INDENTURE FOR SUBORDINATED DEBT SECURITIES
EXHIBIT 4.e.
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GREAT PLAINS ENERGY INCORPORATED
AND
_________________________,
TRUSTEE
-----------------
FORM OF INDENTURE
(FOR SUBORDINATED DEBT SECURITIES)
DATED AS OF _______, 200_
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i
CROSS REFERENCE SHEET SHOWING THE LOCATION IN THEINDENTURE 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 16.05
(c)(2).................................... 1.03 and 16.05
(c)(3).................................... Not Applicable
(d) ...................................... 1.03 and 4.06
(e) ...................................... 16.05(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) ...................................... 16.07
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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*
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 6
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 11
SECTION 2.08 Temporary Notes 11
SECTION 2.09 Cancellation of Notes Paid, Etc. 12
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 18
Notes
SECTION 4.03. Redemption of Notes for Sinking Funds 18
* The Table of Contents is not part of the Indenture.
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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 20
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 32
SECTION 8.06 Powers and Remedies Cumulative; Delay or 32
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 33
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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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 41
Bound
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 43
Delayed
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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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 46
of Supplemental Indentures
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
SUBORDINATION OF NOTES
SECTION 15.01 Notes Subordinate to Senior Indebtedness 47
SECTION 15.02 Payment Over of Proceeds of Notes 47
SECTION 15.03 Disputes with Holders of Certain Senior 49
Indebtedness
SECTION 15.04 Subrogation 49
SECTION 15.05 Obligation of Company Unconditional 49
SECTION 15.06 Priority of Senior Indebtedness Upon 50
Maturity
SECTION 15.07 Trustee as a Holder of Senior Indebtedness 50
SECTION 15.08 Notice to Trustee to Effect Subordination 50
SECTION 15.09 Modification, Extension, Etc. of Senior 50
Indebtedness
SECTION 15.10 Trustee Has No Fiduciary Duty to Holders of 51
Senior Indebtedness
SECTION 15.11 Paying Agents Other Than Trustee 51
SECTION 15.12 Rights of Holders of Senior Indebtedness 51
Not Impaired
SECTION 15.13 Effect of Subordination Provisions; 51
Termination
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ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS
SECTION 16.01 Provisions Binding on Company's Successors 51
SECTION 16.02 Official Acts by Successor Corporation 52
SECTION 16.03 Notices 52
SECTION 16.04 Governing Law 52
SECTION 16.05 Evidence of Compliance with Conditions 52
Precedent
SECTION 16.06 Business Days 53
SECTION 16.07 Trust Indenture Act to Control 53
SECTION 16.08 Table of Contents, Headings, Etc. 53
SECTION 16.09 Execution in Counterparts 53
SECTION 16.10 Manner of Mailing Notice to Noteholders 53
SECTION 16.11 Approval by Trustee of Counsel 54
TESTIMONIUM 55
SIGNATURES AND SEALS 55
ACKNOWLEDGMENTS 55
vii
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 ______________________, 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
subordinated 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 ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"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 16.05 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 ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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
4
day 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.
"SENIOR INDEBTEDNESS" shall mean all obligations
(other than non-recourse obligations, the
indebtedness issued under this Indenture and other
indebtedness which is either effectively by its terms
of expressly made subordinate to or pari passu with
the indebtedness issued under this Indenture) of, or
guaranteed (except to the extent the Company's
payment obligations under any such guarantee are
subordinate to or pari passu with the indebtedness
issued under this Indenture) or assumed by, the
Company for borrowed money, including both senior and
subordinated indebtedness for borrowed money (other
than indebtedness issued under this Indenture and
other indebtedness which is expressly made
subordinate to or pari passu with the indebtedness
issued under this indenture), or for the payment of
money related to any lease which is capitalized on
the balance sheet of the Company in accordance with
generally accepted accounting principles as in effect
from time to time, or evidenced by bonds, debentures,
notes, or other similar instruments, and in each
case, amendments, renewals, extensions,
modifications, and refundings of any such
indebtedness or obligations with Senior Indebtedness,
whether existing as of the
date of this Indenture or subsequently incurred by
the Company.
