Exhibit 4-c
KANSAS CITY POWER & LIGHT COMPANY
Issuer
AND
THE FIRST NATIONAL BANK OF CHICAGO
Trustee
INDENTURE
Dated as of __________, 199_
Subordinated Debt Securities
ARTICLE I
DEFINITIONS 1
SECTION 1.01. Definitions of Terms 1
SECTION 1.02. Interpretation 9
ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND
EXCHANGE OF DEBT SECURITIES 9
SECTION 2.01. Designation and Terms of Debt Securities 9
SECTION 2.02. Form of Debt Securities and Trustee's
Certificate 11
SECTION 2.03. Denominations; Provisions for Payment 12
SECTION 2.04. Execution and Authentication 14
SECTION 2.05. Registration of Transfer and Exchange 15
SECTION 2.06. Temporary Securities 16
SECTION 2.07. Mutilated, Destroyed, Lost or Stolen
Debt Securities 17
SECTION 2.08. Cancellation 18
SECTION 2.09. Benefits of Indenture 18
SECTION 2.10. Authenticating Agent 18
SECTION 2.11. Global Securities 19
ARTICLE III
REDEMPTION OF DEBT SECURITIES AND SINKING FUND PROVISIONS 21
SECTION 3.01. Redemption 21
SECTION 3.02. Notice of Redemption 21
SECTION 3.03. Payment Upon Redemption 22
SECTION 3.04. Sinking Fund 23
SECTION 3.05. Satisfaction of Sinking Fund Payments
with Debt Securities 23
SECTION 3.06. Redemption of Debt Securities for
Sinking Fund 24
ARTICLE IV
COVENANTS OF THE COMPANY 24
SECTION 4.01. Payment of Principal, Premium and Interest 24
SECTION 4.02. Maintenance of Office or Agency 24
SECTION 4.03. Paying Agents 25
SECTION 4.04. Appointment to Fill Vacancy in Office of
Trustee 26
SECTION 4.05. Compliance with Consolidation Provisions 26
SECTION 4.06. Limitation on Dividends; Transactions
with Affiliates 26
SECTION 4.07. Covenants as to Trust 28
SECTION 4.08. Corporate Existence 28
ARTICLE V
SECURITYHOLDERS, LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE 28
SECTION 5.01. Company to Furnish Trustee Names and
Addresses of Securityholders 28
SECTION 5.02. Preservation Of Information;
Communications With Securityholders 29
SECTION 5.03. Reports By the Company 29
SECTION 5.04. Reports by the Trustee 30
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF
DEFAULT 30
SECTION 6.01. Events of Default 30
SECTION 6.02. Collection of Indebtedness and Suits for
Enforcement by Trustee 33
SECTION 6.03. Application of Moneys Collected 35
SECTION 6.04. Limitation on Suits 35
SECTION 6.05. Rights and Remedies Cumulative; Delay or
Omission Not Waiver 36
SECTION 6.06. Control by Securityholders 37
SECTION 6.07. Undertaking to Pay Costs 37
SECTION 6.08. Acknowledgement Regarding Preferred
Securities Holders 38
ARTICLE VII
CONCERNING THE TRUSTEE 38
SECTION 7.01. Certain Duties and Responsibilities of
Trustee 38
SECTION 7.02. Certain Rights of Trustee 40
SECTION 7.03. Trustee Not Responsible for Recitals or
Issuance of Debt Securities 41
SECTION 7.04. May Hold Debt Securities 42
SECTION 7.05. Moneys Held in Trust 42
SECTION 7.06. Compensation and Reimbursement 42
SECTION 7.07. Reliance on Officers' Certificate 43
SECTION 7.08. Qualification; Conflicting Interests 43
SECTION 7.09. Corporate Trustee Required; Eligibility 43
SECTION 7.10. Resignation and Removal; Appointment of
Successor 44
SECTION 7.11. Acceptance of Appointment By Successor 45
SECTION 7.12. Merger, Conversion, Consolidation or
Succession to Business 47
SECTION 7.13. Preferential Collection of Claims Against
the Company 47
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS 48
SECTION 8.01. Evidence of Action by Securityholders 48
SECTION 8.02. Proof of Execution by Securityholders 48
SECTION 8.03. Who May be Deemed Owners 49
SECTION 8.04. Certain Debt Securities Owned by Company
Disregarded 49
SECTION 8.05. Actions Binding on Future Securityholders 50
ARTICLE IX
SUPPLEMENTAL INDENTURES 50
SECTION 9.01. Supplemental Indentures Without the
Consent of Securityholders 50
SECTION 9.02. Supplemental Indentures With Consent of
Securityholders 51
SECTION 9.03. Effect of Supplemental Indentures 52
SECTION 9.04. Debt Securities Affected by Supplemental
Indentures 52
SECTION 9.05. Execution of Supplemental Indentures 53
ARTICLE X
SUCCESSOR CORPORATION 53
SECTION 10.01. Company May Consolidate, Etc. 53
SECTION 10.02. Successor Corporation Substituted 54
SECTION 10.03. Evidence of Consolidation, Etc. to
Trustee 54
ARTICLE XI
SATISFACTION AND DISCHARGE 55
SECTION 11.01. Satisfaction and Discharge of Indenture 55
SECTION 11.02. Discharge of Obligations 56
SECTION 11.03. Deposited Moneys to be Held in Trust 56
SECTION 11.04. Payment of Moneys Held by Paying Agents 56
SECTION 11.05. Repayment to Company 57
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS 57
SECTION 12.01. No Recourse 57
ARTICLE XIII
MISCELLANEOUS PROVISIONS 58
SECTION 13.01. Effect on Successors and Assigns 58
SECTION 13.02. Actions by Successor 58
SECTION 13.03. Surrender of Company Powers 58
SECTION 13.04. Notices 58
SECTION 13.05. Governing Law 58
SECTION 13.06. Treatment of the Debt Securities as Debt 59
SECTION 13.07. Compliance Certificates and Opinions 59
SECTION 13.08. Payments on Business Days 59
SECTION 13.09. Conflict with Trust Indenture Act 60
SECTION 13.10. Counterparts 60
SECTION 13.11. Separability 60
SECTION 13.12. Assignment 60
SECTION 13.13. Acknowledgment of Rights 60
ARTICLE XIV
SUBORDINATION OF DEBT SECURITIES 60
SECTION 14.01. Subordination Terms 61
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Indenture
____________________ __________
310(a) 7.09
310(b) 7.08
7.10
310(c) Inapplicable
311(a) 7.13(a)
311(b) 7.13(b)
311(c) Inapplicable
312(a) 5.01
5.02(a)
312(b) 5.02(b)
312(c) 5.02(c)
313(a) 5.04(a)
313(b) 5.04(b)
313(c) 5.04(a)
5.04(b)
313(d) 5.04(c)
314(a) 5.03
314(b) Inapplicable
314(c) 13.06
314(d) Inapplicable
314(e) 13.06
314(f) Inapplicable
315(a) 7.01(a)
7.02
315(b) 6.07
315(c) 7.01
315(d) 7.01(b)
7.01(c)
315(e) 6.07
316(a) 6.06
8.04
316(b) 6.04
316(c) 8.01
317(a) 6.02
317(b) 4.03
318(a) 13.08
* This Cross-Reference Table does not constitute part of
the Indenture and shall not have any bearing on the
interpretation of Any of its terms or provisions.
THIS INDENTURE, dated as of __________, 199_,
between KANSAS CITY POWER & LIGHT COMPANY, a Missouri
corporation (the "Company") and THE FIRST NATIONAL BANK OF
CHICAGO, a national banking association, duly organized and
existing under the laws of the United States 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 of unsecured
subordinated debt securities (hereinafter referred to as the
"Debt Securities"), in an unlimited aggregate principal
amount to be issued from time to time in one or more series
as in this Indenture provided, as registered Debt Securities
without coupons, to be authenticated by the certificate of
the Trustee;
WHEREAS, to provide the terms and conditions upon
which the Debt Securities are to be authenticated, issued
and delivered, the Company has duly authorized the execution
of this Indenture; and
WHEREAS, all things necessary to make this
Indenture a valid agreement of the Company, in accordance
with its terms, have been done;
NOW, THEREFORE, in consideration of the premises
and the purchase of the Debt Securities by the holders
thereof, it is mutually covenanted and agreed as follows for
the equal and ratable benefit of the holders of Debt
Securities:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions of Terms. The terms
defined in this Section (except as in this Indenture
otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture and of any
indenture supplemental hereto shall have the respective
meanings specified in this Section and shall include the
plural as well as the singular. All other terms used in
this Indenture that are defined in the Trust Indenture Act
of 1939, as amended, or that are by reference in such Act
defined in the Securities Act of 1933, as amended (except as
herein otherwise expressly provided or unless the context
otherwise requires), shall have the meanings assigned to
such terms in said Trust Indenture Act and in said
Securities Act as in force at the date of the execution of
this instrument.
Affiliate:
The term "Affiliate" shall mean, with respect to a
specified Person, (a) any Person directly or indirectly
owning, controlling or holding with power to vote 10% or
more of the outstanding voting securities or other ownership
interests of the specified Person, (b) any Person 10% or
more of whose outstanding voting securities or other
ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified
Person, (c) any Person directly or indirectly controlling,
controlled by or under common control with the specified
Person, (d) a partnership in which the specified Person is a
general partner, (e) any officer or director of the
specified Person and (f) if the specified Person is an
individual, any entity of which the specified Person is an
officer, director or general partner.
Authenticating Agent:
The term "Authenticating Agent" shall mean an
authenticating agent with respect to all or any of the
series of Debt Securities appointed with respect to all of
such series of the Debt Securities by the Trustee pursuant
to Section 2.10.
Bankruptcy Law:
The term "Bankruptcy Law" shall mean Title 11,
United States Code, or any similar federal or state law for
the relief of debtors.
Board of Directors:
The term "Board of Directors" shall mean the board
of directors of the Company, or any duly authorized
committee of such board or any officer of the Company duly
authorized by the board of directors of the Company or a
duly authorized committee of that board.
Board Resolution:
The term "Board Resolution" shall mean a copy of a
resolution certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the
Board of Directors and to be in full force and effect on the
date of such certification; provided that any Board
Resolution that is adopted by an officer of the Company
shall be accompanied by a copy of a resolution of either the
board of directors of the Company or a duly authorized
committee of that board, certified as aforesaid, authorizing
such officer to take such action.
Business Day:
The term "Business Day" shall mean, with respect
to any series of Debt Securities, any day other than a day
on which federal or state banking institutions in Chicago,
Illinois or the Borough of Manhattan, The City of New York,
are authorized or obligated by law, executive order or
regulation to close.
Certificate:
The term "Certificate" shall mean a certificate
signed by the principal executive officer, the principal
financial officer, the treasurer or the principal accounting
officer of the Company. The Certificate need not comply
with the provisions of Section 13.07.
Common Securities:
The term "Common Securities" shall mean undivided
beneficial interests in the assets of a Trust which rank
pari passu with Preferred Securities issued by such Trust;
provided, however, that upon the occurrence of an Event of
Default, the rights of holders of Common Securities to
payment in respect of distributions and payments upon
liquidation, redemption and maturity are subordinated to the
rights of holders of Preferred Securities.
Company:
The term "Company" shall mean Kansas City Power &
Light Company, a corporation duly organized and existing
under the laws of the State of Missouri, and, subject to the
provisions of Article X, shall also include its successors
and assigns.
Corporate Trust Office:
The term "Corporate Trust Office" shall mean the
office of the Trustee at which, at any particular time, its
corporate trust business shall be principally administered,
which office at the date hereof is located at One First
National Plaza, Suite 0126, Chicago, Illinois 60670,
Attention: Corporate Trust Administration.
Custodian:
The term "Custodian" shall mean any receiver,
trustee, assignee, liquidator, or similar official under any
Bankruptcy Law.
Declaration:
The term "Declaration" shall mean, in respect of a
Trust, the amended and restated declaration of trust of such
Trust or any other governing instrument of such Trust.
Debt Securities:
The term "Debt Securities" shall mean the Debt
Securities authenticated and delivered under this Indenture.
Default:
The term "Default" shall mean any event, act or
condition that with notice or lapse of time, or both, would
constitute an Event of Default.
Defaulted Interest:
The term "Defaulted Interest" has the meaning
specified in Section 2.03.
Depositary:
The term "Depositary" shall mean, with respect to
Debt Securities of any series for which the Company shall
determine that such Debt Securities will be issued as a
Global Security, The Depository Trust Company, New York, New
York, another clearing agency, or any successor registered
as a clearing agency under the Exchange Act or other
applicable statute or regulation, which, in each case, shall
be designated by the Company pursuant to either Section 2.01
or 2.11.
Event of Default:
The term "Event of Default" shall mean, with
respect to Debt Securities of a particular series, any event
specified in Section 6.01, continued for the period of time,
if any, therein designated.
