of authorized
denominations in aggregate principal amount equal to, and having
the same terms, Original Issue Date or Dates and series as, the
unredeemed portion of the Note so surrendered.
ARTICLE IV
SINKING FUNDS
Section 4.01 APPLICABILITY OF ARTICLE. The provisions of
this Article shall be applicable to any sinking fund for the
retirement of the Notes of any series, except as otherwise
specified as contemplated by Section 2.05(c) hereof for Notes of
such series.
The minimum amount of any sinking fund payment provided for
by the terms of Notes of any series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of
such minimum amount provided for by the terms of Notes of any
series is herein referred to as an "optional sinking fund
payment". If provided for by the terms of Notes of any series,
the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 4.02 hereof. Each sinking fund
payment shall be applied to the redemption of Notes of the series
in respect of which it was made as provided for by the terms of
such Notes.
Section 4.02 SATISFACTION OF SINKING FUND PAYMENTS WITH
NOTES. The Company (a) may deliver Outstanding Notes (other than
any previously called for redemption) of a series in respect of
which a mandatory sinking fund payment is to be made and (b) may
apply as a credit Notes of such series which have been redeemed
either at the election of the Company pursuant to the terms of
such Notes or through the application of permitted optional
sinking fund payments pursuant to the terms of such Notes, in
each case in satisfaction of all or any part of such mandatory
sinking fund payment; provided, however, that no Notes shall be
applied in satisfaction of a mandatory sinking fund payment if
such Notes shall have been previously so applied. Notes so
applied shall be received and credited for such purpose by the
Trustee at the redemption price specified in such Notes for
redemption through operation of the sinking fund and the amount
of such mandatory sinking fund payment shall be reduced
accordingly.
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Section 4.03 REDEMPTION OF NOTES FOR SINKING FUND. Not less
than 45 days prior to each sinking fund payment date for the
Notes of any series, the Company shall deliver to the Trustee an
Officers' Certificate specifying:
(a) the amount of the next succeeding mandatory sinking
fund payment for such series;
(b) the amount, if any, of the optional sinking fund payment
to be made together with such mandatory sinking fund
payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking fund
payment which is to be satisfied by the payment of cash; and
(e) the portion, if any, of such aggregate sinking fund
payment which is to be satisfied by delivering and crediting
Notes of such series pursuant to Section 4.02 hereof and
stating the basis for such credit and that such Notes have
not previously been so credited.
The Company shall also deliver to the Trustee any Notes to be so
delivered. If the Company shall not deliver such Officers'
Certificate, the next succeeding sinking fund payment for such
series shall be made entirely in cash in the amount of the
mandatory sinking fund payment. Not less than 30 days before each
such sinking fund payment date the Trustee shall select the Notes
to be redeemed upon such sinking fund payment date in the manner
specified in Section 3.02(d) hereof and cause notice of the
redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 3.02 hereof.
Such notice having been duly given, the redemption of such Notes
shall be made upon the terms and in the manner stated in Section
3.03 hereof.
ARTICLE V
SATISFACTION AND DISCHARGE; UNCLAIMED MONEYS
Section 5.01 SATISFACTION AND DISCHARGE OF INDENTURE. This
Indenture shall upon the request of the Company cease to be of
further effect with respect to the Notes of any series (except as
to any surviving rights of registration of transfer or exchange
of Notes of such series herein expressly provided for), and the
Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this
Indenture, when:
(a) either:
(i) all Notes of such series previously authenticated
and delivered (other than Notes of such series which
have been destroyed, lost or stolen and which have been
replaced or paid) have been delivered to the Trustee
for cancellation; or
(ii) all the Notes of such series not
previously delivered to the Trustee for cancellation have
become due and payable (whether at stated maturity, early
redemption or otherwise), and the Company has deposited, or
caused to be deposited, irrevocably with the Trustee as
funds in trust solely for the benefit of the Holders of the
Notes of such series an amount in cash sufficient to pay
principal of, premium, if any, and interest on all
outstanding Notes of such series;
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(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company with respect to the Notes
of such series; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture with respect to
the Notes of such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture
with respect to the Notes of any or all series, the obligations
of the Company to the Trustee under Section 9.06 hereof shall
survive, and, if money will have been deposited with the Trustee
pursuant to subclause (ii) of clause (a) of this Section 5.01,
the obligations of the Trustee under Sections 5.02 and 5.05
hereof shall survive.
Section 5.02 APPLICATION OF TRUST FUNDS; INDEMNIFICATION.
(a) Subject to the provisions of Section 5.05 hereof,
all money and U.S. Government Obligations deposited with the
Trustee pursuant to Section 5.01, 5.03 or 5.04 hereof and all
money received by the Trustee in respect of U.S. Government
Obligations deposited with the Trustee pursuant to Sections
5.01,5.03 or 5.04 hereof, shall be held in trust and applied by
it, in accordance with the provisions of the Notes of any
particular series and this Indenture, to the payment, either
directly or through any paying agent as the Trustee may
determine, to the persons entitled thereto, of the principal,
premium, if any, and interest for whose payment such money has
been deposited with or received by the Trustee.
(b) The Company shall pay and shall indemnify the
Trustee against any tax, fee or other charge imposed on or
assessed against U.S. Government Obligations deposited pursuant
to Sections 5.01, 5.03 or 5.04 hereof or the interest, premium,
if any, and principal received in respect of such obligations
other than any payable by or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company
from time to time upon the request of the Company any U.S.
Government Obligations or money held by it as provided in
Sections 5.01, 5.03 or 5.04 hereof which, in the opinion of a
nationally recognized firm of independent certified public
accountants expressed in a written certification thereof
delivered to the Trustee, are then in excess of the amount
thereof which then would have been required to be deposited for
the purpose for which such U.S. Government Obligations or money
were deposited or received. This provision shall not authorize
the sale by the Trustee of any U.S. Government Obligations held
under this Indenture.
Section 5.03 LEGAL DEFEASANCE. The Company shall be deemed
to have been discharged from its obligations with respect to all
of the outstanding Notes of any series on the day after the date
of the deposit referred to in subparagraph (i) hereof, and the
provisions of this Indenture, as it relates to the outstanding
Notes of such series, shall no longer be in effect (and the
Trustee, at the expense of the Company, shall, upon the request
of the Company, execute proper instruments acknowledging the
same), except as to:
(a) the rights of Holders of the Notes of such series to
receive, solely from the trust funds described in
subparagraph (i) below, payments of the principal of,
premium, if any, or interest on the outstanding Notes of
such series on the date such payments are due;
19
(b) the Company's obligations with respect to the Notes of
such series under Sections 2.06, 2.07, 2.13, 6.02 and 6.04
hereof; and
(c) the rights, powers, trust and immunities of the Trustee
hereunder and the duties of the Trustee under Section 5.02
hereof and the duty of the Trustee to authenticate Notes of
such series issued on registration of transfer of exchange;
provided that the following conditions shall have been
satisfied:
(i) the Company shall have deposited, or caused to be
deposited, irrevocably with the Trustee as funds in
trust for the purpose of making the following payments,
specifically pledged as security for and dedicated
solely to the benefit of the Holders of the Notes of
such series, cash in U.S. dollars and/or U.S.
Government Obligations which through the payment of
interest and principal in respect thereof, in
accordance with their terms, will provide (without
reinvestment), not later than one day before the due
date of any payment of money, an amount in cash,
sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee,
to pay principal of, premium, if any, and interest on
all the Notes of such series on the dates such payments
of principal, premium, if any, or interest are due to
maturity or redemption;
(ii) no Event of Default or event which with the giving
of notice or lapse of time or both would become an
Event of Default with respect to the Notes of such
series shall have occurred and be continuing on the
date of such deposit and 91 days shall have passed
after the deposit has been made, and, during such 91
day period, no Default with respect to the Notes of
such series specified in Section 8.01(a)(5) or (6)
hereof with respect to the Company occurs which is
continuing at the end of such period;
(iii) the Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel to
the effect that (A) the Company has received from, or
there has been published by, the Internal Revenue
Service a ruling, or (B) since the date of execution of
this Indenture, there has been a change in the
applicable federal income tax law, in either case to
the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of the Notes of
such series will not recognize income, gain or loss for
federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject
to federal income tax in the same amounts, in the same
manner and at the same times as would have been the
case if such deposit, defeasance and discharge had not
occurred;
(iv) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not
made by the Company with the intent of preferring the
Holders of the Notes of such series over any other
creditors of the Company or with the intent of
defeating, hindering, delaying or defrauding any other
creditors of the Company;
(v) such deposit shall not cause the Trustee to have a
conflicting interest within the meaning of the TIA with
respect to any securities of the Company or result in
the trust arising from such deposit constituting an
"investment company" (as defined in the Investment
Company Act of 1940, as amended); and
20
(vi) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent relating to the
defeasance contemplated by this Section 5.03 have been
complied with.
Subject to compliance with this Article V, the Company may
exercise its option under this Section 5.03 notwithstanding the
prior exercise of its option under Section 5.04 with respect to
the Notes of any series. Following a defeasance, payment of the
Notes of such series may not be accelerated because of an Event
of Default.