"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 ______________ and, subject to
Article IX, shall also include any successor Trustee.
"U.S. GOVERNMENT OBLIGATIONS" shall mean (i) direct
noncallable 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.
5
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.
(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.
_________________, 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.
6
(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
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
7
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 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:
8
(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;
(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
9
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.
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
10
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 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
11
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.
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
12
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 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 (▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇), 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
13
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 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
14
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
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 ▇▇▇▇▇ 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
15
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 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
16
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 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.
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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.
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:
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(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;
(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
19
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;
(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
20
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
(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;
21
(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 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
22
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.
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
23
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.
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
24
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 proof (in the discretion of the Trustee)
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
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:
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(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
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 (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇).
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.
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(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;
(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
27
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;
(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
28
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 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:
29
(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 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
30
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, 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.
31
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.
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 ▇▇▇▇▇▇ 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
32
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 series, in the manner
provided in Section 16.10, 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,
33
but will suffer and permit the execution of every such power
as though no such law had been enacted.
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.
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(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, 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
35
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 eachagent, custodian and
other Person employed to act hereunder.
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
36
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.
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 16.10, 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
37
concurrent instruments in writing filed with the
Trustee and either:
(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.
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(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.
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
39
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 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
40
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 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 ArticleIX;
(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.
42
(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.
43
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;
44
(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
▇▇▇▇▇▇▇▇▇, 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
▇▇▇▇▇▇▇ 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:
45
(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 16.10
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.
46
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 shallmay 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
SUBORDINATION OF NOTES
Section 15.01 NOTES SUBORDINATE TO SENIOR
INDEBTEDNESS. The Company, for itself, its successors
and assigns, covenants and agrees, and each Holder of
the Notes of each series, by its acceptance thereof,
likewise covenants and agrees, that the payment of
the principal of and premium, if any, and interest,
if any, on each and all of the Notes is hereby
expressly subordinated, to the extent and in the
manner set forth in this Article, in right of payment
to the prior payment in full of all Senior
Indebtedness.
Each Holder of the Notes of each series, by its
acceptance thereof, authorizes and directs the
Trustee on its behalf to take such action as may be
necessary or appropriate to effectuate the
subordination as provided in this Article, and
appoints the Trustee its attorney-in-fact for any and