Exchange Act:
The term "Exchange Act" shall mean the Securities
Exchange Act of 1934.
Global Security:
The term "Global Security" shall mean, with
respect to any series of Debt Securities, a Debt Security
executed by the Company and delivered by the Trustee to the
Depositary or pursuant to the Depositary's instruction, all
in accordance with this Indenture, which shall be registered
in the name of the Depositary or its nominee.
Governmental Obligations:
The term "Governmental Obligations" shall mean
securities that are (i) direct obligations of the United
States of America for the payment of which its full faith
and credit is pledged or (ii) obligations of a Person
controlled or supervised by and acting as an agency or
instrumentality of the United States of America, the payment
of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America that, in
either case, are not callable or redeemable at the option of
the issuer thereof, and shall also include a depositary
receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with
respect to any such Governmental Obligation or a specific
payment of principal of or interest on any such Governmental
Obligation held by such custodian for the account of the
holder of such depositary receipt; provided, however, that
(except as required by law) such custodian is not authorized
to make any deduction from the amount payable to the holder
of such depositary receipt from any amount received by the
custodian in respect of the Governmental Obligation or the
specific payment of principal of or interest on the
Governmental Obligation evidenced by such depositary
receipt.
herein, hereof and hereunder:
The terms "herein", "hereof", and "hereunder" and
other words of similar import, refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
Indenture:
The term "Indenture" shall mean this instrument as
originally executed or as it may from time to time be
supplemented or amended by one or more indentures
supplemental hereto entered into in accordance with the
terms hereof.
Interest Payment Date:
The term "Interest Payment Date", when used with
respect to any installment of interest on a Debt Security of
a particular series, means the date specified in such Debt
Security or in a Board Resolution or in an indenture
supplemental hereto with respect to such series as the fixed
date on which an installment of interest with respect to
Debt Securities of that series is due and payable.
Officers' Certificate:
The term "Officers' Certificate" shall mean a
certificate signed by the President or a Vice President and
by the Treasurer or an Assistant Treasurer or the Controller
or an Assistant Controller or the Secretary or an Assistant
Secretary of the Company that is delivered to the Trustee in
accordance with the terms hereof. Each such certificate
shall include the statements provided for in Section 13.07,
if and to the extent required by the provisions thereof.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an
opinion in writing of legal counsel, who may be an employee
of or counsel for the Company, that is delivered to the
Trustee in accordance with the terms hereof. Each such
opinion shall include the statements provided for in Section
13.07, if and to the extent required by the provisions
thereof.
Outstanding:
The term "Outstanding", when used with reference
to Debt Securities of any series, means, subject to the
provisions of Section 8.04, as of any particular time, all
Debt Securities of that series theretofore authenticated and
delivered by the Trustee under this Indenture, except (a)
Debt Securities theretofore canceled by the Trustee or any
paying agent, or delivered to the Trustee or any paying
agent for cancellation or that have previously been
canceled; (b) Debt Securities or portions thereof for the
payment or redemption of which moneys or Governmental
Obligations in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent
(other than the Company) or shall have been set aside and
segregated in trust by the Company (if the Company shall act
as its own paying agent); provided, however, that if such
Debt Securities or portions of such Debt Securities are to
be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as in Article III provided,
or provision satisfactory to the Trustee shall have been
made for giving such notice, (c) Debt Securities in lieu of
or in substitution for which other Debt Securities shall
have been authenticated and delivered pursuant to the terms
of Section 2.07; and (d) Debt Securities with respect to
which the Company has effected defeasance and/or covenant
defeasance as provided in Article XI.
Person:
The term "Person" shall mean any individual,
corporation, partnership, limited liability company, joint
venture, joint-stock company, unincorporated organization or
government or any agency or political subdivision thereof,
or any other entity of whatever nature.
Predecessor Security:
The term "Predecessor Security" of any particular
Debt Security means every previous Debt Security evidencing
all or a portion of the same debt and guarantee as that
evidenced by such particular Debt Security; and, for the
purposes of this definition, any Debt Security authenticated
and delivered under Section 2.07 in lieu of a lost,
destroyed or stolen Debt Security shall be deemed to
evidence the same debt as the lost, destroyed or stolen Debt
Security.
Preferred Securities:
The term "Preferred Securities" shall mean
undivided beneficial interests in the assets of a Trust
which rank pari passu with Common Securities issued by such
trust; provided, however, that upon the occurrence of an
Event of Default, the rights of holders of Common Securities
to payment in respect of distributions and payments upon
liquidation, redemption and otherwise are subordinated to
the rights of holders of Preferred Securities.
Preferred Securities Guarantee:
The term "Preferred Securities Guarantee" shall
mean any guarantee that the Company may enter into with a
Trust or other Persons that operate directly or indirectly
for the benefit of holders of Preferred Securities of such
Trust.
Property Trustee:
The term "Property Trustee" shall mean the entity
performing the functions of the Property Trustee of a Trust
under the applicable Declaration of such Trust.
Responsible Officer:
The term "Responsible Officer," when used with
respect to the Trustee, means the Chairman of the board of
directors, the President, any Vice President, the Secretary,
the Treasurer, any trust officer, any corporate trust
officer or any other officer or assistant officer of the
Trustee customarily performing functions similar to those
performed by the persons who at the time shall be such
officers, respectively, or to whom any corporate trust
matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
Securityholder, Holder, holder of Debt Securities,
registered holder:
The terms "Securityholder", "Holder", "Holder of
Debt Securities", "registered holder", or other similar
term, means the Person or Persons in whose name or names a
particular Debt Security shall be registered on the books of
the Company kept for that purpose in accordance with the
terms of this Indenture.
Security Register and Security Registrar:
The terms "Security Register" and "Security
Registrar" have the respective meanings set forth in Section
2.05.
Subsidiary:
The term "Subsidiary" shall mean, with respect to
any Person, (i) any corporation at least a majority of whose
outstanding Voting Stock shall at the time be owned,
directly or indirectly, by such Person or by one or more of
its Subsidiaries or by such Person and one or more of its
Subsidiaries, (ii) any general partnership, joint venture or
similar entity, at least a majority of whose outstanding
partnership or similar interests shall at the time be owned
by such Person, or by one or more of its Subsidiaries, or by
such Person and one or more of its Subsidiaries and (iii)
any limited partnership of which such Person or any of its
Subsidiaries is a general partner.
Trust:
The term "Trust" shall mean any Delaware business
trust formed by the Company for the purpose of purchasing
Debt Securities of the Company.
Trustee:
The term "Trustee" shall mean The First National
Bank of Chicago, not in its individual capacity, and,
subject to the provisions of Article VII, shall also include
its successors and assigns, and, if at any time there is
more than one Person acting in such capacity hereunder,
"Trustee" shall mean each such Person. The term "Trustee,"
as used with respect to a particular series of Debt
Securities, shall mean the trustee with respect to that
series.
Trust Indenture Act:
The term "Trust Indenture Act" shall mean the
Trust Indenture Act of 1939.
Trust Securities:
The term "Trust Securities" shall mean Common
Securities and Preferred Securities.
Voting Stock:
The term "Voting Stock", as applied to stock of
any Person, means shares, interests, participations or other
equivalents in the equity interest (however designated) in
such Person having ordinary voting power for the election of
a majority of the directors (or the equivalent) of such
Person, other than shares, interests, participations or
other equivalents having such power only by reason of the
occurrence of a contingency.
SECTION 1.02. Interpretation. Each definition in
this Indenture includes the singular and the plural, and
references to the neuter gender include the masculine and
feminine where appropriate. Terms which relate to
accounting matters shall be interpreted in accordance with
generally accepted accounting principles in effect from time
to time. References to any statute mean such statute as
amended at the time and include any successor legislation.
The word "or" is not exclusive, and the words "herein,"
"hereof" and "hereunder" refer to this Indenture as a whole.
The headings to the Articles and Sections are for
convenience of reference and shall not affect the meaning or
interpretation of this Indenture. References to Articles
and Sections mean the Articles and Sections of this
Indenture.
ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF DEBT SECURITIES
SECTION 2.01. Designation and Terms of Debt
Securities. The aggregate principal amount of Debt
Securities that may be authenticated and delivered under
this Indenture is unlimited. The Debt Securities may be
issued in one or more series up to the aggregate principal
amount of Debt Securities of that series from time to time
authorized by or pursuant to a Board Resolution of the
Company or pursuant to one or more indentures supplemental
hereto. Prior to the initial issuance of Debt Securities of
any series, there shall be established in or pursuant to a
Board Resolution of the Company, and set forth in an
Officers' Certificate of the Company, or established in one
or more indentures supplemental hereto:
(1) the title of the series of Debt Security
(which shall distinguish the Debt Securities of that
series from all other series of Debt Securities);
(2) any limit upon the aggregate principal amount
of the Debt Securities of that series that may be
authenticated and delivered under this Indenture
(except for Debt Securities authenticated and delivered
upon registration of transfer of, or in exchange for,
or in lieu of, other Debt Securities of that series);
(3) the date or dates on which the principal of
the Debt Securities of that series is payable;
(4) the rate or rates at which the Debt
Securities of that series shall bear interest or the
manner of calculation of such rate or rates, if any;
(5) the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such
interest will be payable or the manner of determination
of such Interest Payment Dates and the record date for
the determination of holders to whom interest is
payable on any such Interest Payment Dates;
(6) the right, if any, to extend the interest
payment periods and the duration of such extension;
(7) the period or periods within which, the price
or prices at which, and the terms and conditions upon
which, Debt Securities of that series may be redeemed,
in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to
redeem or purchase Debt Securities of that series
pursuant to any sinking fund or analogous provisions
(including payments made in cash in anticipation of
future sinking fund obligations) or at the option of a
Holder thereof and the period or periods within which,
the price or prices at which, and the terms and
conditions upon which, Debt Securities of that series
shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(9) the subordination terms of the Debt
Securities of that series;
(10) the form of the Debt Securities of that
series, including the form of the Certificate of
Authentication for such series;
(11) if other than denominations of twenty-five
U.S. dollars ($25) or any integral multiple thereof,
the denominations in which the Debt Securities of that
series shall be issuable;
(12) whether and under what circumstances the
Company will pay additional amounts on the Debt
Securities of the series to any Holder who is not a
United States Person (including any modification to the
definition of such term) in respect of any tax,
assessment or governmental charge and, if so, whether
the Company will have the option to redeem such Debt
Securities rather than pay such additional amounts (and
the terms of any such option);
(13) any and all other terms with respect to such
series (which terms shall not be inconsistent with the
terms of this Indenture), including any terms which may
be required by or advisable under United States laws or
regulations or advisable in connection with the
marketing of Debt Securities of that series; and
(14) whether the Debt Securities are issuable as
a Global Security and, in such case, the identity of
the Depositary for such series.
All Debt Securities of any one series shall be
substantially identical except as to denomination and except
as may otherwise be provided in or pursuant to any such
Board Resolution or in any indentures supplemental hereto.
If any of the terms of a series are established by
action taken pursuant to a Board Resolution of the Company,
a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the
delivery of the Officers' Certificate of the Company setting
forth the terms of such series.
SECTION 2.02. Form of Debt Securities and
Trustee's Certificate. The Debt Securities of any series
and the Trustee's certificate of authentication to be borne
by such Debt Securities shall be substantially of the tenor
and purport as set forth in one or more indentures
supplemental hereto or as provided in a Board Resolution of
the Company and as set forth in an Officers' Certificate of
the Company, and may have such letters, numbers or other
marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as
the Company may deem appropriate and as are not inconsistent
with the provisions of this Indenture, or as may be required
to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock
exchange on which Debt Securities of that series may be
listed, or to conform to usage.
SECTION 2.03. Denominations; Provisions for
Payment. The Debt Securities shall be issuable as
registered Debt Securities and in the denominations of
twenty-five U.S. dollars ($25) or any integral multiple
thereof, subject to Section 2.01(11). The Debt Securities of
a particular series shall bear interest payable on the dates
and at the rate specified with respect to that series. The
principal of and the interest on the Debt Securities of any
series, as well as any premium thereon in case of redemption
thereof prior to maturity, shall be payable in the coin or
currency of the United States of America that at the time is
legal tender for public and private debt, at the office or
agency of the Company maintained for that purpose in the
Borough of Manhattan, the City and State of New York. Each
Debt Security shall be dated the date of its authentication.
Interest on the Debt Securities shall be computed on the
basis of a 360-day year composed of twelve 30-day months.
The interest installment on any Debt Security that
is payable, and is punctually paid or duly provided for, on
any Interest Payment Date for Debt Securities of that series
shall be paid to the Person in whose name said Debt Security
(or one or more Predecessor Debt Securities) is registered
at the close of business on the regular record date for such
interest installment. In the event that any Debt Security
of a particular series or portion thereof is called for
redemption and the redemption date is subsequent to a
regular record date with respect to any Interest Payment
Date and prior to such Interest Payment Date, interest on
such Debt Security will be paid upon presentation and
surrender of such Debt Security as provided in Section 3.03.