Section 5.04 COVENANT DEFEASANCE. On and after the day after
the date of the deposit referred to in subparagraph (a) hereof,
the Company may omit to comply with any term, provision or
condition set forth under Section 6.05 and Article XII hereof as
well as any additional covenants contained in a supplemental
indenture hereto (and the failure to comply with any such
provisions shall not constitute a Default or Event of Default
under Section 8.01 hereof) and the occurrence of any event
described in clause (3) and (4) of Section 8.01(a) hereof shall
not constitute a Default or Event of Default hereunder, with
respect to the Notes of any series, provided that the following
conditions shall have been satisfied:
(a) with reference to this Section 5.04, the Company has
deposited, or caused to be deposited, irrevocably (except as
provided in Section 5.05 hereof) with the Trustee as funds
in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Notes
of such series, cash in U.S. dollars and/or U.S. Government
Obligations which through the payment of principal and
interest in respect thereof, in accordance with their terms,
will provide (without reinvestment), not later than one day
before the due date of any payment of money, an amount in
cash, sufficient, in the opinion of a nationally recognized
firm of independent certified public accountants expressed
in a written certification thereof delivered to the Trustee,
to pay principal, premium, if any, and interest on all the
Notes of such series on the dates such payments of
principal, premium, if any, and interest are due to maturity
or redemption;
(b) no Event of Default or event which with the giving of
notice or lapse of time or both would become an Event of
Default with respect to the Notes of such series shall have
occurred and be continuing on the date of such deposit and
91 days shall have passed after the deposit has been made,
and, during such 91 day period, no Default with respect to
the Notes of such series specified in Section 8.01(a)(5) or
(6) hereof with respect to the Company occurs which is
continuing at the end of such period;
(c) the Company shall have delivered to the Trustee an
Opinion of Counsel confirming that Holders of the Notes of
such series will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and
defeasance and will be subject to federal income tax in the
same amounts, in the same manner and at the same times as
would have been the case if such deposit and defeasance had
not occurred;
(d) the Company shall have delivered to the Trustee an
Officers' Certificate stating the deposit was not made by
the Company with the intent of preferring the Holders of the
Notes of such series over any other creditors of the Company
or with the intent of defeating, hindering, delaying or
defrauding any other creditors of the Company;
(e) such deposit shall not cause the Trustee to have a
conflicting interest within the meaning of the TIA with
respect to any securities of the Company or result in the
trust
21
arising from such deposit constituting an "investment
company" (as defined in the Investment Company Act of 1940,
as amended);
(f) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for
relating to the defeasance contemplated by this Section 5.04
have been complied with; and
(g) following a covenant defeasance, payment of the Notes of
any series may not be accelerated because of an Event of
Default specified in Sections 8.01(a)(5) and (6) or by
reference to Sections 6.05 and 8.01(a)(3) and (4) and
Article XII hereof.
Section 5.05 REPAYMENT TO COMPANY. The Trustee and the
paying agent shall pay to the Company upon request any money held
by them for the payment of principal, premium, if any, or
interest that remains unclaimed for two years after the date upon
which such payment shall have become due. After payment to the
Company, Holders of the Notes of such series entitled to the
money must look to the Company for payment as general creditors
unless an applicable abandoned property law designates another
Person.
ARTICLE VI
PARTICULAR COVENANTS OF THE COMPANY
Section 6.01 PAYMENT OF PRINCIPAL AND INTEREST. The Company
covenants and agrees for the benefit of the Holders of the Notes
of any series that it will duly and punctually pay or cause to be
paid the principal of and any premium and interest, if any, on,
such Notes at the places, at the respective times and in the
manner provided in such Notes or in this Indenture.
Section 6.02 OFFICES FOR PAYMENTS, ETC. So long as the Notes
of any series are outstanding hereunder, the Company will
maintain an office or agency where the Notes of such series may
be presented for payment, for exchange as in this Indenture
provided, for registration of transfer as in this Indenture
provided, and where notices and demands to or upon the Company in
respect of the securities under this Indenture may be served.
The Principal Executive Offices of the Company will 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. If the Company shall fail to give such notice
of the location or of any change in the location of any of the
above offices or agencies, presentations and demands may be made
and notices may be served at the Corporate Trust Office of the
Trustee, and, in such event, the Trustee shall act as the
Company's agent to receive all such presentations, surrenders,
notices and demands.
The Company may from time to time designate one or more
additional offices or agencies where the Notes of any series may
be presented for payment, for exchange as in this Indenture
provided and for registration of transfer as in this Indenture
provided, and the Company may from time to time rescind any such
designation; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its
obligation to maintain any office or agency provided for in
this Section. The Company will give to the Trustee prompt
written notice of any such designation or rescission thereof
and of any change in the location of any such other office or
agency.
22
Section 6.03 APPOINTMENT TO FILL A VACANCY IN OFFICE OF
TRUSTEE. The Company, whenever necessary to avoid or fill a
vacancy in the office of Trustee, will appoint, in the manner
provided in Section 9.11, a Trustee, so that there shall at all
times be a Trustee hereunder.
Section 6.04 PROVISION AS TO PAYING AGENT. The Trustee shall
be the paying agent for the Notes and, at the option of the
Company, the Company may appoint additional paying agents
(including without limitation itself or its Subsidiary unless an
Event of Default has occurred and is continuing). Whenever the
Company shall appoint a paying agent other than the Trustee with
respect to the Notes, 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 the provisions of this
Section:
(1) that such paying agent will hold all sums received
by it as such agent for the payment of the principal of or
interest, if any, on the Notes (whether such sums have been paid
to it by the Company or by any other obligor on the Notes) in
trust for the benefit of the Holders of the Notes, or of the
Trustee until such sums shall be paid to such Holders or
otherwise disposed of as herein provided;
(2) that such paying agent will give the Trustee notice
of any failure by the Company (or by any other obligor on Notes)
to make any payment of the principal of, premium if any, or
interest on the Notes when the same shall be due and payable; and
(3) that such paying agent will at any time during the
continuance of any such failure, upon the written request of the
Trustee, forthwith pay to the Trustee all sums so held in trust
by such paying agent.
The Company will, on or prior to each due date of the
principal of and any premium, if any, or interest on the Notes,
deposit with the paying agent a sum sufficient to pay such
principal and any premium or interest so becoming due, such sum
to be held in trust for the benefit of the Holders of the Notes
entitled to such principal of and any premium or interest, and
(unless such paying agent is the Trustee) the Company will
promptly notify the Trustee of any failure to take such action.
If the Company or its Subsidiary shall act as its own paying
agent with respect to the Notes, it will, on or before each due
date of the principal of (and premium, if any) or interest, if
any, on the Notes, set aside, segregate and hold in trust for the
benefit of the Holders of the Notes, a sum sufficient to pay such
principal (and premium, if any) or interest, if any, so becoming
due until such sums shall be paid to such Holders or otherwise
disposed of as herein provided. The Company will promptly notify
the Trustee of any failure to take such action.
The Company may at any time pay or cause to be paid to the
Trustee all sums held in trust by it or any paying agent
hereunder, as required by this Section, such sums to be held by
the Trustee upon the trusts herein contained, and, upon such
payment by any paying agent to the Trustee, such paying agent
shall be released from all further liability with respect to such
money.
Anything in this Section to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this Section
is subject to the provisions of Sections 5.03 and 5.04.
23
Section 6.05 CORPORATE EXISTENCE. Subject to the rights of
the Company under Article XII, the Company shall do or cause to
be done all things necessary to preserve and keep in full force
and effect its corporate existence and the rights (charter and
statutory) and franchises of the Company; provided, however, that
the Company shall not be required to preserve any such right or
franchise if, in the judgment of the Company, the preservation
thereof is no longer desirable in the conduct of the business of
the Company.
Section 6.06 CERTIFICATES AND NOTICE TO TRUSTEE. The Company
shall, on or before __________ of each year, commencing
_______________, deliver to the Trustee a certificate from its
principal executive officer, principal financial officer or
principal accounting officer covering the preceding calendar year
and stating whether or not, to the knowledge of such Person, the
Company has complied with all conditions and covenants under this
Indenture, and, if not, describing in reasonable detail any
failure by the Company to comply with any such conditions or
covenants. For purposes of this Section, compliance shall be
determined without regard to any period of grace or requirement
of notice provided under this Indenture.
ARTICLE VII
NOTEHOLDER LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE
Section 7.01 COMPANY TO FURNISH NOTEHOLDER LISTS. The
Company and any other obligor on the Notes shall furnish or cause
to be furnished to the Trustee a list in such form as the Trustee
may reasonably require of the names and addresses of the Holders
of the Notes:
(a) semi-annually and not more than 15 days after each
Regular Record Date for each Interest Payment Date that is not a
Maturity date, as of such Regular Record Date, and such list need
not include information received after such date; 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, as of a date not more than 15 days prior to the time
such information is furnished, and such list need not include
information received after such date; provided that if and so
long as the Trustee shall be the registrar for the Notes, such
list shall not be required to be furnished.
Section 7.02 PRESERVATION AND DISCLOSURE OF NOTEHOLDER
LISTS.
(a) The Trustee shall preserve, in as current a form as
is reasonably practicable, all information as to the names and
addresses of the Holders of the Notes (i) contained in the most
recent lists furnished to it as provided in Section 7.01, (ii)
received by it in the capacity of registrar for the Notes, if so
acting, and (iii) filed with it within the two preceding years
pursuant to Section 7.04(d)(2). The Trustee may destroy any list
furnished to it as provided in Section 7.01 upon receipt of a new
list so furnished.
(b) In case three or more Holders of Notes (hereinafter
referred to as "applicants") apply in writing to the Trustee and
furnish to the Trustee reasonable (in the discretion of the
Trustee) proof that each such applicant has owned a Note for a
period of at least six months preceding the date of such
application, and such application states that the applicants desire
to communicate with other Holders of Notes with respect to their
rights under this Indenture or under the Notes and such application
is accompanied by a copy of the form of proxy or other communication
which such applicants
24
propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election, either
(i) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with
the provisions of subsection (a) of this Section; or
(ii) inform such applicants as to the approximate number
of Holders whose names and addresses appear in the
information preserved at the time by the Trustee, in
accordance with the provisions of such subsection (a) and
as to the approximate cost of mailing to such Holders the
form of proxy or other communication, if any, specified
in such application.