all such purposes.
Section 15.02 PAYMENT OVER OF PROCEEDS OF NOTES. In
the event (a) of any insolvency or bankruptcy proceedings or
any receivership, liquidation, reorganization or other
47
similar proceedings in respect of the Company
or a substantial part of its property, or of any
proceedings for liquidation, dissolution or other
winding up of the Company, whether or not involving
insolvency or bankruptcy, or (b) subject to the
provisions of Section 15.03, that a default shall
have occurred with respect to the payment of
principal of or interest on or other monetary amounts
due and payable on any Senior Indebtedness, and such
default shall have continued beyond the period of
grace, if any, in respect thereof and shall not have
been cured or waived or shall not have ceased to
exist, or (c) that the principal of and accrued
interest on the Notes of any series shall have been
declared due and payable pursuant to Section 8.01 and
such declaration shall not have been rescinded and
annulled as provided in Section 8.01, then:
(1) the holders of all Senior Indebtedness shall
first be entitled to receive payment of the full
amount due thereon, or provision shall be made
for such payment in money or money's worth,
before the Holders of any of the Notes are
entitled to receive a payment on account of the
principal of or interest on the indebtedness
evidenced by the Notes, including, without
limitation, any payments made pursuant to
Articles III and IV;
(2) any payment by, or distribution of assets
of, the Company of any kind or character,
whether in cash, property or securities, to
which any Holder or the Trustee would be
entitled except for the provisions of this
Article, shall be paid or delivered by the
Person making such payment or distribution,
whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to
the holders of such Senior Indebtedness or their
representative or representatives or to the
trustee or trustees under any indenture under
which any instruments evidencing any of such
Senior Indebtedness may have been issued,
ratably according to the aggregate amounts
remaining unpaid on account of such Senior
Indebtedness held or represented by each, to the
extent necessary to make payment in full of all
Senior Indebtedness remaining unpaid after
giving effect to any concurrent payment or
distribution (or provision therefor) to the
holders of such Senior Indebtedness, before any
payment or distribution is made to the Holders
of the indebtedness evidenced by the Notes or to
the Trustee under this Indenture; and
(3) in the event that, notwithstanding the
foregoing, any payment by, or distribution of
assets of, the Company of any kind or character,
whether in cash, property or securities, in
respect of principal of or interest on the Notes
or in connection with any repurchase by the
Company of the Notes, shall be received by the
Trustee or any Holder before all Senior
Indebtedness is paid in full, or provision is
made for such payment in money or money's worth,
such payment or distribution in respect of
principal of or interest on the Notes or in
connection with any repurchase by the Company of
the Notes shall be paid over to the holders of
such Senior Indebtedness or their representative
or representatives or to the trustee or trustees
under any indenture under which any instruments
evidencing any such Senior Indebtedness may have
been issued, ratably as aforesaid, for
application to the payment of all Senior
Indebtedness remaining unpaid until all such
Senior Indebtedness shall have been paid in
full, after giving effect to any concurrent
payment or distribution (or provision therefor)
to the holders of such Senior Indebtedness.
Notwithstanding the foregoing, at any time after
the 123rd day following the date of deposit of cash
or U.S. Government Obligations pursuant to Section
5.01 (provided all conditions set out in such Section
shall have been satisfied), the funds so deposited
and any interest thereon will not be subject to any
rights of holders of Senior Indebtedness including,
without limitation, those arising under this Article
XV; provided that no event described in clauses (5)
and (6) of Section 8.01 with respect to the Company
has occurred during such 123-day period.
48
For purposes of this Article only, the words "cash,
property or securities" shall not be deemed to
include shares of stock of the Company as reorganized
or readjusted, or securities of the Company or any
other corporation provided for by a plan or
reorganization or readjustment which are subordinate
in right of payment to all Senior Indebtedness which
may at the time be outstanding to the same extent as,
or to a greater extent than, the Notes are so
subordinated as provided in this Article. The
consolidation of the Company with, or the merger of
the Company into, another corporation or the
liquidation or dissolution of the Company following
the conveyance or transfer of its property as an
entirety, or substantially as an entirety, to another
corporation upon the terms and conditions provided
for in Article XII hereof shall not be deemed a
dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 15.02
if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply
with the conditions stated in Article XII hereof.
Nothing in Section 15.01 or in this Section 15.02
shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 9.06.
Section 15.03 DISPUTES WITH HOLDERS OF CERTAIN
SENIOR INDEBTEDNESS. Any failure by the Company to
make any payment on or perform any other obligation
in respect of Senior Indebtedness, other than any
indebtedness incurred by the Company or assumed or
guaranteed, directly or indirectly, by the Company
for money borrowed (or any deferral, renewal,
extension or refunding thereof) or any other
obligation as to which the provisions of this Section
shall have been waived by the Company in the
instrument or instruments by which the Company
incurred, assumed, guaranteed or otherwise created
such indebtedness or obligation, shall not be deemed
a default under clause (b) of Section 15.02 if (i)
the Company shall be disputing its obligation to make
such payment or perform such obligation and (ii)
either (A) no final judgment relating to such dispute
shall have been issued against the Company which is
in full force and effect and is not subject to
further review, including a judgment that has become
final by reason of the expiration of the time within
which a party may seek further appeal or review, or
(B) in the event that a judgment that is subject to
further review or appeal has been issued, the Company
shall in good faith be prosecuting an appeal or other
proceeding for review and a stay or execution shall
have been obtained pending such appeal or review.