Any interest on any Debt Security that is payable,
but is not punctually paid or duly provided for, on any
Interest Payment Date for Debt Securities of that series
(herein called "Defaulted Interest") shall forthwith cease
to be payable to the registered holder on the relevant
regular record date by virtue of having been such holder;
and such Defaulted Interest shall be paid by the Company, at
its election, as provided in clause (1) or clause (2) below:
(1) The Company may make payment of any Defaulted
Interest on Debt Securities to the Persons in whose
names such Debt Securities (or their respective
Predecessor Debt Securities) are registered at the
close of business on a special record date for the
payment of such Defaulted Interest, which shall be
fixed in the following manner: the Company shall
notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each such
Debt Security and the date of the proposed payment, and
at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a special record date
for the payment of such Defaulted Interest which shall
not be more than 15 nor less than 10 days prior to the
date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify
the Company of such special record date and, in the
name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted
Interest and the special record date therefor to be
mailed, first class postage prepaid, to each
Securityholder at the address of such Securityholder as
it appears in the Security Register (as hereinafter
defined), not less than 10 days prior to such special
record date. Notice of the proposed payment of such
Defaulted Interest and the special record date therefor
having been mailed as aforesaid, such Defaulted
Interest shall be paid to the Persons in whose names
such Debt Securities (or their respective Predecessor
Debt Securities) are registered on such special record
date and shall be no longer payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted
Interest on any Debt Securities in any other lawful
manner not inconsistent with the requirements of any
securities exchange on which such Debt Securities may
be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to
the Trustees of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practic
able by the Trustee.
Unless otherwise set forth in a Board Resolution
of the Company or one or more indentures supplemental hereto
establishing the terms of any series of Debt Securities
pursuant to Section 2.01 hereof, the term "regular record
date" as used in this Section with respect to a series of
Debt Securities with respect to any Interest Payment Date
for such series shall mean either (a) the fifteenth day of
the month immediately preceding the month in which an
Interest Payment Date established for such series pursuant
to Section 2.01 hereof shall occur, if such Interest Payment
Date is the first day of a month, (b) the fifteenth day of
the month in which an Interest Payment Date established for
such series pursuant to Section 2.01 hereof shall occur, if
such Interest Payment Date is the last day of such month, or
(c) the last day of the month immediately preceding the
month in which an Interest Payment Date established for such
series pursuant to Section 2.01 hereof shall occur, if such
Interest Payment Date is the fifteenth day of a month,
whether or not such date is a Business Day.
Subject to the foregoing provisions of this
Section, each Debt Security of a series delivered under this
Indenture upon transfer of or in exchange for or in lieu of
any other Debt Security of such series shall carry the
rights to interest accrued and unpaid, and to accrue, that
were carried by such other Debt Security.
SECTION 2.04. Execution and Authentication. The
Debt Securities shall be signed on behalf of the Company by
its President or one of its Vice Presidents, and attested by
its Secretary or one of its Assistant Secretaries.
Signatures may be in the form of a manual or facsimile
signature. The Company may use the facsimile signature of
any Person who shall have been a President or Vice President
thereof, or of any Person who shall have been a Secretary or
Assistant Secretary thereof, notwithstanding the fact that
at the time the Debt Securities shall be authenticated and
delivered or disposed of such Person shall have ceased to be
the President or a Vice President, or the Secretary or an
Assistant Secretary, of the Company. The seal, if any, of
the Company may be in the form of a facsimile of such seal
and may be impressed, affixed, imprinted or otherwise
reproduced on the Debt Securities. The Debt Securities may
contain such notations, legends or endorsements required by
law, stock exchange rule or usage. Each Debt Security shall
be dated the date of its authentication by the Trustee.
A Debt Security shall not be valid until
authenticated manually by an authorized signatory of the
Trustee, or by an Authenticating Agent. Such signature
shall be conclusive evidence that the Debt Security so
authenticated has been duly authenticated and delivered
hereunder and that the holder is entitled to the benefits of
this Indenture.
At any time and from time to time after the
execution and delivery of this Indenture, the Company may
deliver Debt Securities of any series executed by the
Company to the Trustee for authentication, together with a
written order of the Company for the authentication and
delivery of such Debt Securities, signed by its President or
any Vice President and its Treasurer or any Assistant
Treasurer, and the Trustee in accordance with such written
order shall authenticate and deliver such Debt Securities.
In authenticating such Debt Securities and
accepting the additional responsibilities under this
Indenture in relation to such Debt Securities, the Trustee
shall be entitled to receive, and (subject to Section 7.01)
shall be fully protected in relying upon, an Opinion of
Counsel stating that the form and terms thereof have been
established in conformity with the provisions of this
Indenture.
The Trustee shall not be required to authenticate
such Debt Securities if the issue of such Debt Securities
pursuant to this Indenture will affect the Trustee's own
rights, duties or immunities under the Debt Securities and
this Indenture or otherwise in a manner that is not
reasonably acceptable to the Trustee.
SECTION 2.05. Registration of Transfer and
Exchange.
(a) Debt Securities of any series may be
exchanged upon presentation thereof at the office or agency
of the Company designated for such purpose in the Borough of
Manhattan, the City and State of New York, for other Debt
Securities of such series of authorized denominations, and
for a like aggregate principal amount, upon payment of a sum
sufficient to cover any tax or other governmental charge in
relation thereto, all as provided in this Section. In
respect of any Debt Securities so surrendered for exchange,
the Company shall execute, the Trustee shall authenticate
and such office or agency shall deliver in exchange therefor
the Debt Security or Debt Securities of the same series that
the Securityholder making the exchange shall be entitled to
receive, bearing numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept,
at its office or agency designated for such purpose in the
Borough of Manhattan, the City and State of New York, or
such other location designated by the Company a register or
registers (herein referred to as the "Security Register") in
which, subject to such reasonable regulations as it may
prescribe, the Company shall register the Debt Securities
and the transfers of Debt Securities as in this Article
provided and which at all reasonable times shall be open for
inspection by the Trustee. The registrar for the purpose of
registering Debt Securities and transfer of Debt Securities
as herein provided shall be appointed as authorized by Board
Resolution (the "Security Registrar").
Upon surrender for transfer of any Debt Security
at the office or agency of the Company designated for such
purpose in the Borough of Manhattan, the City and State of
New York, the Company shall execute, the Trustee shall
authenticate and such office or agency shall deliver in the
name of the transferee or transferees a new Debt Security or
Debt Securities of the same series and same aggregate
principal amount as the Debt Security presented for
transfer.
All Debt Securities presented or surrendered for
exchange or registration of transfer, as provided in this
Section, shall be accompanied (if so required by the Company
or the Security Registrar) by a written instrument or
instruments of transfer, in form satisfactory to the Company
or the Security Registrar, duly executed by the registered
holder or by such holder's duly authorized attorney in
writing.
(c) No service charge shall be made for any
exchange or registration of transfer of Debt Securities, or
issue of new Debt Securities in case of partial redemption
of any series, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge in
relation thereto, other than exchanges pursuant to Section
2.06, Section 3.03(b) and Section 9.04 not involving any
transfer.
(d) The Company shall not be required (i) to
issue, exchange or register the transfer of any Debt
Securities of a series during a period beginning at the
opening of business 15 days before the day of the mailing of
a notice of redemption of less than all the Outstanding Debt
Securities of the same series and ending at the close of
business on the day of such mailing, nor (ii) to register
the transfer of or exchange any Debt Securities of any
series or portions thereof called for redemption. The
provisions of this Section 2.05 are, with respect to any
Global Security, subject to Section 2.11 hereof.
SECTION 2.06. Temporary Securities. Pending the
preparation of definitive Debt Securities of any series, the
Company may execute, and the Trustee shall authenticate and
deliver, temporary Debt Securities (printed, lithographed or
typewritten) of any authorized denomination. Such temporary
Debt Securities shall be substantially in the form of the
definitive Debt Securities in lieu of which they are issued,
but with such omissions, insertions and variations as may be
appropriate for temporary Debt Securities, all as may be
determined by the Company. Every temporary Debt Security of
any series shall be executed by the Company and be
authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the
definitive Debt Securities of such series. Without
unnecessary delay the Company will execute and will furnish
definitive Debt Securities of such series and thereupon any
or all temporary Debt Securities of such series may be
surrendered in exchange therefor (without charge to the
holders), at the office or agency of the Company designated
for the purpose in the Borough of Manhattan, the City and
State of New York, and the Trustee shall authenticate and
such office or agency shall deliver in exchange for such
temporary Debt Securities an equal aggregate principal
amount of definitive Debt Securities of such series, unless
the Company advises the Trustee to the effect that
definitive Debt Securities need not be executed and
furnished until further notice from the Company. Until so
exchanged, the temporary Debt Securities of such series
shall be entitled to the same benefits under this Indenture
as definitive Debt Securities of such series authenticated
and delivered hereunder.
SECTION 2.07. Mutilated, Destroyed, Lost or
Stolen Debt Securities. In case any temporary or definitive
Debt Security shall become mutilated or be destroyed, lost
or stolen, the Company (subject to the next succeeding
sentence) shall execute, and upon the Company's request the
Trustee (subject as aforesaid) shall authenticate and
deliver, a new Debt Security of the same series, bearing a
number not contemporaneously outstanding, in exchange and
substitution for the mutilated Debt Security, or in lieu of
and in substitution for the Debt Security so destroyed, lost
or stolen. In every case the applicant for a substituted
Debt Security shall furnish to the Company and the Trustee
such security or indemnity as may be required by them to
save each of them harmless, and, in every case of
destruction, loss or theft, the applicant shall also furnish
to the Company and the Trustee evidence to their
satisfaction of the destruction, loss or theft of the
applicant's Debt Security and of the ownership thereof. The
Trustee may authenticate any such substituted Debt Security
and deliver the same upon the written request or
authorization of any officer of the Company. Upon the
issuance of any substituted Debt Security, the Company may
require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith. In case any
Debt Security that has matured or is about to mature shall
become mutilated or be destroyed, lost or stolen, the
Company may, instead of issuing a substitute Debt Security,
pay or authorize the payment of the same (without surrender
thereof except in the case of a mutilated Debt Security) if
the applicant for such payment shall furnish to the Company
and the Trustee such security or indemnity as they may
require to save them harmless, and, in case of destruction,
loss or theft, evidence to the satisfaction of the Company
and the Trustee of the destruction, loss or theft of such
Debt Security and of the ownership thereof.
Every replacement Debt Security issued pursuant to
the provisions of this Section shall constitute an
additional contractual obligation of the Company, whether or
not the mutilated, destroyed, lost or stolen Debt Security
shall be found at any time, or be enforceable by anyone, and
shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Debt
Securities of the same series duly issued hereunder. All
Debt Securities shall be held and owned upon the express
condition that the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated,
destroyed, lost or stolen Debt Securities, and shall
preclude (to the extent lawful) any and all other rights or
remedies, notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other
securities without their surrender.
SECTION 2.08. Cancellation. All Debt Securities
surrendered for the purpose of payment, redemption, exchange
or registration of transfer shall, if surrendered to the
Company or any paying agent, be delivered to the Trustee for
cancellation, or, if surrendered to the Trustee, shall be
cancelled by it, and no Debt Securities shall be issued in
lieu thereof except as expressly required or permitted by
any of the provisions of this Indenture. On request of the
Company at the time of such surrender, the Trustee shall
deliver to the Company canceled Debt Securities held by the
Trustee. In the absence of such request the Trustee may
dispose of canceled Debt Securities in accordance with its
standard procedures and deliver a certificate of disposition
to the Company. If the Company shall otherwise acquire any
of the Debt Securities, however, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness
represented by such Debt Securities unless and until the
same are delivered to the Trustee for cancellation.
SECTION 2.09. Benefits of Indenture. Nothing in
this Indenture or in the Debt Securities, express or
implied, shall give or be construed to give to any Person,
other than the parties hereto and the holders of the Debt
Securities (and, with respect to the provisions of Article
XIV, the holders of any indebtedness to which the Debt
Securities are subordinated) any legal or equitable right,
remedy or claim under or in respect of this Indenture, or
under any covenant, condition or provision herein contained;
all such covenants, conditions and provisions being for the
sole benefit of the parties hereto and of the holders of the
Debt Securities (and, with respect to the provisions of
Article XIV, the holders of any indebtedness to which the
Debt Securities are subordinated).