If the Trustee shall elect not to afford to such applicants
access to such information, the Trustee shall, upon the written
request of such applicants, mail to each Holder of Notes, whose
name and address appears in the information preserved at the time
by the Trustee in accordance with the provisions of such
subsection (a) a copy of the form of proxy or other communication
which is specified in such request, with reasonable promptness
after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses
of mailing, unless within five days after such tender the Trustee
shall mail to such applicants and file with the Commission,
together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interests of the Holders or
would be in violation of applicable law. Such written statement
shall specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the
written statement so filed, shall enter an order refusing to
sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall
find, after notice and opportunity for hearing, that all the
objections so sustained have been met, and shall enter an order
so declaring, the Trustee shall mail copies of such material to
all such Holders with reasonable promptness after the entry of
such order and the renewal of such tender; otherwise the Trustee
shall be relieved of any obligation or duty to such applicants
respecting their application.
(c) Each and every Holder of a Note, by receiving and
holding the same, agrees with the Company and the Trustee that
neither the Company nor the Trustee nor any agent of the Company
or the Trustee shall be held accountable by reason of the
disclosure of any such information as to the names and addresses
of the Holders of Notes in accordance with the provisions of
subsection (b) of this Section, 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 under such subsection (b).
Section 7.03 REPORTS BY THE COMPANY. The Company shall:
(a) file with the Trustee, within 15 days after the
Company is required to file the same with the Commission, copies
of the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not
required to file information, documents or reports pursuant to
either of said Sections, then it will file with the Trustee and
the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports
which may be required pursuant to Section 13
25
of the Securities Exchange Act of 1934 in respect of a security
listed and registered on a national securities exchange as may
be prescribed from time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to
time by the Commission, such additional information, documents
and reports with respect to compliance by the Company with the
conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations. Filing of such
information, documents and reports with the Trustee is for
informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information
contained therein or determinable from information contained
therein, including the Company's compliance with any of its
covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officers' Certificates); and
(c) transmit by mail to all Holders of Notes, within 30
days after the filing thereof with the Trustee in the manner and
to the extent provided in Section 7.04(d), such summaries of any
information, documents and reports required to be filed by the
Company pursuant to paragraphs (a) and (b) of this Section as may
be required by rules and regulations prescribed from time to time
by the Commission.
Note that, for purposes of this Section 7.03, the Company's
responsibility to file information with the Trustee which is also
filed with the Commission, shall be deemed to be satisfied by the
posting of the Company's filings with the Commission on the
Commission's website (xxx.xxx.xxx/xxxxx).
Section 7.04 REPORTS BY THE TRUSTEE.
(a) Annually, not later than August 15 of each year,
the Trustee shall transmit by mail a brief report dated as of
such date that complies with Section 313(a) of the TIA (to the
extent required by such Section).
(b) The Trustee shall from time to time transmit by
mail brief reports that comply, both in content and date of
delivery, with Section 313(b) of the TIA (to the extent required
by such Section).
(c) A copy of each such report filed pursuant to this
section shall, at the time of such transmission to such Holders,
be filed by the Trustee with each stock exchange upon which any
Notes are listed and also with the Commission. The Company will
notify the Trustee promptly in writing upon the listing of such
Notes on any stock exchange or any delisting thereof.
(d) Except as otherwise described in Section 7.03,
reports pursuant to this Section shall be transmitted:
(1) by mail to all Holders of Notes, as their names and
addresses appear in the register for the Notes;
(2) by mail to such Holders of Notes as have, within the
two years preceding such transmission, filed their names
and addresses with the Trustee for such purpose;
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(3) by mail, except in the case of reports pursuant to
Section 7.04(b) and (c) hereof, to all Holders of Notes
whose names and addresses have been furnished to or
received by the Trustee pursuant to Section 7.0 and
7.02(a)(ii) hereof; and
(4) at the time such report is transmitted to the Holders
of the Notes, to each exchange on which Notes are listed
and also with the Commission.
ARTICLE VIII
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS
ON EVENTS OF DEFAULT
Section 8.01 EVENTS OF DEFAULT.
(a) If one or more of the following Events of Default
with respect to the Notes of any series shall have occurred and
be continuing:
(1) default in the payment of any installment of interest
upon any Note of such series as and when the same shall
become due and payable, and continuance of such default
for a period of thirty (30) days, provided, however, that
a valid extension of the interest payment period or
deferral of interest payment by the Company as
contemplated in Section 2.15 shall not constitute a
failure to pay interest for this purpose;
(2) default in the payment of the principal of or any
premium on any Note of such series as and when the same
shall become due and payable, and continuance of such
default for a period of one (1) day;
(3) failure on the part of the Company duly to observe or
perform any other covenants or agreements on the part of
the Company contained in this Indenture (other than a
covenant or agreement that has been expressly included in
this Indenture solely for the benefit of one or more
series of Notes other than such series) for a period of
sixty (60) days after the date on which written notice
specifying such failure, stating that such notice is a
"Notice of Default" hereunder and demanding that the
Company remedy the same, shall have been given to the
Company by the Trustee by registered mail, or to the
Company and the Trustee by the Holders of not less than
33% in aggregate principal amount of the Notes of such
series at the time outstanding;
(4) a court having jurisdiction in the premises shall
enter a decree or order for relief in respect of the
Company in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or
hereafter in effect, adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any
applicable law, or appointing a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or similar
official) of the Company or for any substantial part of
the property of the Company, or ordering the winding up
or liquidation of the affairs of the Company, and such
decree or order shall remain unstayed and in effect for a
period of sixty (60) consecutive days;
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(5) the Company shall commence a voluntary case or
proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar law now or hereafter in
effect or any other case or proceeding to be adjudicated
a bankrupt or insolvent, or consent to the entry of a
decree or order for relief in an involuntary case under
any such law, or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking
reorganization or relief under any applicable law, or
consent to the filing of such petition or to the
appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee or sequestrator
(or similar official) of the Company or for any
substantial part of the property of the Company, or make
any general assignment for the benefit of creditors, or
the notice by it in writing of its inability to pay its
debts generally as they become due, or the taking of any
corporate action by the Company in furtherance of any
such action; or
(6) any other Event of Default specified with respect to
Notes of any series pursuant to Section 2.05 hereof;
then, unless the principal of and interest on all of the Notes
shall have already become due and payable, either the Trustee or
the Holders of a majority in aggregate principal amount of the
Notes of such series then outstanding, by notice in writing to
the Company (and to the Trustee if given by such Holders), may
declare the principal of and interest on all the Notes of such
series to be due and payable immediately and upon any such
declaration the same shall become immediately due and payable,
anything in this Indenture or in the Notes of such series
contained to the contrary notwithstanding; provided, however,
that if an Event of Default shall have occurred and be continuing
with respect to more than one series of Notes, the Trustee or the
Holders of a majority in aggregate principal amount of the
Outstanding Notes of all such series, considered as one class,
may make such declaration of acceleration, and not the Holders of
the Notes of any one of such series.
The foregoing paragraph, however, is subject to the
condition that if, at any time after the principal of and
interest on the Notes of any 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 of the Notes of such series and the principal
of and any premium on any and all Notes of such series which
shall have become due otherwise than by acceleration (with
interest on overdue installments of interest, to the extent that
payment of such interest is enforceable under applicable law, and
on such principal and applicable premium at the rate borne by the
Notes of such series to the date of such payment or deposit) and
all sums paid or advanced by the Trustee hereunder, the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 9.06 hereof, and any and all Events of
Default, other than the non-payment of principal of and accrued
interest on any Notes which shall have become due solely by
acceleration of maturity, shall have been cured or waived, then
and in every such case such payment or deposit shall cause an
automatic waiver of the Event of Default and its consequences and
shall cause an automatic rescission and annulment of the
acceleration of the Notes of such series; but no such waiver or
rescission and annulment shall extend to or shall affect any
subsequent default, or shall impair any right consequent thereon.
(b) If the Trustee shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been
discontinued or abandoned because of such rescission or
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annulment or for any other reason or shall have been determined
adversely to the Trustee, then and in every such case the Company
and the Trustee shall be restored respectively to their several
positions and rights hereunder, and all rights, remedies and powers
of the Company and the Trustee shall continue as though no such
proceeding had been taken.
Section 8.02 COLLECTION OF INDEBTEDNESS BY TRUSTEE; TRUSTEE
MAY PROVE DEBT.
(a) The Company covenants that if an Event of Default
described in clause (a)(1) or (a)(2) of Section 8.01 hereof shall
have occurred and be continuing, then, upon demand of the
Trustee, the Company shall pay to the Trustee, for the benefit of
the Holders of the Notes of the series with respect to which
Event of Default shall have occurred and is continuing, the whole
amount that then shall have so become due and payable on all such
Notes for principal or interest, as the case may be, with
interest upon the overdue principal and any premium and (to the
extent that payment of such interest is enforceable under
applicable law) upon the overdue installments of interest at the
rate borne by such Notes; and, in addition thereto, such further
amounts as shall be sufficient to cover the costs and expenses of
collection, including reasonable compensation to the Trustee, its
agents, attorneys and counsel, any expenses or liabilities
incurred by the Trustee hereunder other than through its
negligence or bad faith. Until such demand is made by the
Trustee, the Company may pay the principal of and interest on
such Notes to the Holders, whether or not such Notes be overdue.
(b) 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 actions or proceedings at law or in equity for
the collection of the sums so due and unpaid, and may enforce any
such judgment or final decree against the Company or any other
obligor on such Notes and collect in the manner provided by law
out of the property of the Company or any other obligor on such
Notes wherever situated, the moneys adjudged or decreed to be
payable.