Section 15.04 SUBROGATION. Senior Indebtedness
shall not be deemed to have been paid in full unless
the holders thereof shall have received cash (or
securities or other property satisfactory to such
holders) in full payment of such Senior Indebtedness
then outstanding. Upon the payment in full of all
Senior Indebtedness, the Holders of the Notes shall
be subrogated to the rights of the holders of Senior
Indebtedness to receive any further payments or
distributions of cash, property or securities of the
Company applicable to the holders of the Senior
Indebtedness until all amounts owing on the Notes
shall be paid in full; and such payments or
distributions of cash, property or securities
received by the Holders of the Notes, by reason of
such subrogation, which otherwise would be paid or
distributed to the holders of such Senior
Indebtedness shall, as between the Company, its
creditors other than the holders of Senior
Indebtedness, and the Holders, be deemed to be a
payment by the Company to or on account of Senior
Indebtedness, it being understood that the provisions
of this Article are and are intended solely for the
purpose of defining the relative rights of the
Holders, on the one hand, and the holders of the
Senior Indebtedness, on the other hand.
Section 15.05 OBLIGATION OF COMPANY UNCONDITIONAL.
Nothing contained in this Article or elsewhere in
this Indenture or in the Notes is intended to or
shall impair, as among the Company, its creditors
other than the holders of Senior Indebtedness and the
Holders, the obligation of the Company, which is
absolute and unconditional, to pay to the Holders the
49
principal of and interest on the Notes as and when
the same shall become due and payable in accordance
with their terms, or is intended to or shall affect
the relative rights of the Holders and creditors of
the Company other than the holders of Senior
Indebtedness, nor shall anything herein or therein
prevent the Trustee or any Holder from exercising all
remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights,
if any, under this Article of the holders of Senior
Indebtedness in respect of cash, property or
securities of the Company received upon the exercise
of any such remedy.
Upon any payment or distribution of assets or
securities of the Company referred to in this
Article, the Trustee and the Holders
shall be entitled to rely upon any order or decree of
a court of competent jurisdiction in which such
dissolution, winding up, liquidation or
reorganization proceedings are pending for the
purpose of ascertaining the persons entitled to
participate in such distribution, the holders of the
Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon, and
all other facts pertinent thereto or to this Article.
Section 15.06 PRIORITY OF SENIOR INDEBTEDNESS UPON
MATURITY. Upon the maturity of the principal of any
Senior Indebtedness by lapse of time, acceleration or
otherwise, all matured principal of Senior
Indebtedness and interest and premium, if any,
thereon shall first be paid in full before any
payment of principal or premium or interest, if any,
is made upon the Notes or before any Notes can be
acquired by the Company or any sinking fund payment
is made with respect to the Notes (except that
required sinking fund payments may be reduced by
Notes acquired before such maturity of such Senior
Indebtedness).
Section 15.07 TRUSTEE AS HOLDER OF SENIOR
INDEBTEDNESS. The Trustee shall be entitled to all
rights set forth in this Article with respect to any
Senior Indebtedness at any time held by it, to the
same extent as any other holder of Senior
Indebtedness. Nothing in this Article shall deprive
the Trustee of any of its rights as such holder.
Section 15.08 NOTICE TO TRUSTEE TO EFFECTUATE
SUBORDINATION. Notwithstanding the provisions of this
Article or any other provision of the Indenture, the
Trustee shall not be charged with knowledge of the
existence of any facts which would prohibit the
making of any payment of moneys to or by the Trustee
unless and until the Trustee shall have received
written notice thereof from the Company, from a
Holder or from a holder of any Senior Indebtedness or
from any representative or representatives of such
holder and, prior to the receipt of any such written
notice, the Trustee shall be entitled, subject to
Section 9.01, in all respects to assume that no such
facts exist; provided, however, that, if prior to the
fifth Business Day preceding the date upon which by
the terms hereof any such moneys may become payable
for any purpose, or in the event of the execution of
an instrument pursuant to Sections 5.03 and 5.04
acknowledging satisfaction and discharge of this
Indenture, then if prior to the second Business Day
preceding the date of such execution, the Trustee
shall not have received with respect to such moneys
the notice provided for in this Section, then,
anything herein contained to the contrary
notwithstanding, the Trustee may, in its discretion,
receive such moneys and/or apply the same to the
purpose for which they were received, and shall not
be affected by any notice to the contrary, which may
be received by it on or after such date; provided,
however, that no such application shall affect the
obligations under this Article of the persons
receiving such moneys from the Trustee.