SECTION 2.10. Authenticating Agent. So long as
any Debt Securities of any series remain Outstanding, there
may be an Authenticating Agent for any or all such series of
Debt Securities which the Trustee shall have the right to
appoint. Said Authenticating Agent shall be authorized to
act on behalf of the Trustee to authenticate Debt Securities
of such series issued upon exchange, transfer or partial
redemption thereof, and Debt Securities so authenticated
shall be entitled to the benefits of this Indenture and
shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. All references in
this Indenture to the authentication of Debt Securities by
the Trustee shall be deemed to include authentication by an
Authenticating Agent for such series. Each Authenticating
Agent shall be acceptable to the Company and shall be a
corporation that has a combined capital and surplus, as most
recently reported or determined by it, sufficient under the
laws of any jurisdiction under which it is organized or in
which it is doing business to conduct a trust business, and
that is otherwise authorized under such laws to conduct such
business and is subject to supervision or examination by
federal or state authorities. If at any time any
Authenticating Agent shall cease to be eligible in
accordance with these provisions, it shall resign
immediately.
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 (and upon request
by the Company shall) terminate the agency of any
Authenticating Agent by giving written notice of termination
to such Authenticating Agent and to the Company. Upon
resignation, termination or cessation of eligibility of any
Authenticating Agent, the Trustee may appoint an eligible
successor Authenticating Agent acceptable to the Company.
Any successor Authenticating Agent, upon acceptance of its
appointment hereunder, shall become vested with all the
rights, powers and duties of its predecessor hereunder as if
originally named as an Authenticating Agent pursuant hereto.
SECTION 2.11. Global Securities. (a) If the
Company shall establish pursuant to Section 2.01 that the
Debt Securities of a particular series are to be issued as a
Global Security or Securities, then the Company shall
execute and the Trustee shall, in accordance with Section
2.04, authenticate and deliver, a Global Security that (i)
shall represent, and shall be denominated in an amount equal
to the aggregate principal amount of, all of the Outstanding
Debt Securities of such series, (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: "Except as otherwise
provided in Section 2.11 of the Indenture, this Debt
Security may be transferred, in whole but not in part, only
to another nominee of the Depositary or to a successor
Depositary or to a nominee of such successor Depositary."
(b) Notwithstanding the provisions of Section
2.05, the Global Security or Securities of a series may be
transferred, in whole but not in part and in the manner
provided in Section 2.05, only to another nominee of the
Depositary for such series, or to a successor Depositary for
such series selected or approved by the Company or to a
nominee of such successor Depositary.
(c) If at any time the Depositary for a series of
Debt Securities notifies the Company that it is unwilling or
unable to continue as Depositary for such series or if at
any time the Depositary for such series shall no longer be
registered or in good standing under the Exchange Act, or
other applicable statute or regulation, at a time when the
Depositary is required to be so registered to act as such
Depositary and a successor Depositary for such series is not
appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such condition, as
the case may be, this Section 2.11 shall no longer be
applicable to the Debt Securities of such series and the
Company will execute, and subject to Section 2.05, the
Trustee will authenticate and deliver the Debt Securities of
such series in definitive registered form without coupons,
in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Security
or Securities of such series in exchange for such Global
Security or Securities. In addition, the Company may at any
time determine that the Debt Securities of any series shall
no longer be represented by a Global Security or Securities
and that the provisions of this Section 2.11 shall no longer
apply to the Debt Securities of such series. In such event,
the Company will execute and subject to Section 2.05, the
Trustee, upon receipt of an Officers' Certificate evidencing
such determination by the Company, will authenticate and
deliver the Debt Securities of such series in definitive
registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to
the principal amount of the Global Security or Securities of
such series in exchange for such Global Security or
Securities. Upon the exchange of the Global Security or
Securities for such Debt Securities in definitive registered
form without coupons, in authorized denominations, the
Global Security or Securities shall be canceled by the
Trustee. Such Debt Securities in definitive registered form
issued in exchange for the Global Security or Securities
pursuant to this Section 2.11(c) shall be registered in such
names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Debt Securities to
the Depositary for delivery to the Persons in whose names
such Debt Securities are so registered.
ARTICLE III
REDEMPTION OF DEBT SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01. Redemption. The Company may redeem
the Debt Securities of any series issued hereunder on and
after the dates and in accordance with the terms established
for such series pursuant to Section 2.01 hereof.
SECTION 3.02. Notice of Redemption. (a) In case
the Company shall desire to exercise such right to redeem
all or, as the case may be, a portion of the Debt Securities
of any series in accordance with the right reserved so to
do, the Company shall, or shall cause the Trustee to, give
notice of such redemption to holders of the Debt Securities
of such series to be redeemed by mailing, first class
postage prepaid, a notice of such redemption not less than
30 days and not more than 90 days before the date fixed for
redemption of that series to such holders at their last
addresses as they shall appear upon the Security Register
unless a shorter period is specified in the Debt Securities
to be redeemed. Any notice that is mailed in the manner
herein provided shall be conclusively presumed to have been
duly given, whether or not the registered holder receives
the notice. In any case, failure duly to give such notice
to the holder of any Debt Security of any series designated
for redemption in whole or in part, or any defect in such
notice, shall not affect the validity of the proceedings for
the redemption of any other Debt Securities of such series
or any other series. In the case of any redemption of Debt
Securities prior to the expiration of any restriction on
such redemption provided in the terms of such Debt
Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing
compliance with any such restriction.
Each such notice of redemption shall specify the
date fixed for redemption and the redemption price at which
Debt Securities of that series are to be redeemed, and shall
state that payment of the redemption price of such Debt
Securities to be redeemed will be made at the office or
agency of the Company in the Borough of Manhattan, the City
and State of New York, upon presentation and surrender of
such Debt Securities, that interest accrued to the date
fixed for redemption will be paid as specified in said
notice, that from and after said date interest will cease to
accrue and that the redemption is for a sinking fund, if
such is the case. If less than all the Debt Securities of a
series are to be redeemed, the notice to the holders of Debt
Securities of that series to be redeemed in whole or in part
shall specify the particular Debt Securities to be so
redeemed. In case any Debt Security is to be redeemed in
part only, the notice that relates to such Debt Security
shall state the portion of the principal amount thereof to
be redeemed, and shall state that on and after the
redemption date, upon surrender of such Debt Security, a new
Debt Security or Debt Securities of such series in principal
amount equal to the unredeemed portion thereof will be
issued.
(b) If less than all the Debt Securities of a
series are to be redeemed, the Company shall give the
Trustee at least 45 days' notice in advance of the date
fixed for redemption as to the aggregate principal amount of
Debt Securities of the series to be redeemed, and thereupon
the Trustee shall select, by lot or in such other manner as
it shall deem appropriate and fair in its discretion and
that may provide for the selection of a portion or portions
(equal to twenty-five U.S. dollars ($25) or any integral
multiple thereof) of the principal amount of such Debt
Securities of a denomination larger than $25, the Debt
Securities to be redeemed and shall thereafter promptly
notify the Company in writing of the numbers of the Debt
Securities to be redeemed, in whole or in part.
The Company may, if and whenever it shall so
elect, by delivery of instructions signed on its behalf by
its President or any Vice President, instruct the Trustee or
any paying agent to call all or any part of the Debt
Securities of a particular series for redemption and to give
notice of redemption in the manner set forth in this
Section, such notice to be in the name of the Company or its
own name as the Trustee or such paying agent may deem
advisable. In any case in which notice of redemption is to
be given by the Trustee or any such paying agent, the
Company shall deliver or cause to be delivered to, or permit
to remain with, the Trustee or such paying agent, as the
case may be, such Security Register, transfer books or other
records, or suitable copies or extracts therefrom,
sufficient to enable the Trustee or such paying agent to
give any notice by mail that may be required under the
provisions of this Section.
SECTION 3.03. Payment Upon Redemption.
(a) If the giving of notice of redemption shall
have been completed as above provided, the Debt Securities
or portions of Debt Securities of the series to be redeemed
specified in such notice shall become due and payable on the
date and at the place stated in such notice at the
applicable redemption price, together with interest accrued
to the date fixed for redemption and interest on such Debt
Securities or portions of Debt Securities shall cease to
accrue on and after the date fixed for redemption, unless
the Company shall default in the payment of such redemption
price and accrued interest with respect to any such Debt
Security or portion thereof. On presentation and surrender
of such Debt Securities on or after the date fixed for
redemption at the place of payment specified in the notice,
said Debt Securities shall be paid and redeemed at the
applicable redemption price for such series, together with
interest accrued thereon to the date fixed for redemption
(but if the date fixed for redemption is an interest payment
date, the interest installment payable on such date shall be
payable to the registered holder at the close of business on
the applicable record date pursuant to Section 2.03).
(b) Upon presentation of any Debt Security of
such series that is to be redeemed in part only, the Company
shall execute and the Trustee shall authenticate and the
office or agency where the Debt Security is presented shall
deliver to the holder thereof, at the expense of the
Company, a new Debt Security or Debt Securities of the same
series, of authorized denominations in principal amount
equal to the unredeemed portion of the Debt Security so
presented.
SECTION 3.04. Sinking Fund. The provisions of
Sections 3.04, 3.05 and 3.06 shall be applicable to any
sinking fund for the retirement of Debt Securities of a
series, except as otherwise specified as contemplated by
Section 2.01 for Debt Securities of such series.
The minimum amount of any sinking fund payment
provided for by the terms of Debt Securities of any series
is herein referred to as a "mandatory sinking fund payment,"
and any payment in excess of such minimum amount provided
for by the terms of Debt Securities of any series is herein
referred to as an "optional sinking fund payment". If
provided for by the terms of Debt Securities of any series,
the cash amount of any sinking fund payment may be subject
to reduction as provided in Section 3.05. Each sinking fund
payment shall be applied to the redemption of Debt
Securities of any series as provided for by the terms of
Debt Securities of such series.
SECTION 3.05. Satisfaction of Sinking Fund
Payments with Debt Securities. The Company (i) may deliver
Outstanding Debt Securities of a series (other than any Debt
Securities previously called for redemption) and (ii) may
apply as a credit Debt Securities of a series that have been
redeemed either at the election of the Company pursuant to
the terms of such Debt Securities or through the application
of permitted optional sinking fund payments pursuant to the
terms of such Debt Securities, in each case in satisfaction
of all or any part of any sinking fund payment with respect
to the Debt Securities of such series required to be made
pursuant to the terms of such Debt Securities as provided
for by the terms of such series, provided that such Debt
Securities have not been previously so credited. Such Debt
Securities shall be received and credited for such purpose
by the Trustee at the redemption price specified in such
Debt Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment
shall be reduced accordingly.
SECTION 3.06. Redemption of Debt Securities for
Sinking Fund. Not less than 45 days prior to each sinking
fund payment date for any series of Debt Securities, the
Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of such
series, the portion thereof, if any, that is to be satisfied
by delivering and crediting Debt Securities of that series
pursuant to Section 3.05 and the basis for such credit and
will, together with such Officers' Certificate, deliver to
the Trustee any Debt Securities to be so delivered. Not
less than 30 days before each such sinking fund payment
date, the Trustee shall select the Debt Securities to be
redeemed upon such sinking fund payment date in the manner
specified in Section 3.02 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. Such notice
having been duly given, the redemption of such Debt
Securities shall be made upon the terms and in the manner
stated in Section 3.03.
ARTICLE IV
COVENANTS OF THE COMPANY
SECTION 4.01. Payment of Principal, Premium and
Interest. The Company will duly and punctually pay or cause
to be paid the principal of (and premium, if any) and
interest on the Debt Securities of each series at the time
and place and in the manner provided herein and established
with respect to such Debt Securities.
SECTION 4.02. Maintenance of Office or Agency.
So long as any series of the Debt Securities remain
Outstanding, the Company agrees to maintain an office or
agency in the Borough of Manhattan, the City and State of
New York, with respect to each such series and at such other
location or locations as may be designated as provided in
this Section 4.02, where (i) Debt Securities of such series
may be presented for payment, (ii) Debt Securities of such
series may be presented as hereinabove authorized for
registration of transfer and exchange, and (iii) notices and
demands to or upon the Company in respect of the Debt
Securities of such series and this Indenture may be given or
served, such designation to continue with respect to such
office or agency until the Company shall, by written notice
signed by its President or a Vice President and delivered to
the trustee, designate some other office or agency for such
purposes or any of them. If at any time the Company shall
fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such
presentations, notices and demands may be made or served at
the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such
presentations, notices and demands.
SECTION 4.03. Paying Agents.
(a) If the Company shall appoint one or more
paying agents for all or any series of the Debt Securities,
other than the Trustee, the Company will cause each 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 it will hold all sums held by it as such
agent for the payment of the principal of (and premium,
if any) or interest on the Debt Securities of that
series (whether such sums have been paid to it by the
Company or by any other obligor of such Debt
Securities) in trust for the benefit of the Persons
entitled thereto;
(2) that it will give the Trustee notice of any
failure by the Company to make any payment of the
principal of (and premium, if any) or interest on the
Debt Securities of that series when the same shall be
due and payable;
(3) that it will, at any time during the
continuance of any failure referred to in the preceding
paragraph (a)(2) above, upon the written request of the
Trustee, forthwith pay to the Trustee all sums so held
in trust by such paying agent; and
(4) that it will perform all other duties of
paying agent as set forth in this Indenture.