(c) In case there shall be pending proceedings relative
to the Company or any other obligor upon the Notes under Title 11
of the United States Code or any other applicable Federal or
state bankruptcy, insolvency or other similar law, or in case a
receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Company or its property
or such other obligor, or in case of any other comparable
judicial proceedings relative to the Company or such other
obligor, or to the creditors or property of the Company or such
other obligor, the Trustee, irrespective of whether the principal
of the Notes shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand pursuant to the provisions of
this Section, shall be entitled and empowered, by intervention in
such proceedings or otherwise:
(1) to file and prove a claim or claims for the
whole amount of the principal and interest owing and unpaid in
respect of the Notes, and to file such other papers or documents
as may be necessary or advisable in order to have the claims of
the Trustee and of the Noteholders allowed in any judicial
proceedings relative to the Company or such other obligor, or to
the creditors or property of the Company or such other obligor;
and
(2) to collect and receive any moneys or other
property payable or deliverable on any such claims, and to
distribute all amounts received with respect to the claims of the
Noteholders and of the Trustee on their behalf; and any trustee,
receiver, liquidator, custodian
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or other similar official is hereby authorized by each of the
Noteholders to make payments to the Trustee, and, in the event
that the Trustee shall consent to the making of the payments
directly to the Noteholders, to pay to Trustee such amounts
due pursuant to Section 9.06 hereof.
(d) Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or vote for or
accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting
the Notes 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 in any such proceeding except to vote for the election of
a trustee in bankruptcy or similar person.
(e) All rights of action and of asserting claims under
this Indenture, or under any of the Notes may be prosecuted and
enforced by the Trustee without the possession of any of the
Notes or the production thereof at any trial or other proceedings
relative thereto, and any such action or proceedings instituted
by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment, subject to the
payment of the expenses, disbursements and compensation of the
Trustee and its agents, attorneys and counsel, shall be for the
ratable benefit of the Holders of the Notes in respect of which
such action was taken.
(f) 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 Notes
in respect to which action was taken, and it shall not be
necessary to make any Holders of such Notes parties to any such
proceedings.
Section 8.03 APPLICATION OF PROCEEDS. Any moneys collected
by the Trustee with respect to any of the Notes pursuant to this
Article shall be applied in the following order, at the date or
dates fixed by the Trustee for the distribution of such moneys,
upon presentation of the several Notes, and stamping thereon the
payment, if only partially paid, and upon surrender thereof if
fully paid.
FIRST: To the payment of all amounts due to the Trustee
pursuant to Section 9.06 hereof;
SECOND: In case the principal of the outstanding Notes in
respect of which such moneys have been collected shall not have
become due and be unpaid, to the payment of interest on the
Notes, in the order of the maturity of the installments of such
interest, with interest (to the extent allowed by law) upon the
overdue installments of interest at the rate borne by the Notes,
such payments to be made ratably to the persons entitled thereto,
and then to the payment to the Holders entitled thereto of the
unpaid principal of and applicable premium on any of the Notes
which shall have become due (other than Notes previously called
for redemption for the payment of which moneys are held pursuant
to the provisions of this Indenture), whether at stated maturity
or by redemption, in the order of their due dates, beginning with
the earliest due date, and if the amount available is not
sufficient to pay in full all Notes due on any particular date,
then to the payment thereof ratably, according to the amounts of
principal and applicable premium due on that date, to the Holders
entitled thereto, without any discrimination or privilege;
THIRD: In case the principal of the outstanding Notes in
respect of which such moneys have been collected shall have
become due, by declaration or otherwise, to the payment of the
whole amount then owing and unpaid upon the Notes for principal
and any premium and interest thereon, with interest on the
overdue principal and any premium and (to the extent allowed by
law) upon overdue installments of interest at the rate borne by
the Notes; and in case such moneys shall be insufficient to pay
in full the whole amount so due and unpaid upon the Notes,
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then to the payment of such principal and any premium and interest
without preference or priority of principal and any premium over
interest, or of interest over principal and any premium or of any
installment of interest over any other installment of interest,
or of any Note over any other Note, ratably to the aggregate of
such principal and any premium and accrued and unpaid interest;
and
FOURTH: To the payment of the remainder, if any, to the
Company or its successors or assigns, or to whomsoever may
lawfully be entitled to the same, or as a court of competent
jurisdiction may determine.
Section 8.04 LIMITATIONS ON SUITS BY NOTEHOLDERS.
(a) No Holder of any Note of any series shall have any
right by virtue of or by availing of any provision of this
Indenture to institute any suit, action or proceeding in equity
or at law upon or under or with respect to this Indenture or for
the appointment of a receiver or trustee, or for any other remedy
hereunder, unless such Holder previously shall have given to the
Trustee written notice of an Event of Default with respect to
such Note and of the continuance thereof, as hereinabove
provided, and unless also Noteholders of a majority in aggregate
principal amount of the Notes of all series then outstanding in
respect of which an Event of Default has occurred and is
continuing, considered as one class, shall have made written
request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee for 60 days after
its receipt of such notice, request and offer of indemnity, shall
have neglected or refused to institute any such action, suit or
proceeding; it being understood and intended, and being expressly
covenanted by the taker and Holder of every Note of any series
with every other taker and Holder and the Trustee, that no one or
more Holders of Notes 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 any other
Holder of Notes of such series, or to obtain or seek to obtain
priority over or preference to any other such Holder or to
enforce any right under this Indenture, except in the manner
herein provided and for the equal, ratable and common benefit of
all Holders of Notes of such series. For the protection and
enforcement of the provisions of this Section, each and every
Noteholder and the Trustee shall be entitled to such relief as
can be given either at law or in equity.
(b) Notwithstanding any other provision in this
Indenture, however, the rights of any Holder of any Note to
receive payment of the principal of and any premium and interest
on such Note, on or after the respective due dates expressed in
such Note or on the applicable redemption date, or to institute
suit for the enforcement of any such payment on or after such
respective dates are absolute and unconditional, and shall not be
impaired or affected without the consent of such Holder.
Section 8.05 SUITS FOR ENFORCEMENT. In case an Event of
Default has occurred, has not been waived and is continuing
hereunder, the Trustee may in its discretion proceed to protect
and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any of such rights, either by
suit in equity or by action at law or by proceeding in bankruptcy
or otherwise, whether for the specific enforcement of any
covenant or agreement contained in this Indenture or in aid of
the exercise of any power granted to it under this Indenture, or
to enforce any other legal or equitable right vested in the
Trustee by this Indenture or by law.
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Section 8.06 POWERS AND REMEDIES CUMULATIVE; DELAY OR
OMISSION NOT WAIVER OF DEFAULT. No right or remedy herein
conferred upon or reserved to the Trustee or to the Holders of
Notes is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law,
be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity
or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of
Notes to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any
such right or power or shall be construed to be a waiver of any
such Event of Default or an acquiescence therein; and, subject to
Section 8.04, every right and power given by this Indenture or by
law to the Trustee or to the Holders of Notes may be exercised
from time to time, and as often as shall be deemed expedient, by
the Trustee or by the Holders of Notes, as the case may be.
Section 8.07 DIRECTION OF PROCEEDINGS AND WAIVER OF DEFAULTS
BY MAJORITY OF NOTEHOLDERS.
(a) The Holders of a majority in aggregate principal
amount of the Notes 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; provided, however, that if an Event of Default shall
have occurred and be continuing with respect to more than one
series of Notes, the Holders of a majority in aggregate principal
amount of the Outstanding Notes of all such series, considered as
one class, shall have the right to make such direction, and not
the Holders of the Notes of any one of such series; provided,
further, that such direction shall not be otherwise than in
accordance with law and the provisions of this Indenture; and
provided further that (subject to Section 9.01 hereof) the
Trustee shall have the right to decline to follow any such
direction if the Trustee being advised by counsel determines that
the action or proceeding so directed may not lawfully be taken or
if the Trustee in good faith by its board of directors or
trustees, executive committee, or a trust committee of directors
or trustees or responsible officers shall determine that the
action or proceeding so directed would involve the Trustee in
personal liability. Nothing in this Indenture shall impair the
right of the Trustee in its discretion to take any action deemed
proper by the Trustee and which is not inconsistent with such
direction or directions by Noteholders.
(b) The Holders of a majority in aggregate principal
amount of the Notes of any series at the time outstanding may on
behalf of all of the Holders of the Notes of such series waive
any past default or Event of Default hereunder and its
consequences except a default in the payment of principal of or
any premium or interest on the Notes of such series. Upon any
such waiver the Company, the Trustee and the Holders of the Notes
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 Event of Default or impair
any right consequent thereon. Upon such waiver, such default
shall cease to exist and be deemed to have been cured and not to
be continuing, and any Event of Default arising therefrom shall
be deemed to have been cured and not to be continuing, for every
purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any
right consequent thereon.
Section 8.08 NOTICE OF DEFAULT. The Trustee shall, within 90
days after the occurrence of a default with respect to the Notes
of any series, give to all Holders of the Notes of such
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series, in the manner provided in Section 15.10, notice of such
default actually known to the Trustee, unless such default shall
have been cured or waived before the giving of such notice, the
term "default" for the purpose of this Section 8.08 being hereby
defined to be any event which is or after notice or lapse of time
or both would become an Event of Default; provided that, except
in the case of default in the payment of the principal of or any
premium or interest on any of the Notes of such series, or in the
payment of any sinking or purchase fund installments, the Trustee
shall be protected in withholding such notice if and so long as
its board of directors or trustees, executive committee, or a
trust committee of directors or trustees or responsible officers
in good faith determines that the withholding of such notice is
in the interests of the Holders of the Notes of such series.