Section 15.09 MODIFICATION, EXTENSION, ETC., OF
SENIOR INDEBTEDNESS. The holders of Senior
Indebtedness may, without affecting in any manner the
subordination of the payment of the principal of and
premium, if any, and interest, if any, on the Notes,
at any time or
50
from time to time and in their absolute discretion, agree
with the Company to change the manner, place or terms of
payment, change or extend the time of payment of, or
renew or alter, any Senior Indebtedness, or amend or
supplement any instrument pursuant to which any Senior
Indebtedness is issued, or exercise or refrain from
exercising any other of their rights under the Senior
Indebtedness including, without limitation, the waiver
of default thereunder, all without notice to or assent
from the Holders or the Trustee.
Section 15.10 TRUSTEE HAS NO FIDUCIARY DUTY TO
HOLDERS OF SENIOR INDEBTEDNESS. With respect to the
holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its
covenants and objectives as are specifically set
forth in this Indenture, and no implied covenants or
obligations with respect to the holders of Senior
Indebtedness shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed
to owe any fiduciary duty to the holders of Senior
Indebtedness, and shall not be liable to any such
holders if it shall mistakenly pay over or deliver to
the Holders or the Company or any other Person, money
or assets to which any holders of Senior Indebtedness
shall be entitled by virtue of this Article or
otherwise.
Section 15.11 PAYING AGENTS OTHER THAN TRUSTEE. In
case at any time any Paying Agent other than the
Trustee shall have been appointed by the Company and
be then acting hereunder, the term "Trustee" as used
in this Article shall in such case (unless the
context shall otherwise require) be construed as
extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as
if such Paying Agent were named in this Article in
addition to or in place of the Trustee; provided,
however, that Sections 15.07, 15.08 and 15.10 shall
not apply to the Company if it acts as Paying Agent.
Section 15.12 RIGHTS OF HOLDERS OF SENIOR
INDEBTEDNESS NOT IMPAIRED. No right of any present or
future holder of Senior Indebtedness to enforce the
subordination herein shall at any time or in any way
be prejudiced or impaired by any act or failure to
act on the part of the Company or by any
noncompliance by the Company with the terms,
provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder
may have or be otherwise charged with.
Section 15.13 EFFECT OF SUBORDINATION PROVISIONS;
TERMINATION. Notwithstanding anything contained
herein to the contrary, other than as provided in the
immediately succeeding sentence, all the provisions
of this Indenture shall be subject to the provisions
of this Article, so far as the same may be applicable
thereto.
Notwithstanding anything contained herein to the
contrary, the provisions of this Article XV shall be
of no further effect, and the Notes shall no longer
be subordinated in right of payment to the prior
payment of Senior Indebtedness, if the Company shall
have delivered to the Trustee a notice to such
effect. Any such notice delivered by the Company
shall not be deemed to be a supplemental indenture
for purposes of Article XIII hereof.
ARTICLE XVI
MISCELLANEOUS PROVISIONS
Section 16.01 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.
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Section 16.02 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 16.03 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, 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 16.04 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 16.05 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
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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.
(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 16.06 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 16.07 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 16.08 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 16.09 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 16.10 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
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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 16.10. 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 regulations of the
Commission or any securities exchange upon which any
series of Notes is listed.
Section 16.11 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 ________________ has caused this Indenture to be
signed and acknowledged by its ________________, 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
___________________,
AS TRUSTEE
By
___________________
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