(b) If the Company shall act as its own paying
agent with respect to any series of the Debt Securities, it
will on or before each due date of the principal of (and
premium, if any) or interest on Debt Securities of that
series, set aside, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to
pay such principal (and premium, if any) or interest so
becoming due on Debt Securities of that series until such
sums shall be paid to such Persons or otherwise disposed of
as herein provided and will promptly notify the Trustee of
such action, or any failure by it to take such action.
Whenever the Company shall have one or more paying agents
for any series of Debt Securities, it will, on or before
each due date of the principal of (and premium, if any) or
interest on any Debt Securities of that series, deposit with
the paying agent a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due, such sum to be
held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such paying
agent is the Trustee) the Company will promptly notify the
Trustee of such deposit or failure so to deposit.
(c) Notwithstanding anything in this Section to
the contrary, (i) the agreement to hold sums in trust as
provided in this Section is subject to the provisions of
Section 11.05, and (ii) the Company may at any time, for the
purpose of obtaining the satisfaction and discharge of this
Indenture or for any other purpose, pay, or direct any
paying agent to pay, to the Trustee all sums held in trust
by the Company or such paying agent, such sums to be held by
the Trustee upon the same terms and conditions as those upon
which such sums were held by the Company or such paying
agent; 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.
SECTION 4.04. Appointment to Fill 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 7.10, a Trustee, so that
there shall at all times be a Trustee hereunder.
SECTION 4.05. Compliance with Consolidation
Provisions. The Company will not, while any of the Debt
Securities remain Outstanding, consolidate with, or merge
into, or merge into itself, or sell or convey all or
substantially all of its property to any other company
unless the provisions of Article X hereof are complied with.
SECTION 4.06. Limitation on Dividends;
Transactions with Affiliates.
(a) If Debt Securities are issued to a Trust or a
trustee of such Trust in connection with the issuance of
Preferred Securities by such Trust and (i) there shall have
occurred any event that would constitute an Event of Default
or (ii) the Company shall be in default with respect to its
payment or any obligations under the Preferred Securities
Guarantee relating to such Preferred Securities, then (x)
the Company shall not declare or pay any dividend on, make
any distributions with respect to, or redeem, purchase or
make a liquidation payment with respect to, any of its
capital stock (other than (A) purchases or acquisitions of
shares of Company common stock in connection with the
satisfaction by the Company of its obligations under any
employee benefit plans or any other contractual obligations
of the Company, other than a contractual obligation ranking
pari passu with or junior to the Debt Securities), (B) as a
result of a reclassification of Company capital stock or the
exchange or conversion of one class or series of Company
capital stock for another class or series of Company capital
stock, or (C) the purchase of fractional interests in shares
of Company capital stock pursuant to the conversion or
exchange provisions of such Company capital stock or the
security being converted or exchanged), (y) the Company
shall not make any payment of interest, principal or
premium, if any, on or repay, repurchase or redeem any debt
securities (including guarantees) issued by the Company
which rank pari passu with or junior to such Debt Securities
and (z) the Company shall not make guarantee payments with
respect to the foregoing (other than pursuant to Preferred
Securities Guarantees).
(b) If Debt Securities are issued to a Trust or a
trustee of such Trust in connection with the issuance of
Trust Securities by such Trust and the Company shall have
given notice of its election to defer payments of interest
on such Debt Securities by extending the interest payment
period as provided in any indenture supplemental hereto and
such period, or any extension thereof, shall be continuing,
then (i) the Company shall not declare or pay any dividend,
or make any distributions with respect to, or redeem,
purchase or make a liquidation payment with respect to, any
of its capital stock (other than (A) purchases or
acquisitions of shares of Company common stock in connection
with the satisfaction by the Company of its obligations
under any employee benefit plans or any other contractual
obligations of the Company, other than a contractual
obligation ranking pari passu with or junior to the Debt
Securities) (B) as a result of a reclassification of Company
capital stock or the exchange or conversion of one class or
series of Company capital stock for another class or series
of Company capital stock, or (C) the purchase of fractional
interests in shares of Company capital stock pursuant to the
conversion or exchange provisions of such Company capital
stock or the security being converted or exchanged), (ii)
the Company shall not make any payment of interest,
principal or premium, if any, on or repay, repurchase or
redeem any debt securities (including guarantees) issued by
the Company which rank pari passu with or junior to such
Debt Securities and (iii) the Company shall not make any
guarantee payments with respect to the foregoing (other than
pursuant to Preferred Securities Guarantees).
SECTION 4.07. Covenants as to Trust. In the
event Debt Securities are issued and sold to a Trust in
connection with the issuance of Trust Securities by such
Trust, for so long as such Trust Securities remain
outstanding, the Company will (i) maintain 100% direct or
indirect ownership of the Common Securities of such Trust;
provided, however, that any permitted successor of the
Company under the Indenture may succeed to the Company's
ownership of such Common Securities, (ii) not cause, as
sponsor of such Trust, or permit, as holder of Common
Securities of such Trust, the dissolution, winding-up or
termination of such trust, except in connection with a
distribution of Debt Securities as provided in the
Declaration and in connection with certain mergers,
consolidations or amalgamations permitted by the Declaration
and (iii) use its reasonable efforts to cause such Trust (a)
to remain a business trust, except in connection with a
distribution of Debt Securities, the redemption of all of
the Trust Securities of such Trust or certain mergers,
consolidations or amalgamations, each as permitted by the
Declaration of such Trust, and (b) to otherwise continue to
be classified for United States federal income tax purposes
as a grantor trust.
SECTION 4.08. Corporate Existence. The Company
will, subject to the provisions of Article X, at all times
maintain its corporate existence and right to carry on
business and will duly procure all renewals and extensions
thereof, and, to the extent necessary or desirable in the
operation of its business, will use its best efforts to
maintain, preserve and renew all of its rights, powers,
privileges and material franchises.
ARTICLE V
SECURITYHOLDERS, LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 5.01. Company to Furnish Trustee Names
and Addresses of Securityholders. The Company will furnish
or cause to be furnished to the Trustee (a) on a quarterly
basis on each regular record date (as defined in Section
2.03) a list, in such form as the Trustee may reasonably
require, of the names and addresses of the holders of each
series of Debt Securities as of such regular record date,
provided that the Company shall not be obligated to furnish
or cause to be furnished such list at any time that such
list shall not differ in any respect from the most recent
list furnished to the Trustee by the Company and (b) at such
other times as the Trustee may request in writing within 30
days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than
15 days prior to the time such list is furnished; provided,
however, that in either case, no such list need be furnished
for any series of Debt Securities for which the Trustee
shall be the Security Registrar.
SECTION 5.02. Preservation Of Information;
Communications With Securityholders.
(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 Debt Securities
contained in the most recent list furnished to it as
provided in Section 5.01 and as to the names and addresses
of holders of Debt Securities received by the Trustee in its
capacity as Security Registrar (if acting in such capacity).
(b) The Trustee may destroy any list furnished to
it as provided in Section 5.01 upon receipt of a new list so
furnished.
(c) Securityholders may communicate as provided
in Section 312(b) of the Trust Indenture Act with other
Securityholders with respect to their rights under this
Indenture or under the Debt Securities.
SECTION 5.03. Reports By the Company.
(a) The Company covenants and agrees to 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) that the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act; or, if the Company is not required to file
information, documents or reports pursuant to either of such
sections, then to file with the Trustee and the Commission,
in accordance with the rules and regulations prescribed from
time to time by the Commission, such of the supplementary
and periodic information, documents and reports that may be
required pursuant to Section 13 of the Exchange Act, 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) The Company covenants and agrees to file with
the Trustee and the Commission, in accordance with the rules
and regulations prescribed from to time by the Commission,
such additional information, documents and reports with
respect to compliance by the Company with the conditions and
covenants provided for in this Indenture as may be required
from time to time by such rules and regulations.
(c) The Company covenants and agrees to transmit
by mail, first class postage prepaid, or reputable overnight
delivery service that provides for evidence of receipt, to
the Securityholders, as their names and addresses appear
upon the Security Register, within 30 days after the filing
thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company
pursuant to subsections (a) and (b) of this Section as may
be required by rules and regulations prescribed from time to
time by the Commission.
SECTION 5.04. Reports by the Trustee.
(a) Within 60 days after May 15 of each year in
which any of the Debt Securities are Outstanding, the
Trustee shall transmit by mail, first class postage prepaid,
to the Securityholders, as their names and addresses appear
upon the Security Register, a brief report dated as of the
preceding May 15, if and to the extent required under
Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Sections 313(b)
and 313(c) of the Trust Indenture Act.
(c) A copy of each such report shall, at the time
of such transmission to Securityholders, be filed by the
Trustee with the Company, with each stock exchange upon
which any Debt Securities are listed (if so listed) and also
with the Commission. The Company agrees to notify the
Trustee when any Debt Securities become listed on any stock
exchange.
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01. Events of Default.
(a) Whenever used herein with respect to Debt
Securities of a particular series, "Event of Default" means
any one or more of the following events that has occurred
and is continuing:
(1) the Company defaults in the payment of any
installment of interest upon any of the Debt Securities
of that series, as and when the same shall become due
and payable, and continuance of such default for a
period of 30 days; provided, however, that a valid
extension of an interest payment period by the Company
in accordance with the terms of any indenture
supplemental hereto, shall not constitute a default in
the payment of interest for this purpose;
(2) the Company defaults in the payment of the
principal of (or premium, if any, on) any of the Debt
Securities of that series as and when the same shall
become due and payable whether at maturity, upon
redemption, by declaration or otherwise, or in any
payment required by any sinking or analogous fund
established with respect to that series;
(3) the Company fails to observe or perform any
other of its covenants or agreements with respect to
that series contained in this Indenture or otherwise
established with respect to that series of Debt
Securities pursuant to Section 2.01 hereof (other than
a covenant or agreement that has been expressly
included in this Indenture solely for the benefit of
one or more series of Debt Securities other than such
series) for a period of 90 days after the date on which
written notice of such failure, requiring the same to
be remedied and stating that such notice is a "Notice
of Default" hereunder, shall have been given to the
Company by the Trustee, by registered or certified
mail, or to the Company and the Trustee by the holders
of at least 25% in principal amount of the Debt
Securities of that series at the time Outstanding;
(4) the Company pursuant to or within the meaning
of any Bankruptcy Law (i) commences a voluntary case,
(ii) consents to the entry of an order for relief
against it in an involuntary case, (iii) consents to
the appointment of a Custodian of it or for all or
substantially all of its property or (iv) makes a
general assignment for the benefit of its creditors;
(5) a court of competent jurisdiction enters an
order under any Bankruptcy Law that (i) is for relief
against the Company in an involuntary case, (ii)
appoints a Custodian of the Company for all or
substantially all of its property, or (iii) orders the
liquidation of the Company, and the order or decree
remains unstayed and in effect for 90 days; or
(6) in the event Debt Securities are issued and
sold to a Trust of the Company in connection with the
issuance of Trust Securities by such Trust, such Trust
shall have voluntarily or involuntarily dissolved,
wound-up its business or otherwise terminated its
existence except in connection with (i) the
distribution of Debt Securities to holders of Trust
Securities in liquidation of their interests in such
Trust, (ii) the redemption of all outstanding Trust
Securities of such Trust, and (iii) mergers,
consolidations or amalgamations, each as permitted by
the Declaration of such Trust.
(b) If an Event of Default described in clauses
1, 2, 3 or 6 of Section 6.01(a) with respect to Debt
Securities of any series at the time outstanding occurs and
is continuing, unless the principal of all the Debt
Securities of that series shall have already become due and
payable, either the Trustee or the holders of not less than
25% in aggregate principal amount of the Debt Securities of
that series then Outstanding hereunder, by notice in writing
to the Company (and to the Trustee, if given by such
Securityholders), may declare the principal of all the Debt
Securities of that series to be due and payable immediately,
and upon any such declaration the same shall become and
shall be immediately due and payable, notwithstanding
anything contained in this Indenture or in the Debt
Securities of that series or established with respect to
that series pursuant to Section 2.01 to the contrary. If an
Event of Default specified in clause (4) or (5) of Section
6.01(a) occurs or is continuing, then the principal amount
of all the Debt Securities shall ipso facto become and be
immediately due and payable without any declaration or other
act on the part of the Trustee or any Securityholder.