Section 8.09 UNDERTAKING TO PAY COSTS. All parties to this
Indenture agree, and each Holder of any Note by acceptance
thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right
or remedy under this Indenture or in any suit against the Trustee
for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to
pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses
made by such party litigant; but this Section 8.09 shall not
apply to any suit instituted by the Trustee, or to any suit
instituted by any Noteholder, or group of Noteholders, holding in
the aggregate more than 10% in principal amount of the Notes of
all series in respect of which such suit may be brought,
considered as one class, or to any suit instituted by any
Noteholder for the enforcement of the payment of the principal of
or any premium or interest on any Note on or after the due date
expressed in such Note or the applicable redemption date.
Section 8.10 RESTORATION OF RIGHTS ON ABANDONMENT OF
PROCEEDINGS. In case the Trustee or any Holder shall have
proceeded to enforce any right under this Indenture and such
proceedings shall have been discontinued or abandoned for any
reason, or shall have been determined adversely to the Trustee or
to such Holder, then, and in every such case, the Company, the
Trustee and the Holders shall be restored respectively to their
former positions and rights hereunder, and all rights, remedies
and powers of the Company, the Trustee and the Holders shall
continue as though no such proceedings had been taken.
Section 8.11 WAIVER OF USURY, STAY OR EXTENSION LAWS. The
Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury,
stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
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ARTICLE IX
CONCERNING THE TRUSTEE
Section 9.01 DUTIES AND RESPONSIBILITIES OF TRUSTEE.
(a) The Trustee, prior to the occurrence of an Event of
Default and after the curing of all Events of Default which may
have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. If an
Event of Default 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, 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.
(b) No provisions 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:
(1) prior to the occurrence of any Event of Default and after
the curing or waiving of all Events of Default which may have
occurred:
(A) the duties and obligations of the Trustee 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
(B) 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 (but
need not confirm or investigate the accuracy of
mathematical calculations or other facts stated
therein);
(2) 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
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith
in accordance with the direction, pursuant to this
Indenture, of the Holders of a majority in aggregate
principal amount of the Notes of any one or more series,
as provided herein, including, but not limited to,
Section 8.07 hereof relating to the time, method and
place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or
power conferred upon the Trustee under this Indenture
with respect to the Notes of such series.
(c) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder,
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or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 9.02 RELIANCE ON DOCUMENTS, OPINIONS, ETC. Except as
otherwise provided in Section 9.01 hereof:
(a) the Trustee may conclusively rely and shall be
protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, note 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 by an
Officers' Certificate (unless other evidence in respect thereof
is herein specifically prescribed); and any Board Resolution may
be evidenced to the Trustee by a copy thereof certified by the
Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel of its
selection and any advice or 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
accordance with such advice or Opinion of Counsel;
(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
Noteholders, pursuant to this Indenture, unless such Noteholders
shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities
which may be incurred by such exercise;
(e) 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;
(f) prior to the occurrence of an Event of Default
hereunder and after the curing or waiving of all Events of
Default, 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, consent,
order, approval, note or other paper or document, unless
requested in writing to do so by the Holders of a majority in
aggregate principal amount of the then outstanding Notes of any
series; provided that if the payment within a reasonable time to
the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by this Indenture, the Trustee may
require indemnity satisfactory to it against such expense or
liability as a condition to so proceeding;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or
through agents or attorneys; provided that the Trustee shall not
be liable for the conduct or acts of any such agent or attorney
that shall have been appointed in accordance herewith with due
care; and
(h) the rights, privileges, protections, immunities
and benefits given to the Trustee, including, without limitation,
its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder,
and each agent, custodian and other Person employed to act
hereunder.
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Section 9.03 NO RESPONSIBILITY FOR RECITALS, ETC. The
recitals contained herein and in the Notes (except in the
certificate of authentication) 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 Notes.
The Trustee shall not be accountable for the use or application
by the Company of any Notes or the proceeds of any Notes
authenticated and delivered by the Trustee in conformity with
this Indenture.
Section 9.04 TRUSTEE, AUTHENTICATING AGENT, PAYING AGENT OR
REGISTRAR MAY OWN NOTES. The Trustee and any Authenticating Agent
or paying agent in its individual or other capacity, may become
the owner or pledgee of Notes with the same rights it would have
if it were not Trustee, Authenticating Agent or paying agent.
Section 9.05 MONEYS TO BE HELD IN TRUST. Subject to Section
5.05 hereof, all moneys received by the Trustee shall, until used
or applied as herein provided, be held in trust for the purposes
for which they were received, but need not be segregated from
other funds except to the extent required by law. The Trustee
may allow and credit to the Company interest on any money
received hereunder at such rate, if any, as may be agreed upon by
the Company and the Trustee from time to time as may be permitted
by law.
Section 9.06 COMPENSATION AND EXPENSES OF TRUSTEE. The
Company covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to, such compensation as
the Company and the Trustee shall from time to time agree in writing
(which shall not be limited by any law in regard to the compensation
of a trustee of an express trust), and the Company shall pay or
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Trustee in accordance with this Indenture (including the
reasonable compensation and the reasonable expenses and
disbursements of its counsel and agents, including any
Authenticating Agents, 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. The Company also
covenants to indemnify each of the Trustee or any predecessor and
their agents, directors, employees, and nominees for, and to
hold them harmless against, any loss, liability or expense
incurred without negligence or bad faith on the part of them
and arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses
of defending themselves against any claim or liability. The
obligations of the Company under this Section 9.06 to
compensate the Trustee and to pay or reimburse the Trustee for
expenses, disbursements and advances shall constitute additional
indebtedness hereunder. Such additional indebtedness shall be
secured by a lien prior to that of the Notes 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 any particular
Notes. When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 801(a)(4)
or Section 801(a)(5), 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 applicable Federal or state bankruptcy, insolvency or
other similar law. The provisions of this Section 9.06 shall
survive termination of this Indenture.
Section 9.07 OFFICERS' CERTIFICATE AS EVIDENCE. Whenever in
the administration of this Indenture, the Trustee shall deem it
necessary or desirable that a matter be proved or established
prior to the taking, suffering or omitting of any action
hereunder, such matter (unless other evidence in respect thereof
is herein specifically prescribed) may, in the absence of
negligence or 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 Officers'
Certificate, in the absence of negligence or 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 this Indenture in
reliance thereon.
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Section 9.08 CONFLICTING INTEREST OF TRUSTEE. The Trustee
shall be subject to and shall comply with the provisions of
Section 310(b) of the TIA. Nothing in this Indenture shall be
deemed to prohibit the Trustee or the Company from making any
application permitted pursuant to such section.
Section 9.09 EXISTENCE AND ELIGIBILITY OF TRUSTEE. There
shall at all times be a Trustee hereunder which Trustee shall at
all times be a corporation organized and doing business under the
laws of the United States or any State thereof or of the District
of Columbia having a combined capital and surplus of at least
$50,000,000 and which is authorized under such laws to exercise
corporate trust powers and is subject to supervision or
examination by Federal or State authorities. If such corporation
publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid authority, then for the
purposes of this Section 9.09, the combined capital and surplus
shall be deemed to be as set forth in its most recent report of
condition so published. No obligor upon the Notes or Person
directly or indirectly controlling, controlled by, or under
common control with such obligor shall serve as Trustee. If at
any time the Trustee shall cease to be eligible in accordance
with this Section 9.09, the Trustee shall resign immediately in
the manner and with the effect specified in Section 9.10 hereof.
Section 9.10 RESIGNATION OR REMOVAL OF TRUSTEE.
(a) Pursuant to the provisions of this Article, the
Trustee may at any time resign and be discharged of the trusts
created by this Indenture by giving written notice to the Company
specifying the day upon which such resignation shall take effect,
and such resignation shall take effect immediately upon the later
of the appointment of a successor trustee and such day.
(b) Any Trustee may be removed at any time with respect
to the Notes of any series by an instrument or concurrent
instruments in writing filed with such Trustee and signed and
acknowledged by the Holders of a majority in aggregate principal
amount of the then outstanding Notes of such series or by their
attorneys in fact duly authorized.
(c) So long as no Event of Default has occurred and is
continuing, and no event has occurred and is continuing that,
with the giving of notice or the lapse of time or both, would
become an Event of Default, the Company may remove any Trustee
upon written notice to the Holder of each Note Outstanding and
the Trustee and appoint a successor Trustee meeting the
requirements of Section 9.09. The Company or the successor
Trustee shall give notice to the Holders, in the manner provided
in Section 15.10, of such removal and appointment within 30 days
of such removal and appointment.
(d) If at any time (i) the Trustee shall cease to be
eligible in accordance with Section 9.09 hereof and shall fail to
resign after written request therefor by the Company or by any
Holder who has been a bona fide Holder for at least six months,
(ii) the Trustee shall fail to comply with Section 9.08 hereof
after written request therefor by the Company or any such Holder,
or (iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or
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 the Trustee may be removed forthwith by an instrument or
concurrent instruments in writing filed with the Trustee and
either:
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(1) signed by the Chairman, the President or any Vice
President of the Company and attested by the Secretary or
an Assistant Secretary of the Company; or
(2) signed and acknowledged by the Holders of a majority
in principal amount of outstanding Notes or by their
attorneys in fact duly authorized.
(e) Any resignation or removal of the Trustee shall not
become effective until acceptance of appointment by the successor
Trustee as provided in Section 9.11 hereof.
Section 9.11 APPOINTMENT OF SUCCESSOR TRUSTEE.
(a) If at any time the Trustee shall resign or be
removed, the Company, by a Board Resolution, shall promptly
appoint a successor Trustee.
(b) The Company shall provide written notice of its
appointment of a Successor Trustee to the Holder of each Note
Outstanding following any such appointment.
(c) If no appointment of a successor Trustee shall be
made pursuant to Section 9.11(a) hereof within 60 days after
appointment shall be required, any Noteholder or the resigning
Trustee may apply to any court of competent jurisdiction to
appoint a successor Trustee. Said court may thereupon after such
notice, if any, as such court may deem proper and prescribe,
appoint a successor Trustee.
(d) Any Trustee appointed under this Section 9.11 as a
successor Trustee shall be a bank or trust company eligible under
Section 9.09 hereof and qualified under Section 9.08 hereof.
Section 9.12 ACCEPTANCE BY SUCCESSOR TRUSTEE.
(a) Any successor Trustee appointed as provided in
Section 9.11 hereof shall execute, acknowledge and deliver to the
Company and to its predecessor Trustee 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,
duties and obligations 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 Section 9.06 hereof,
execute and deliver an instrument transferring to such successor
Trustee all the rights and powers of the Trustee so ceasing to
act. Upon request of any such successor Trustee, the Company
shall execute any and all instruments in writing in order more
fully and certainly to vest in and confirm 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 9.06 hereof.
(b) No successor Trustee shall accept appointment as
provided in this Section 9.12 unless at the time of such
acceptance such successor Trustee shall be qualified under
Section 9.08 hereof and eligible under Section 9.09 hereof.
(c) Upon acceptance of appointment by a successor
Trustee as provided in this Section 9.12, the successor Trustee
shall mail notice of its succession hereunder to all Holders of
Notes as the names and addresses of such Holders appear on the
registry books.
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Section 9.13 SUCCESSION BY MERGER, ETC.
(a) Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to or purchasing all or substantially all
of the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder without the execution or filing
of any paper or any further act on the part of any of the parties
hereto, provided such corporation shall be otherwise qualified
and eligible under this Article.
(b) If at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the Notes
shall have been authenticated but not delivered, any such
successor to the Trustee may adopt the certificate of
authentication of any predecessor Trustee, and deliver such Notes
so authenticated; and in case at that time any of the Notes shall
not have been authenticated, any successor to the Trustee may
authenticate such Notes either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all
such cases such certificates shall have the full force which it
is anywhere in the Notes or in this Indenture provided that the
certificates of the Trustee shall have; provided that the right
to adopt the certificate of authentication of any predecessor
Trustee or authenticate Notes in the name of any predecessor
Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
Section 9.14 LIMITATIONS ON RIGHTS OF TRUSTEE AS A CREDITOR.
The Trustee shall be subject to, and shall comply with, the
provisions of Section 311 of the TIA.
Section 9.15 AUTHENTICATING AGENT.
(a) There may be one or more Authenticating Agents
appointed by the Trustee with the written consent of the Company,
with power to act on its behalf and subject to the direction of
the Trustee in the authentication and delivery of Notes in
connection with transfers and exchanges under Sections 2.06,
2.07, 2.08, 2.13, 3.03, and 13.04 hereof, as fully to all intents
and purposes as though such Authenticating Agents had been
expressly authorized by those Sections to authenticate and
deliver Notes. For all purposes of this Indenture, the
authentication and delivery of Notes by any Authenticating Agent
pursuant to this Section 9.15 shall be deemed to be the
authentication and delivery of such Notes "by the Trustee." Any
such Authenticating Agent shall be a bank or trust company or
other Person of the character and qualifications set forth in
Section 9.09 hereof.
(b) Any corporation into which any Authenticating Agent
may be merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, conversion or
consolidation to which any Authenticating Agent shall be a party,
or any corporation succeeding to the corporate trust business of
any Authenticating Agent, shall be the successor of such
Authenticating Agent hereunder, if such successor corporation is
otherwise eligible under this Section 9.15, without the execution
or filing of any paper or any further act on the part of the
parties hereto or such Authenticating Agent or such successor
corporation.
(c) Any Authenticating Agent may at any time resign by
giving written notice of resignation to the Trustee and to the
Company. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to
such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon
39
such a termination, or in case at any time any Authenticating Agent
shall cease to be eligible under this Section 9.15, the Trustee
may, with the written consent of the Company, appoint a successor
Authenticating Agent, and upon so doing shall give written notice
of such appointment to the Company and shall mail, in the manner
provided in Section 15.10, notice of such appointment to the
Holders of Notes.
(d) The Trustee agrees to pay to each Authenticating
Agent from time to time reasonable compensation for its services,
and the Trustee shall be entitled to be reimbursed for such
payments, in accordance with Section 9.06 hereof.
(e) Sections 9.02, 9.03, 9.06, 9.07 and 9.09 hereof
shall be applicable to any Authenticating Agent.
ARTICLE X
CONCERNING THE NOTEHOLDERS
Section 10.01 ACTION BY NOTEHOLDERS. Whenever in this
Indenture it is provided that the Holders of a specified
percentage in aggregate principal amount of the Notes of any
series may take any action, the fact that at the time of taking
any such action the Holders of such specified percentage have
joined therein may be evidenced (a) by any instrument or any
number of instruments of similar tenor executed by such
Noteholders in person or by agent or proxy appointed in writing,
(b) by the record of such Noteholders voting in favor thereof at
any meeting of Noteholders duly called and held in accordance
with Article XI hereof, or (c) by a combination of such
instrument or instruments and any such record of such a meeting
of Noteholders.
Section 10.02 PROOF OF EXECUTION BY NOTEHOLDERS.
(a) Subject to Sections 9.01, 9.02 and 11.05 hereof,
proof of the execution of any instruments by a Noteholder or the
agent or proxy for such Noteholder shall be sufficient if made in
accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee. The ownership of Notes shall be
proved by the register for the Notes maintained by the Trustee.
(b) The record of any Noteholders' meeting shall be
proven in the manner provided in Section 11.06 hereof.
Section 10.03 PERSONS DEEMED ABSOLUTE OWNERS. Subject to
Sections 2.04(f) and 10.01 hereof, the Company, the Trustee, any
paying agent and any Authenticating Agent shall deem the person
in whose name any Note shall be registered upon the register for
the Notes to be, and shall treat such person as, the absolute
owner of such Note (whether or not such Note shall be overdue)
for the purpose of receiving payment of or on account of the
principal and premium, if any, and interest on such Note, and for
all other purposes; and neither the Company nor the Trustee nor
any paying agent nor any Authenticating Agent shall be affected
by any notice to the contrary. All such payments shall be valid
and effectual to satisfy and discharge the liability upon any
such Note to the extent of the sum or sums so paid.
Section 10.04 COMPANY-OWNED NOTES DISREGARDED. In
determining whether the Holders of the requisite aggregate
principal amount of outstanding Notes of any series have
concurred in any direction, consent or waiver under this
Indenture, Notes that are owned by the
40
Company or any other obligor on the Notes or by any person
directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company or any other
obligor on the Notes shall be disregarded and deemed not to be
outstanding for the purpose of any such determination; provided
that, for the purposes of determining whether the Trustee shall
be protected in relying on any such direction, consent or
waiver, only Notes which a Responsible Officer of the Trustee
actually knows are so owned shall be so disregarded. Notes so
owned which have been pledged in good faith to third parties
may be regarded as outstanding for the purposes of this
Section 10.04 if the pledgee shall establish the pledgee's
right to take action with respect to such Notes and that
the pledgee is not a person directly or indirectly controlling
or controlled by or under direct or indirect common control
with the Company or any such other obligor. In the case of
a dispute as to such right, the Trustee may rely upon an
Opinion of Counsel and an Officers' Certificate to establish
the foregoing.
Section 10.05 REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND.
Except as may be otherwise required in the case of a Global Note
by the applicable rules and regulations of the Depositary, at any
time prior to the taking of any action by the Holders of the
percentage in aggregate principal amount of the Notes of any
series specified in this Indenture in connection with such
action, any Holder of a Note, which has been included in the
Notes the Holders of which have consented to such action may, by
filing written notice with the Trustee at the corporate trust
office of the Trustee and upon proof of ownership as provided in
Section 10.02(a) hereof, revoke such action so far as it concerns
such Note. Except as aforesaid, any such action taken by the
Holder of any Note shall be conclusive and binding upon such
Holder and upon all future Holders and owners of such Note and of
any Notes issued in exchange, substitution or upon registration
of transfer therefor, irrespective of whether or not any notation
thereof is made upon such Note or such other Notes.
Section 10.06 RECORD DATE FOR NOTEHOLDER ACTS. If the
Company shall solicit from the Noteholders any request, demand,
authorization, direction, notice, consent, waiver or other act,
the Company may, at its option, by Board Resolution, fix in
advance a record date for the determination of Noteholders
entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other act, but the Company shall have
no obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent,
waiver or other act may be given before or after the record date,
but only the Noteholders of record at the close of business on
the record date shall be deemed to be Noteholders for the purpose
of determining whether Holders of the requisite aggregate
principal amount of outstanding Notes have authorized or agreed
or consented to such request, demand, authorization, direction,
notice, consent, waiver or other act, and for that purpose the
outstanding Notes shall be computed as of the record date;
provided that no such request, demand, authorization, direction,
notice, consent, waiver or other act by the Noteholders on the
record date shall be deemed effective unless it shall become
effective pursuant to this Indenture not later than six months
after the record date. Any such record date shall be at least 30
days prior to the date of the solicitation to the Noteholders by
the Company.