(c) At any time after the principal of the Debt
Securities of that 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 holders of a majority
in aggregate principal amount of the Debt Securities of that
series then Outstanding hereunder, by written notice to the
Company and the Trustee, may rescind and annul such
declaration and its consequences if: (i) the Company has
paid or deposited with the Trustee a sum sufficient to pay
all matured installments of interest upon all the Debt
Securities of that series and the principal of (and premium,
if any, on) any and all Debt Securities of that series that
shall have become due otherwise than by acceleration (with
interest upon such principal and premium, if any, and, to
the extent that such payment is enforceable under applicable
law, upon overdue installments of interest, at the rate per
annum expressed in the Debt Securities of that series to the
date of such payment or deposit) and the amount payable to
the Trustee under Section 7.06, and (ii) any and all Events
of Default under the Indenture with respect to such series,
other than the nonpayment of principal on Debt Securities of
that series that shall not have become due by their terms,
shall have been remedied or waived as provided in
Section 6.06.
No such rescission and annulment shall extend to
or shall affect any subsequent default or impair any right
consequent thereon.
(d) In case the Trustee shall have proceeded to
enforce any right with respect to Debt Securities of that
series 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 former positions and rights hereunder,
and all rights, remedies and powers of the Company and the
Trustee shall continue as though no such proceedings had
been taken.
SECTION 6.02. Collection of Indebtedness and
Suits for Enforcement by Trustee.
(a) The Company covenants that (1) in case it
shall default in the payment of any installment of interest
on any of the Debt Securities of a series, or any payment
required by any sinking or analogous fund established with
respect to that series as and when the same shall have
become due and payable, and such default shall have
continued for a period of 90 days, or (2) in case it shall
default in the payment of the principal of (or premium, if
any, on) any of the Debt Securities of a series when the
same shall have become due and payable, whether upon
maturity of the Debt Securities of a series or upon
redemption or upon declaration or otherwise, then, upon
demand of the Trustee, the Company will pay to the Trustee,
for the benefit of the holders of the Debt Securities of
that series, the whole amount that then shall have become
due and payable on all such Debt Securities for principal
(and premium, if any) or interest, or both, as the case may
be, with interest upon the overdue principal (and premium,
if any) and (to the extent that payment of such interest is
enforceable under applicable law and, if the Debt Securities
are held by a Trust, without duplication of any other
amounts paid by such Trust in respect thereof) upon overdue
installments of interest at the rate per annum expressed in
the Debt Securities of that series; and, in addition
thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection and the amount payable
to the Trustee under Section 7.06.
(b) If the Company shall fail to pay such amounts
forthwith upon such demand, the Trustee, in its own name and
as trustee of an express trust, shall be entitled and
empowered to institute any action or proceedings at law or
in equity for the collection of the sums so due and unpaid,
and may prosecute any such action or proceeding to judgment
or final decree, and may enforce any such judgment or final
decree against the Company or other obligor upon the Debt
Securities of that series and collect the moneys adjudged or
decreed to be payable in the manner provided by law out of
the property of the Company or other obligor upon the
Securities of that series, wherever situated.
(c) In case of any receivership, insolvency,
liquidation, bankruptcy, reorganization, readjustment,
arrangement, composition or judicial proceedings affecting
the Company or its creditors or property, the Trustee shall
have power to intervene in such proceedings and take any
action therein that may be permitted by the court and shall
(except as may be otherwise provided by law) be entitled to
file such proofs of claim and other papers and documents as
may be necessary or advisable in order to have the claims of
the Trustee and of the holders of Debt Securities of such
series allowed for the entire amount due and payable by the
Company under this Indenture at the date of institution of
such proceedings and for any additional amount that may
become due and payable by the Company after such date, and
to collect and receive any moneys or other property payable
or deliverable on any such claim, and to distribute the same
after the deduction of the amount payable to the Trustee
under Section 7.06; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of
the holders of Debt Securities of such series to make such
payments to the Trustee, and, in the event that the Trustee
shall consent to the making of such payments directly to
such Securityholders, to pay to the Trustee any amount due
it under Section 7.06.
(d) All rights of action and of asserting claims
under this Indenture, or under any of the terms established
with respect to Debt Securities of that series, may be
enforced by the Trustee without the possession of any of
such Debt Securities, or the production thereof at any trial
or other proceeding relative thereto, and any such suit or
proceeding instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of
judgment shall, after provision for payment to the Trustee
of any amounts due under Section 7.06, be for the ratable
benefit of the holders of the Debt Securities of such
series.
In case of an Event of Default hereunder, the
Trustee may in its discretion proceed to protect and enforce
the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights,
either at law or in equity or in bankruptcy or otherwise,
whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the
exercise of any power granted in this Indenture, or to
enforce any other legal or equitable right vested in the
Trustee by this Indenture or by law.
Nothing contained herein shall be deemed to
authorize the Trustee to authorize or consent to or accept
or adopt on behalf of any Securityholder any plan of
reorganization, arrangement, adjustment or composition
affecting the Securities of that series or the rights of any
holder thereof or to authorize the Trustee to vote in
respect of the claim of any Securityholder in any such
proceeding.
SECTION 6.03. Application of Moneys Collected.
Any moneys collected by the Trustee pursuant to this Article
with respect to a particular series of Debt Securities shall
be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of
such moneys on account of principal (or premium, if any) or
interest, upon presentation of the Debt Securities of that
series, and notation thereon of the payment, if only
partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of
collection and of all amounts payable to the Trustee
under Section 7.06;
SECOND: To the payment of all indebtedness to
which the Debt Securities are subordinated if and to
the extent required by Article XIV; and
THIRD: To the payment of the amounts then due and
unpaid upon Debt Securities of such series for
principal (and premium, if any) and interest, in
respect of which or for the benefit of which such money
has been collected, ratably, without preference or
priority of any kind, according to the amounts due and
payable on such Debt Securities for principal (and
premium, if any) and interest, respectively.
SECTION 6.04. Limitation on Suits. No holder of
any Debt Security of any series shall have any right by
virtue or by availing of any provision of this Indenture to
institute any suit, action or proceeding in equity or at law
upon or under or with respect to this Indenture or for the
appointment of a receiver or trustee, or for any other
remedy hereunder, unless (i) such holder previously shall
have given to the Trustee written notice of an Event of
Default and of the continuance thereof with respect to the
Debt Securities of such series specifying such Event of
Default, as herein provided; (ii) the holders of not less
than 25% in aggregate principal amount of the Debt
Securities of such series then Outstanding shall have made
written request upon the Trustee to institute such action,
suit or proceeding in its own name as trustee hereunder;
(iii) such holder or holders 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 (iv) the Trustee for 60 days after its
receipt of such notice, request and offer of indemnity,
shall have failed to institute any such action, suit or
proceeding; and (v) during such 60 day period, the holders
of a majority in principal amount of the Debt Securities of
that series do not give the Trustee a direction inconsistent
with the request.
Notwithstanding anything contained herein to the
contrary, any other provisions of this Indenture, the right
of any holder of any Debt Security to receive payment of the
principal of (and premium, if any) and interest on such Debt
Security, as therein provided, on or after the respective
due dates expressed in such Debt Security (or in the case of
redemption, on the redemption date), or to institute suit
for the enforcement of any such payment on or after such
respective dates or redemption date, shall not be impaired
or affected without the consent of such holder, and by
accepting a Debt Security hereunder it is expressly
understood, intended and covenanted by the taker and holder
of every Debt Security of such series with every other such
taker and holder and the Trustee, that no one or more
holders of Debt Securities of such series shall have any
right in any manner whatsoever by virtue or by availing of
any provision of this Indenture to affect, disturb or
prejudice the rights of the holders of any other of such
Debt Securities, or to obtain or seek to obtain priority
over or preference to any other such holder, or to enforce
any right under this Indenture, except in the manner herein
provided and for the equal, ratable and common benefit of
all holders of Debt Securities of such series. For the
protection and enforcement of the provisions of this
Section, each and every Securityholder and the Trustee shall
be entitled to such relief as can be given either at law or
in equity.
SECTION 6.05. Rights and Remedies Cumulative;
Delay or Omission Not Waiver.
(a) Except as otherwise provided in Section 2.07,
all powers and remedies given by this Article to the Trustee
or to the Securityholders shall, to the extent permitted by
law, be deemed cumulative and not exclusive of any other
powers and remedies available to the Trustee or the holders
of the Debt Securities, by judicial proceedings or
otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture or
otherwise established with respect to such Debt Securities.
(b) No delay or omission of the Trustee or of any
holder of any of the Debt Securities 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
default or an acquiescence therein; and, subject to the
provisions of Section 6.04, every power and remedy given by
this Article or by law to the Trustee or the Securityholders
may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Securityholders.
SECTION 6.06. Control by Securityholders. The
holders of a majority in aggregate principal amount of the
Debt Securities of any series at the time Outstanding, deter
mined in accordance with Section 8.04, shall have the right
to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with
respect to such series; provided, however, that such
direction shall not be in conflict with any rule of law or
with this Indenture or be unduly prejudicial to the rights
of holders of Debt Securities of any other series at the
time Outstanding determined in accordance with Section 8.04.
Subject to the provisions of Section 7.01, the Trustee shall
have the right to decline to follow any such direction if
the Trustee in good faith shall, by a Responsible Officer or
Officers of the Trustee, determine that the proceeding so
directed would involve the Trustee in personal liability.
The holders of a majority in aggregate principal amount of
the Debt Securities of any series at the time Outstanding
affected thereby, determined in accordance with Section
8.04, may on behalf of the holders of all of the Debt
Securities of such series waive any past default in the
performance of any of the covenants contained herein or
established pursuant to Section 2.01 with respect to such
series and its consequences, except (i) a default in the
payment of the principal of, or premium, if any, or interest
on, any of the Debt Securities of that series as and when
the same shall become due by the terms of such Debt
Securities otherwise than by acceleration (unless such
default has been cured and a sum sufficient to pay all
matured installments of interest and principal and any
premium has been deposited with the Trustee (in accordance
with Section 6.01(c)) or (ii) a default in the covenants
contained in Section 4.06(b). Upon any such waiver, the
default covered thereby shall be deemed to be cured for all
purposes of this Indenture and the Company, the Trustee and
the holders of the Debt Securities of such series shall be
restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any
subsequent or other default or impair any right consequent
thereon.
SECTION 6.07. Undertaking to Pay Costs. All
parties to this Indenture agree, and each holder of any Debt
Securities by such holder's acceptance thereof shall be
deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the
Trustee for any action taken or omitted by it as Trustee,
the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply
to any suit instituted by the Trustee, to any suit
instituted by any Securityholder, or group of
Securityholders, holding more than 10% in aggregate
principal amount of the Outstanding Debt Securities of any
series, or to any suit instituted by any Securityholder for
the enforcement of the payment of the principal of (or
premium, if any) or interest on any Debt Security of such
series, on or after the respective due dates expressed in
such Debt Security or established pursuant to this
Indenture.
SECTION 6.08. Acknowledgement Regarding Preferred
Securities Holders. The Company acknowledges that, with
respect to any Debt Securities held by a Trust or a trustee
of such Trust, if the Property Trustee of such Trust fails
to enforce its rights under this Indenture as the holder of
the series of Debt Securities held as the assets of such
Trust, then holders of Preferred Securities of such Trust
may institute legal proceedings directly against the Company
to enforce such rights under this Indenture without first
instituting any legal proceedings against such Property
Trustee or any other Person.
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.01. Certain Duties and Responsibilities
of Trustee.
(a) The Trustee, prior to the occurrence of an
Event of Default with respect to the Debt Securities of a
series and after the curing of all Events of Default with
respect to the Debt Securities of that series that may have
occurred, shall undertake to perform with respect to the
Debt Securities of such series such duties and only such
duties as are specifically set forth in this Indenture, and
no implied covenants shall be read into this Indenture
against the Trustee. In case an Event of Default with
respect to the Debt Securities of a series has occurred
(that has not been cured or waived), the Trustee shall
exercise with respect to Debt Securities of that series 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 provision of this Indenture shall be
construed to relieve the Trustee from liability for its own
negligent action, its own negligent failure to act, or its
own willful misconduct, except that:
(1) prior to the occurrence of an Event of Default
with respect to the Debt Securities of a series and after
the curing or waiving of all such Events of Default with
respect to that series that may have occurred:
(i) the duties and obligations of the Trustee
shall with respect to the Debt Securities of such
series be determined solely by the express provisions
of this Indenture, and the Trustee shall not be liable
with respect to the Debt Securities of such series
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
(ii) in the absence of bad faith on the part of
the Trustee, the Trustee may with respect to the Debt
Securities of such series 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 that 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 requirement of this Indenture;
(2) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee unless it shall be
proved that the Trustee was negligent in ascertaining the
pertinent facts;
(3) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the holders of not
less than a majority in principal amount of the Debt
Securities of any series at the time Outstanding 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 Debt Securities of that series; and
(4) None of the provisions contained in this
Indenture shall require the Trustee to expend or risk its
own funds or otherwise incur personal financial liability in
the performance of any of its duties or in the exercise of
any of its rights or powers, if there is reasonable ground
for believing that the repayment of such funds or liability
is not reasonably assured to it under the terms of this
Indenture or adequate indemnity against such risk is not
reasonably assured to it.