ARTICLE XI
NOTEHOLDERS' MEETING
Section 11.01 PURPOSES OF MEETINGS. A meeting of Noteholders
may be called at any time and from time to time pursuant to this
Article XI for any of the following purposes:
41
(a) to give any notice to the Company or to the Trustee, or
to give any directions to the Trustee, or to consent to the
waiving of any Event of Default hereunder and its
consequences, or to take any other action authorized to be
taken by Noteholders pursuant to Article XIII;
(b) to remove the Trustee pursuant to Article IX;
(c) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to Section 13.02
hereof; or
(d) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal
amount of the Notes of any series, as the case may be, under
any other provision of this Indenture or under applicable
law.
Section 11.02 CALL OF MEETINGS BY TRUSTEE. The Trustee may
at any time call a meeting of Holders of Notes to take any action
specified in Section 11.01 hereof, to be held at such time and at
such place as the Trustee shall determine. Notice of every such
meeting of Noteholders, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken
at such meeting, shall be given to Holders of the Notes that may
be affected by the action proposed to be taken at such meeting in
the manner provided in Section 15.10 hereof. Such notice shall be
given not less than 20 nor more than 90 days prior to the date
fixed for such meeting.
Section 11.03 CALL OF MEETINGS BY COMPANY OR NOTEHOLDERS. If
at any time the Company, pursuant to a Board Resolution, or the
Holders of at least 10% in aggregate principal amount of the
Notes of all series then outstanding, considered as one class,
shall have requested the Trustee to call a meeting of
Noteholders, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the
Trustee shall not have mailed the notice of such meeting within
20 days after receipt of such request, then the Company or such
Noteholders may determine the time and the place for such meeting
and may call such meeting to take any action authorized in
Section 11.01 hereof, by giving notice thereof as provided in
Section 11.02 hereof.
Section 11.04 QUALIFICATIONS FOR VOTING. To be entitled to
vote at any meetings of Noteholders a Person shall (a) be a
Holder of one or more Notes affected by the action proposed to be
taken or (b) be a Person appointed by an instrument in writing as
proxy by a Holder of one or more such Notes. The only Persons who
shall be entitled to be present or to speak at any meeting of
Noteholders shall be the Persons entitled to vote at such meeting
and their counsel and any representatives (including employees)
of the Trustee and its counsel and any representatives (including
employees) of the Company and its counsel.
Section 11.05 REGULATIONS.
(a) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it
may deem advisable for any meeting of Noteholders in regard to
proof of the holding of Notes and of the appointment of proxies,
and in regard to the appointment and duties of inspectors of
votes, the submission and examination of proxies, certificates
andother evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall think fit.
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(b) The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting
shall have been called by the Company or by the Noteholders as
provided in Section 11.03 hereof, in which case the Company or
Noteholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman
and a permanent secretary of the meeting shall be elected by the
Holders of a majority in aggregate principal amount of the Notes
present in person or by proxy at the meeting.
(c) Subject to Section 10.04 hereof, at any meeting
each Noteholder or proxy shall be entitled to one vote for each
$1,000 principal amount of Notes held or represented by such
Noteholder; provided that no vote shall be cast or counted at any
meeting in respect of any Note determined to be not outstanding.
The chairman of the meeting shall have no right to vote other
than by virtue of Notes held by such chairman or instruments in
writing as aforesaid duly designating such chairman as the person
to vote on behalf of other Noteholders. At any meeting of
Noteholders duly called pursuant to Section 11.02 or 11.03
hereof, the presence of persons holding or representing Notes in
an aggregate principal amount sufficient to take action on any
business for the transaction for which such meeting was called
shall constitute a quorum. Any meeting of Noteholders duly called
pursuant to Section 11.02 or 11.03 hereof may be adjourned from
time to time by the Holders of a majority in aggregate principal
amount of the Notes present in person or by proxy at the meeting,
whether or not constituting a quorum, and the meeting may be held
as so adjourned without further notice.
Section 11.06 VOTING. The vote upon any resolution submitted
to any meeting of Noteholders shall be by written ballots on
which shall be subscribed the signatures of the Holders of Notes
or of their representatives by proxy and the principal amount of
Notes held or represented by them. The permanent chairman of the
meeting shall appoint two inspectors of votes who shall count all
votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of such meeting
of Noteholders shall be prepared by the secretary of the meeting
and there shall be attached to said record the original reports
of the inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 11.02
hereof. The record shall show the aggregate principal amount of
the Notes voting in favor of or against any resolution. The
record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the
Trustee to be preserved by the Trustee and the Trustee shall have
the ballots taken at the meeting attached to such duplicate. Any
record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 11.07 RIGHTS OF TRUSTEE OR NOTEHOLDERS NOT DELAYED.
Nothing in this Article XI shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of
Noteholders or any rights expressly or impliedly conferred
hereunder to make such call, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the
Trustee or to the Holders of Notes under any of the provisions of
this Indenture or of the Notes.
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ARTICLE XII
CONSOLIDATION, MERGER, SALE, TRANSFER OR CONVEYANCE
Section 12.01 COMPANY MAY CONSOLIDATE, ETC. ONLY ON CERTAIN
TERMS. The Company shall not consolidate with or merge into any
other corporation or sell or otherwise dispose of its properties
as or substantially as an entirety to any Person unless the
Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel each stating that such consolidation,
merger, conveyance or transfer and the supplemental indenture
referred to in clause (b) below comply with this Article XII and
that all conditions precedent herein provided for have been
complied with, and the corporation formed by such consolidation
or into which the Company is merged or the Person which receives
such properties pursuant to such sale, transfer or other
disposition (a) shall be a corporation organized and existing
under the laws of the United States of America, any state thereof
or the District of Columbia; and (b) shall expressly assume, by
an indenture supplemental hereto, executed and delivered to the
Trustee, in form reasonably satisfactory to the Trustee, the due
and punctual payment of the principal of and premium and interest
on all of the Notes and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed.
Section 12.02 SUCCESSOR CORPORATION SUBSTITUTED. Upon any
consolidation or merger, or any sale, transfer or other
disposition of the properties of the Company substantially as an
entirety in accordance with Section 12.01 hereof, the successor
corporation formed by such consolidation or into which the
Company is merged or the Person to which such sale, transfer or
other disposition is made shall succeed to, and be substituted
for and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor
corporation or Person had been named as the Company herein and
the Company shall be released from all obligations hereunder.
ARTICLE XIII
SUPPLEMENTAL INDENTURES
Section 13.01 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
NOTEHOLDERS.
(a) The Company, when authorized by Board Resolution,
and the Trustee may from time to time and at any time enter into
an indenture or indentures supplemental hereto for one or more of
the following purposes:
(1) to make such provision in regard to matters or
questions arising under this Indenture as may be
necessary or desirable, and not inconsistent with this
Indenture or prejudicial to the interests of the Holders
in any material respect, for the purpose of supplying any
omission, curing any ambiguity, or curing, correcting or
supplementing any defective or inconsistent provision;
(2) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination
shall become effective only when there is no Note
outstanding created prior to the execution of such
supplemental indenture which is entitled to the benefit
of such provision or such change or elimination is
applicable only to Notes issued after the effective date
of such change or elimination;
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(3) to establish the form of Notes of any series as
permitted by Section 2.01 hereof or to establish or
reflect any terms of any Note of any series determined
pursuant to Section 2.05 hereof;
(4) to evidence the succession of another corporation to
the Company as permitted hereunder, and the assumption by
any such successor of the covenants of the Company herein
and in the Notes;
(5) to grant to or confer upon the Trustee for the
benefit of the Holders any additional rights, remedies,
powers or authority;
(6) to permit the Trustee to comply with any
duties imposed upon it by law;
(7) to specify further the duties and responsibilities
of, and to define further the relationships among, the
Trustee, any Authenticating Agent and any paying agent,
and to evidence the succession of a successor Trustee as
permitted hereunder;
(8) to add to the covenants of the Company for the
benefit of the Holders of one or more series of Notes, to
add to the security for all of the Notes, to surrender a
right or power conferred on the Company herein or to add
any Event of Default with respect to one or more series
of Notes; and
(9) to make any other change that is not
prejudicial to the Holders.
(b) The Trustee is hereby authorized to join with the
Company in the execution of any such supplemental indenture, to
make any further appropriate agreements and stipulations which
may be therein contained and to accept the conveyance, transfer
and assignment of any property thereunder, but the Trustee shall
not be obligated to enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise.
(c) Any supplemental indenture authorized by this
Section 13.01 may be executed by the Company and the Trustee
without the consent of the Holders of any of the Notes at the
time outstanding, notwithstanding any of the provisions of
Section 13.02 hereof.
Section 13.02 SUPPLEMENTAL INDENTURES WITH CONSENT OF
NOTEHOLDERS.
(a) With the consent (evidenced as provided in Section
10.01 hereof) of the Holders of a majority in aggregate principal
amount of the Notes of all series at the time outstanding,
considered as one class, the Company, when authorized by Board
Resolution, and the Trustee may from time to time and at any time
enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture or of any
supplemental indenture or of modifying or waiving in any manner
the rights of the Noteholders; provided, however, that if there
shall be Notes of more than one series Outstanding hereunder and
if a proposed supplemental indenture shall directly affect the
rights of the Holders of Notes of one or more, but less than all,
of such series, then the consent only of the Holders of a
majority in aggregate principal amount of the Outstanding Notes
of all series so directly affected, considered as one class,
shall be required; provided further that no such supplemental
indenture shall:
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(1) change the Stated Maturity of any Note, or reduce the
rate (or change the method of calculation thereof) or
extend the time of payment of interest thereon, or reduce
the principal amount thereof or any premium thereon, or
change the coin or currency in which the principal of any
Note or any premium or interest thereon is payable, or
change the date on which any Note may be redeemed or
adversely affect the rights of the Noteholders to
institute suit for the enforcement of any payment of
principal of or any premium or interest on any Note, in
each case without the consent of the Holder of each Note
so affected; or
(2) modify this Section 13.02(a) or reduce the aforesaid
percentage of Notes, the Holders of which are required to
consent to any such supplemental indenture or to reduce
the percentage of Notes, the Holders of which are
required to waive Events of Default, in each case,
without the consent of the Holders of all of the Notes
affected thereby then outstanding.