SECTION 7.02. Certain Rights of Trustee. Except
as otherwise provided in Section 7.01:
(a) The Trustee may rely and shall be fully
protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order,
approval, bond, security or other paper or document believed
by it to be genuine and to have been signed, sent 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 a Board Resolution or an instrument signed in the name of
the Company by the President, or any Vice President and by
the Secretary or an Assistant Secretary or the Treasurer or
an Assistant Treasurer thereof (unless other evidence in
respect thereof is specifically prescribed herein).
(c) The Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel
with respect to legal matters shall be full and complete
authorization and protection in respect of any action taken
or 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
Securityholders, pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to
the Trustee reasonable security or indemnity against the
costs, expenses (including attorneys' fees and expenses) and
liabilities that might be incurred by it in complying with
such request or direction, provided that nothing contained
herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default with
respect to a series of the Debt Securities (that has not
been cured or waived) to exercise with respect to Debt
Securities of that series such of the rights and powers
vested in it by this Indenture, and to use the same degree
of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct
of his or her own affairs.
(e) The Trustee shall not be liable for any
action taken or omitted to be taken 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) The Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order,
approval, bond, security, or other papers or documents,
unless requested in writing so to do by the holders of not
less than a majority in principal amount of the Outstanding
Debt Securities of the particular series affected thereby
(determined as provided in Section 8.04); provided, however,
that if the payment within a reasonable time to the Trustee
of the costs, expenses or liabilities likely to be incurred
by it in the making of such investigation is, in the opinion
of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such costs,
expenses or liabilities as a condition to so proceeding.
The reasonable expense of every such examination shall be
paid by the Company or, if paid by the Trustee, shall be
repaid by the Company upon demand.
(g) The Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys, and the
Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed
with due care by it hereunder.
(h) Whenever in the administration of this
Indenture the Trustee shall deem it desirable that a matter
be proved or established before taking, suffering or
omitting any action hereunder, the Trustee (unless other
evidence is herein specifically prescribed) may, in the
absence of bad faith on its part, request and rely upon an
Officers' Certificate.
SECTION 7.03. Trustee Not Responsible for
Recitals or Issuance of Debt Securities.
(a) The recitals contained herein and in the Debt
Securities shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for the
correctness of the same.
(b) The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Debt
Securities.
(c) The Trustee shall not be accountable for the
use or application by the Company of any of the Debt Securities
or of the proceeds of such Debt Securities, or for the use
or application of any moneys paid over by the Trustee in
accordance with any provision of this Indenture or
established pursuant to Section 2.01, or for the use or
application of any moneys received by any paying agent other
than the Trustee.
SECTION 7.04. May Hold Debt Securities. The
Trustee or any paying agent or Security Registrar, in its
individual or any other capacity, may become the owner or
pledgee of Debt Securities with the same rights it would
have if it were not Trustee, paying agent or Security
Registrar.
SECTION 7.05. Moneys Held in Trust. Subject to
the provisions of Section 11.05, 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 shall be under no
liability for interest on any moneys received by it
hereunder except such as it may agree with the Company to
pay thereon.
SECTION 7.06. Compensation and Reimbursement.
(a) The Company covenants and agrees to pay to
the Trustee, and the Trustee shall be entitled to, such
reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee
of an express trust), as the Company and the Trustee may
from time to time agree in writing, for all services
rendered by it in the execution of the trusts hereby created
and in the exercise and performance of any of the powers and
duties hereunder of the Trustee, and, except as otherwise
expressly provided herein, the Company will pay or reimburse
the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee
in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its counsel and of all Persons not
regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or
bad faith. The Company also covenants to indemnify the
Trustee (and its officers, agents, directors and employees)
for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on the part
of the Trustee and arising out of or in connection with the
acceptance or administration of this Indenture, including
the costs and expenses of defending itself against any claim
of liability in the premises.
(b) The obligations of the Company under this
Section to compensate and indemnify the Trustee and to pay
or reimburse the Trustee for expenses, disbursements and
advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this
Indenture. Such additional indebtedness shall be secured by
a lien prior to that of the Debt Securities upon all
property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the holders of
particular Debt Securities.
SECTION 7.07. Reliance on Officers' Certificate.
Except as otherwise provided in Section 7.01, whenever in
the administration of the provisions of this Indenture the
Trustee shall deem it necessary or desirable that a matter
be proved or established prior to taking or suffering or
omitting to take 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 certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be
full warrant to the Trustee for any action taken, suffered
or omitted to be taken by it under the provisions of this
Indenture upon the faith thereof.
SECTION 7.08. Qualification; Conflicting
Interests. If the Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b)
of the Trust Indenture Act, the Trustee and the Company
shall in all respects comply with the provisions of Section
310(b) of the Trust Indenture Act.
SECTION 7.09. Corporate Trustee Required;
Eligibility. There shall at all times be a Trustee with
respect to the Debt Securities issued hereunder which shall
at all times be a corporation organized and doing business
under the laws of the United States of America or any State
or Territory thereof or of the District of Columbia, or a
corporation or other Person permitted to act as trustee by
the Commission, authorized under such laws to exercise
corporate trust powers, having a combined capital and
surplus of at least fifty million U.S. dollars
($50,000,000), and subject to supervision or examination by
Federal, State, Territorial or District of Columbia
authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. The
Company may not, nor may any Person directly or indirectly
controlling, controlled by, or under common control with the
Company, serve as Trustee. In case at any time the Trustee
shall cease to be eligible in accordance with the provisions
of this Section, the Trustee shall resign immediately in the
manner and with the effect specified in Section 7.10.
SECTION 7.10. Resignation and Removal;
Appointment of Successor.
(a) The Trustee or any successor hereafter
appointed, may at any time resign with respect to the Debt
Securities of one or more series by giving written notice
thereof to the Company and by transmitting notice of
resignation by mail, first class postage prepaid, to the
Securityholders of such series, as their names and addresses
appear upon the Security Register. Upon receiving such
notice of resignation, the Company shall promptly appoint a
successor Trustee with respect to the Debt Securities of
such series by written instrument, in duplicate, executed by
order of the Board of Directors, one copy of which
instrument shall be delivered to the resigning Trustee and
one copy to the successor Trustee. If no successor Trustee
shall have been so appointed and have accepted appointment
within 30 days after the mailing of such notice of
resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor
trustee with respect to the Debt Securities of such series,
or any Securityholder of that series who has been a bona
fide holder of a Debt Security or Debt Securities for at
least six months may, subject to the provisions of Section
6.08, on behalf of that holder and all others similarly
situated, petition any such court for the appointment of a
successor Trustee. Such court may thereupon after such
notice, if any, as it may deem proper and prescribe, appoint
a successor Trustee.
(b) In case at any time any one of the following
shall occur:
(1) the Trustee shall fail to comply with the
provisions of subsection (a) of Section 7.10 after
written request therefor by the Company or by any
Securityholder who has been a bona fide holder of a
Debt Security or Debt Securities for at least six
months; or
(2) the Trustee shall cease to be eligible in
accordance with the provisions of Section 7.09 and
shall fail to resign after written request therefor by
the Company or by any such Securityholder; or
(3) the Trustee shall become incapable of acting,
or shall be adjudged a bankrupt or insolvent, or
commence a voluntary bankruptcy proceeding, or a
receiver of the Trustee or of its property shall be
appointed or consented to, or any public officer shall
take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation, then, in any such case,
the Company may remove the Trustee with respect to all
Debt Securities and appoint a successor Trustee by
written instrument, in duplicate, executed by order of
the Board of Directors, one copy of which instrument
shall be delivered to the Trustee so removed and one
copy to the successor Trustee, or, subject to the
provisions of Section 6.08, unless the Trustee's duty
to resign is stayed as provided herein, any
Securityholder who has been a bona fide holder of a
Debt Security or Debt Securities for at least six
months may, on behalf of that holder and all others
similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee. Such court may
thereupon after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a
successor Trustee.
(c) The holders of a majority in aggregate
principal amount of the Debt Securities of any series at the
time Outstanding may at any time remove the Trustee with
respect to such series by so notifying the Trustee and the
Company and may appoint a successor Trustee for such series
with the consent of the Company.
(d) Any resignation or removal of the Trustee and
appointment of a successor Trustee with respect to the Debt
Securities of a series pursuant to any of the provisions of
this Section shall become effective upon acceptance of
appointment by the successor Trustee as provided in Section
7.11.
(e) Any successor Trustee appointed pursuant to
this Section may be appointed with respect to the Debt Securities
of one or more series or all of such series, and at any time
there shall be only one Trustee with respect to the Debt
Securities of any particular series.
SECTION 7.11. Acceptance of Appointment By
Successor.
(a) In case of the appointment hereunder of a
successor Trustee with respect to all Debt Securities, every
such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without
any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument
transferring to such successor trustee all the rights,
powers, and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a
successor Trustee with respect to the Debt Securities of one
or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Debt
Securities of one or more series shall execute and deliver
an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor
Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Debt Securities of that
or those series to which the appointment of such successor
Trustee relates, (2) shall contain such provisions as shall
be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the retiring Trustee
with respect to the Debt Securities of that or those series
as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (3) shall
add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-
trustees of the same trust, that each such Trustee shall be
trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other
such Trustee and that no Trustee shall be responsible for
any act or failure to act on the part of any other Trustee
hereunder; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent
provided therein, such retiring Trustee shall with respect
to the Debt Securities of that or those series to which the
appointment of such successor Trustee relates have no
further responsibility for the exercise of rights and powers
or for the performance of the duties and obligations vested
in the Trustee under this Indenture, and each such successor
Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Debt Securities
of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or
any successor Trustee, such retiring Trustee shall duly
assign, transfer and deliver to such successor Trustee, to
the extent contemplated by such supplemental indenture, the
property and money held by such retiring Trustee hereunder
with respect to the Debt Securities of that or those series
to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee,
the Company shall execute any and all instruments for more
fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the
case may be.
(d) No successor Trustee shall accept its
appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible under this
Article.
(e) Upon acceptance of appointment by a successor
Trustee as provided in this Section, the Company shall
transmit notice of the succession of such Trustee hereunder
by mail, first class postage prepaid, to the
Securityholders, as their names and addresses appear upon
the Security Register. If the Company fails to transmit
such notice within ten days after acceptance of appointment
by the successor Trustee, the successor Trustee shall cause
such notice to be transmitted at the expense of the Company.
SECTION 7.12. Merger, Conversion, Consolidation
or Succession to Business. Any corporation into which the
Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to the corporate trust
business of the Trustee, shall be the successor of the
Trustee hereunder, provided that such corporation shall be
qualified under the provisions of Section 7.08 and eligible
under the provisions of Section 7.09, without the execution
or filing of any paper or any further act on the part of any
of the parties hereto, anything herein to the contrary
notwithstanding. In case any Debt Securities shall have
been authenticated, but not delivered, by the Trustee then
in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such
authentication and deliver the Debt Securities so
authenticated with the same effect as if such successor
Trustee had itself authenticated such Debt Securities.
SECTION 7.13. Preferential Collection of Claims
Against the Company. The Trustee shall comply with Section
311(a) of the Trust Indenture Act, excluding any creditor
relationship described in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed
shall be subject to Section 311(a) of the Trust Indenture
Act to the extent included therein.
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
SECTION 8.01. Evidence of Action by
Securityholders. Whenever in this Indenture it is provided
that the holders of a majority or specified percentage in
aggregate principal amount of the Debt Securities of a
particular series may take any action (including the making
of any demand or request, the giving of any notice, consent
or waiver or the taking of any other action), the fact that
at the time of taking any such action the holders of such
majority or specified percentage of that series have joined
therein may be evidenced by any instrument or any number of
instruments of similar tenor executed by such holders of
Debt Securities of that series in person or by agent or
proxy appointed in writing.
If the Company shall solicit from the holders of
any series of Debt Securities any request, demand,
authorization, direction, notice, consent, waiver or other
action, the Company may, at its option, as evidenced by an
Officers' Certificate, fix in advance a record date for such
series for the determination of holders entitled to give
such request, demand, authorization, direction, notice,
consent, waiver or other action, 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 action may be given before or after
the record date, but only the holders of record at the close
of business on the record date shall be deemed to be
Securityholders for the purposes of determining whether
Securityholders of the requisite proportion of Outstanding
Debt Securities of that series have authorized or agreed or
consented to such request, demand, authorization, direction,
notice, consent, waiver or other action, and for that
purpose the Outstanding Debt Securities of that series shall
be computed as of the record date; provided, however, that
no such authorization, agreement or consent by such
Securityholders on the record date shall be deemed effective
unless it shall become effective pursuant to the provisions
of this Indenture not later than six months after the record
date.