(b) Upon the request of the Company, accompanied by a
copy of the Board Resolution authorizing the execution of any
such supplemental indenture, and upon the filing with the Trustee
of evidence of the consent of Noteholders as aforesaid, the
Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects
the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such
supplemental indenture.
(c) A supplemental indenture which changes, waives or
eliminates any covenant or other provision of this Indenture (or
any supplemental indenture) which has expressly been included
solely for the benefit of one or more series of Notes, or which
modifies the rights of the Holders of Notes of such series with
respect to such covenant or provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Notes of
any other series.
(d) It shall not be necessary for the consent of the
Holders of Notes under this Section 13.02 to approve the
particular form of any proposed supplemental indenture, but it
shall be sufficient if such consent shall approve the substance
thereof.
(e) Promptly after the execution by the Company and the
Trustee of any supplemental indenture pursuant to this Section
13.02, the Trustee shall give notice in the manner provided in
Section 15.10 hereof, setting forth in general terms the
substance of such supplemental indenture, to all Noteholders. Any
failure of the Trustee to give such notice or any defect therein
shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
Section 13.03 COMPLIANCE WITH TRUST INDENTURE ACT; EFFECT OF
SUPPLEMENTAL INDENTURES. Any supplemental indenture executed
pursuant to this Article XIII shall comply with the TIA. Upon the
execution of any supplemental indenture pursuant to this Article
XIII, the Indenture shall be and be deemed to be modified and
amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under
this Indenture of the Trustee, the Company and the Noteholders
shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and
all the terms and conditions of any such supplemental indenture
shall be and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.
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Section 13.04 NOTATION ON NOTES. Notes of any series
authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article XIII may bear a
notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall
so determine, new Notes of any series so modified as approved by
the Trustee and the Board of Directors with respect to any
modification of this Indenture contained in any such supplemental
indenture may be prepared and executed by the Company,
authenticated by the Trustee and delivered in exchange for the
Notes of such series then outstanding.
Section 13.05 EVIDENCE OF COMPLIANCE OF SUPPLEMENTAL
INDENTURE TO BE FURNISHED TRUSTEE. The Trustee, subject to
Sections 9.01 and 9.02 hereof, shall receive an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that
any supplemental indenture executed pursuant hereto complies with
the requirements of this Article XIII.
ARTICLE XIV
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 14.01 INDENTURE AND NOTES SOLELY CORPORATE
OBLIGATIONS. No recourse for the payment of the principal of or
any premium or interest on any Note, or for any claim based
thereon or otherwise in respect thereof, and no recourse under or
upon any obligation, covenant or agreement of the Company,
contained in this Indenture, or in any supplemental indenture, or
in any Note, or because of the creation of any indebtedness
represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or
future, of the Company or 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; it
being expressly understood that all such liability is hereby
expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the
issuance of the Notes.
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.01 PROVISIONS BINDING ON COMPANY'S SUCCESSORS.
All the covenants, stipulations, promises and agreements made by
the Company in this Indenture shall bind its successors and
assigns whether so expressed or not.
Section 15.02 OFFICIAL ACTS BY SUCCESSOR CORPORATION. Any
act or proceeding by any provision of this Indenture authorized
or required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with
like force and effect by the like board, committee or officer of
any corporation that shall at the time be the lawful successor of
the Company.
Section 15.03 NOTICES. Any notice or demand which by any
provision of this Indenture is required or permitted to be given
or served by the Trustee or by the Noteholders on the Company may
be given or served by being deposited postage prepaid in a post
office letter box addressed (until another address is filed by
the Company with the Trustee) at the Principal Executive Offices
of the Company, to the attention of the Secretary. Any notice,
direction,
47
request or demand by any Noteholder or the Company to
or upon the Trustee shall be deemed to have been sufficiently
given or made, for all purposes, if given or made in writing at
the Corporate Trust Office of the Trustee, Attention: Corporate
Trust Administration.
Section 15.04 GOVERNING LAW. This Indenture and each Note
shall be governed by and deemed to be a contract under, and
construed in accordance with, the laws of the State of New York,
and for all purposes shall be construed in accordance with the
laws of said State without regard to conflicts of law principles
thereof.
Section 15.05 EVIDENCE OF COMPLIANCE WITH CONDITIONS
PRECEDENT.
(a) Upon any application or demand by the Company to
the Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee an Officers' Certificate stating
that all conditions precedent, if any, provided for in this
Indenture (including any covenants compliance with which
constitutes a condition precedent) 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.
(b) Each certificate or opinion provided for in this
Indenture and delivered to the Trustee with respect to compliance
with a condition or covenant provided for in this Indenture
(other than the certificates delivered pursuant to Section 6.06
hereof) shall include (1) a statement that each Person making
such certificate or opinion has read such covenant or condition
and the definitions relating thereto; (2) a brief statement as to
the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or
opinion are based; (3) a statement that, in the opinion of each
such Person, such Person has made such examination or
investigation as is necessary to enable such Person to express an
informed opinion as to whether or not such covenant or condition
has been complied with; and (4) a statement as to whether or not,
in the opinion of each such Person, such condition or covenant
has been complied with.
(c) In any case where several matters are required to
be certified by, or covered by an opinion of, any specified
Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some
matters and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to such
matters in one or several documents.
(d) Any certificate or opinion of an officer of the
Company may be based, insofar as it relates to legal matters,
upon a certificate or opinion of, or representations by, counsel,
unless such officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations
with respect to the matters upon which such certificate or
opinion is based are erroneous. Any such certificate or opinion
of counsel delivered under the Indenture may be based, insofar as
it relates to factual matters, upon a certificate or opinion of,
or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters
is in the possession of the Company, unless such person knows, or
in the exercise of reasonable care should know, that the
certificate or opinion of representations with respect to such
matters are erroneous. Any opinion of counsel delivered hereunder
may contain standard exceptions and qualifications reasonably
satisfactory to the Trustee.
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(e) Any certificate, statement or opinion of any
officer of the Company, or of counsel, may be based, insofar as
it relates to accounting matters, upon a certificate or opinion
of or representations by an independent public accountant or firm
of accountants, unless such officer or counsel, as the case may
be, knows that the certificate or opinions or representations
with respect to the accounting matters upon which the
certificate, statement or opinion of such officer or counsel may
be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous. Any
certificate or opinion of any firm of independent public
accountants filed with the Trustee shall contain a statement that
such firm is independent.
(f) Where any Person is required to make, give or
execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments under
this Indenture, they may, but need not, be consolidated and form
one instrument.
Section 15.06 BUSINESS DAYS. Unless otherwise provided
pursuant to Section 2.05(c) hereof, in any case where the date of
Maturity of the principal of or any premium or interest on any
Note or the date fixed for redemption of any Note is not a
Business Day, then payment of such principal or any premium or
interest need not be made on such date but may be made on the
next succeeding Business Day with the same force and effect as if
made on the date of Maturity or the date fixed for redemption,
and, in the case of timely payment thereof, no interest shall
accrue for the period from and after such Interest Payment Date
or the date on which the principal or premium of the Note is
required to be paid.
Section 15.07 TRUST INDENTURE ACT TO CONTROL. If and to the
extent that any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by the TIA, such required
provision of the TIA shall govern.
Section 15.08 TABLE OF CONTENTS, HEADINGS, ETC. The table of
contents and the titles and headings of the articles and sections
of this Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
Section 15.09 EXECUTION IN COUNTERPARTS. This Indenture may
be executed in any number of counterparts, each of which shall be
an original, but such counterparts shall together constitute but
one and the same instrument.
Section 15.10 MANNER OF MAILING NOTICE TO NOTEHOLDERS.
(a) Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the
Trustee or the Company to or on the Holders of Notes, as the case
may be, shall be given or served by first-class mail, postage
prepaid, addressed to the Holders of such Notes at their last
addresses as the same appear on the register for the Notes
referred to in Section 2.06, and any such notice shall be deemed
to be given or served by being deposited in a post office letter
box in the form and manner provided in this Section 15.10. In
case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give
notice to any Holder by mail, then such notification to such
Holder as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
(b) The Company shall also provide any notices required
under this Indenture by publication, but only to the extent that
such publication is required by the TIA, the rules and
49
regulations of the Commission or any securities exchange upon
which any series of Notes is listed.
Section 15.11 APPROVAL BY TRUSTEE OF COUNSEL. Wherever the
Trustee is required to approve counsel who is to furnish evidence
of compliance with conditions precedent in this Indenture, such
approval by the Trustee shall be deemed to have been given upon
the taking of any action by the Trustee pursuant to and in
accordance with the certificate or opinion so furnished by such
counsel.
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IN WITNESS WHEREOF, GREAT PLAINS ENERGY INCORPORATED has
caused this Indenture to be signed and acknowledged by its Vice
President of Finance, Chief Financial Officer, and Treasurer, and
attested by its Senior Vice President - Corporate Services and
Secretary, and THE BANK OF NEW YORK has caused this Indenture to
be signed and acknowledged by its Vice President, as of the day
and year first written above.
GREAT PLAINS ENERGY INCORPORATED
By _______________________________
Vice President - Finance, Chief
Financial Officer and Treasurer
ATTEST:
--------------------------------
Senior Vice President - Corporate
Services and Secretary
THE BANK OF NEW YORK,
AS TRUSTEE
By
______________________________
Vice President
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