SECTION 8.02. Proof of Execution by
Securityholders. Subject to the provisions of Section 7.01,
proof of the execution of any instrument by a Securityholder
(such proof will not require notarization) or the agent or
proxy of such Securityholder and proof of the holding by any
Person of any of the Debt Securities shall be sufficient if
made in the following manner:
(a) The fact and date of the execution by any
such Person of any instrument may be proved in any
reasonable manner acceptable to the Trustee.
(b) The ownership of Debt Securities shall be
proved by the Security Register of such Debt Securities
or by a certificate of the Security Registrar thereof.
(c) The Trustee may require such additional proof
of any matter referred to in this Section as it shall
deem necessary.
SECTION 8.03. Who May be Deemed Owners. Prior to
the due presentment for registration of transfer of any Debt
Security, the Company, the Trustee, any paying agent and any
Security Registrar may deem and treat the Person in whose
name such Debt Security shall be registered upon the books
of the Company as the absolute owner of such Debt Security
(whether or not such Debt Security shall be overdue and
notwithstanding any notice of ownership or writing thereon
made by anyone other than the Security Registrar) for the
purpose of receiving payment of or on account of the
principal of, premium, if any, and (subject to Section 2.03)
interest on such Debt Security and for all other purposes;
and neither the Company nor the Trustee nor any paying agent
nor any Security Registrar shall be affected by any notice
to the contrary.
SECTION 8.04. Certain Debt Securities Owned by
Company Disregarded. In determining whether the holders of
the requisite aggregate principal amount of Debt Securities
of a particular series have concurred in any direction,
consent or waiver under this Indenture, the Debt Securities
of that series that are owned by the Company or any other
obligor on the Debt Securities of that series or by any
Person directly or indirectly controlling or controlled by
or under common control with the Company or any other
obligor on the Debt Securities of that series shall be
disregarded and deemed not to be outstanding for the purpose
of any such determination, except that for the purpose of
determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver, only Debt
Securities of such series that the Trustee actually knows
are so owned shall be so disregarded. The Debt Securities
so owned that have been pledged in good faith may be
regarded as outstanding for the purposes of this Section, if
the pledgee shall establish to the satisfaction of the
Trustee the pledgee's right so to act with respect to such
Debt Securities and that the pledgee is not a Person
directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company or any
such other obligor. In case of a dispute as to such right,
any decision by the Trustee taken upon the advice of counsel
shall be full protection to the Trustee.
SECTION 8.05. Actions Binding on Future
Securityholders. At any time prior to (but not after) the
evidencing to the Trustee, as provided in Section 8.01, of
the taking of any action by the holders of a majority or
specified percentage in aggregate principal amount of the
Debt Securities of a particular series in connection with
such action, any holder of a Debt Security of that series
that is shown by the evidence to be included in the Debt
Securities the holders of which have consented to such
action may, by filing written notice with the Trustee, and
upon proof of holding as provided in Section 8.02, revoke
such action so far as concerns such Debt Security. Except
as aforesaid, any such action taken by the holder of any
Debt Security shall be conclusive and binding upon such
holder and upon all future holders and owners of such Debt
Security, and of any Debt Security issued in exchange
therefor, on registration of transfer thereof or in place
thereof, irrespective of whether or not any notation in
regard thereto is made upon such Debt Security. Any action
taken by the holders of a majority or specified percentage
in aggregate principal amount of the Debt Securities of a
particular series in connection with such action shall be
conclusively binding upon the Company, the Trustee and the
holders of all the Debt Securities of that series.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without the
Consent of Securityholders. In addition to any supplemental
indenture otherwise authorized by this Indenture, the
Company and the Guarantor and the Trustee may from time to
time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions
of the Trust Indenture Act as then in effect), without the
consent of the Securityholders, for one or more of the
following purposes:
(a) to cure any ambiguity, defect or
inconsistency herein or in the Debt Securities of any
series;
(b) to comply with Article X;
(c) to provide for uncertificated Debt Securities
in addition to or in place of certificated Debt
Securities;
(d) to add to the covenants of the Company for
the benefit of the holders of all or any series of Debt
Securities (and if such covenants are to be for the
benefit of less than all series of Debt Securities,
stating that such covenants are expressly being
included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the
Company;
(e) to add to, delete from, or revise the
conditions, limitations and restrictions on the
authorized amount, terms or purposes of issue,
authentication and delivery of Debt Securities, as
herein set forth;
(f) to make any change that does not adversely
affect the rights of any Securityholder in any material
respect; or
(g) to provide for the issuance of and establish
the form and terms and conditions of the Debt
Securities of any series as provided in Section 2.01,
to establish the form of any certifications required to
be furnished pursuant to the terms of this Indenture or
any series of Debt Securities, or to add to the rights
of the holders of any series of Debt Securities.
The Trustee is hereby authorized to join with the
Company in the execution of any such supplemental indenture,
and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee
shall not be obligated to enter into any such supplemental
indenture that affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the
provisions of this Section may be executed by the Company
and the Trustee without the consent of the holders of any of
the Debt Securities at the time Outstanding notwithstanding
any of the provisions of Section 9.02.
SECTION 9.02. Supplemental Indentures With
Consent of Securityholders. With the consent (evidenced as
provided in Section 8.01) of the holders of not less than a
majority in aggregate principal amount of the Debt
Securities of each series affected by such supplemental
indenture or indentures at the time Outstanding, the
Company, when authorized by a Board Resolution, and the
Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act as then
in effect) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions
of this Indenture or of any supplemental indenture or of
modifying in any manner not covered by Section 9.01 the
rights of the holders of the Debt Securities of such series
under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the
holders of each Debt Security then Outstanding and affected
thereby, (i) extend the fixed maturity of any Debt
Securities of any series, or reduce the principal amount
thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce any premium payable upon the
redemption thereof, without the consent of the holder of
each Debt Security so affected or (ii) reduce the aforesaid
percentage of Debt Securities, the holders of which are
required to consent to any such supplemental indenture.
It shall not be necessary for the consent of the
Securityholders of any series affected thereby under this
Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such
consent shall approve the substance thereof.
SECTION 9.03. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture pursuant to
the provisions of this Article or of Section 10.01, this
Indenture shall, with respect to such series, 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 holders of Debt Securities
of the series affected thereby shall thereafter be
determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the
terms and conditions of any such supplemental indenture
shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 9.04. Debt Securities Affected by
Supplemental Indentures. Debt Securities of any series
affected by a supplemental indenture, authenticated and
delivered after the execution of such supplemental indenture
pursuant to the provisions of this Article or of Section
10.01, may bear a notation in form approved by the Company,
provided such form meets the requirements of any exchange
upon which such series may be listed, as to any matter
provided for in such supplemental indenture. If the Company
shall so determine, new Debt Securities of that series so
modified as to conform, in the opinion of the Board of
Directors of the Company, to any modification of this
Indenture contained in any such supplemental indenture may
be prepared by the Company, authenticated by the Trustee and
delivered in exchange for the Debt Securities of that series
then outstanding.
SECTION 9.05. Execution of Supplemental
Indentures. Upon the request of the Company, accompanied by
a Board Resolution authorizing the execution of any such
supplemental indenture, and upon the filing with the Trustee
of evidence of the consent of Securityholders required to
consent thereto 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. The Trustee, subject to the provisions of
Section 7.01, may receive an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed
pursuant to this Article is authorized or permitted by, and
conforms to, the terms of this Article and that it is proper
for the Trustee under the provisions of this Article to join
in the execution thereof.
Promptly after the execution by the Company and
the Trustee of any supplemental indenture pursuant to the
provisions of this Section, the Trustee shall transmit by
mail, first class postage prepaid, a notice, setting forth
in general terms the substance of such supplemental
indenture, to the Securityholders of all series affected
thereby as their names and addresses appear upon the Debt
Security Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental
indenture.
ARTICLE X
SUCCESSOR CORPORATION
SECTION 10.01. Company May Consolidate, Etc.
Nothing contained in this Indenture or in any of the Debt
Securities shall prevent any consolidation or merger of the
Company with or into any other corporation or corporations
(whether or not affiliated with the Company), or successive
consolidations or mergers in which the Company or its
successor or successors shall be a party or parties, or
shall prevent any sale, conveyance, transfer or other
disposition of the property of the Company or its successor
or successors as an entirety, or substantially as an
entirety, to any other corporation (whether or not
affiliated with the Company or its successor or successors)
authorized to acquire and operate the same; provided,
however, the Company hereby covenants and agrees that, upon
any such consolidation, merger, sale, conveyance, transfer
or other disposition, the due and punctual payment of the
principal of (premium, if any) and interest on all of the
Debt Securities of all series in accordance with the terms
of each series, according to their tenor and the due and
punctual performance and observance of all the covenants and
conditions of this Indenture with respect to each series or
established with respect to such series pursuant to Section
2.01 to be kept or performed by the Company, shall be
expressly assumed, by supplemental indenture (which shall
conform to the provisions of the Trust Indenture Act, as
then in effect) satisfactory in form to the Trustee executed
and delivered to the Trustee by the entity formed by such
consolidation, or into which the Company shall have been
merged, or by the entity which shall have acquired such
property.
SECTION 10.02. Successor Corporation Substituted.
(a) In case of any such consolidation, merger,
sale, conveyance, transfer or other disposition and upon the
assumption by the successor corporation, by supplemental
indenture, executed and delivered to the Trustee and
satisfactory in form to the Trustee, of the due and punctual
payment of the principal of, premium, if any, and interest
on all of the Debt Securities of all series Outstanding and
the due and punctual performance of all of the covenants and
conditions of this Indenture or established with respect to
each series of the Debt Securities pursuant to Section 2.01
to be performed by the Company with respect to each series,
such successor corporation shall succeed to and be
substituted for the Company with the same effect as if it
had been named as the Company herein.
(b) In case of any such consolidation, merger,
sale, conveyance, transfer or other disposition, such
changes in phraseology and form (but not in substance) may
be made in the Debt Securities thereafter to be issued as
may be appropriate.
(c) Nothing contained in this Indenture or in any
of the Debt Securities shall prevent the Company from
merging into itself or acquiring by purchase or otherwise
all or any part of the property of any other Person (whether
or not affiliated with the Company).
SECTION 10.03. Evidence of Consolidation, Etc. to
Trustee. The Trustee, subject to the provisions of Section
7.01, may receive an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale,
conveyance, transfer or other disposition, and any such
assumption, comply with the provisions of this Article.
ARTICLE XI
SATISFACTION AND DISCHARGE
SECTION 11.01. Satisfaction and Discharge of
Indenture. If at any time: (a) the Company shall have
delivered to the Trustee for cancellation all Debt
Securities of a series theretofore authenticated (other than
any Debt Securities that shall have been destroyed, lost or
stolen and that shall have been replaced or paid as provided
in Section 2.07) and Debt Securities for whose payment money
or Governmental Obligations have theretofore been deposited
in trust or segregated and held in trust by the Company(and
thereupon repaid to the Company or discharged from such
trust, as provided in Section 11.05); or (b) all such Debt
Securities of a particular series not theretofore delivered
to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable
within one year or are to be called for redemption within
one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and the Company shall
deposit or cause to be deposited with the Trustee as trust
funds the entire amount in moneys or Governmental
Obligations or a combination thereof, 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 at maturity or upon
redemption all Debt Securities of that series not
theretofore delivered to the Trustee for cancellation,
including principal (and premium, if any) and interest due
or to become due to such date of maturity or date fixed for
redemption, as the case may be, and if the Company shall
also pay or cause to be paid all other sums payable
hereunder with respect to such series by the Company; then
if the Company has delivered to the Trustee an Opinion of
Counsel based on the fact that (x) the Company has received
from, or there has been published by, the Internal Revenue
Service a ruling or (y) since the date hereof, there has
been a change in the applicable United States federal income
tax law, in either case to the effect that, and such opinion
shall confirm that, the holders of the Debt Securities of
such series will not recognize income, gain or loss for
United States federal income tax purposes as a result of
such deposit, defeasance and discharge and will be subject
to United States federal income tax on the same amount and
in the same manner and at the same times as would have been
the case if such deposit, defeasance and discharge had not
occurred, this Indenture shall thereupon cease to be of
further effect with respect to such series except for the
provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03
and 7.10, which shall survive until the date of maturity or
redemption date, as the case may be, and Sections 7.06 and
11.05, which shall survive to such date and thereafter, and
the Trustee, on demand of the Company and at the cost and
expense of the Company shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture
with respect to such series.
SECTION 11.02. Discharge of Obligations. If at
any time all Debt Securities of a particular series not
theretofore delivered to the Trustee for cancellation or
that have not become due and payable as described in Section
11.01 shall have been paid by the Company by depositing
irrevocably with the Trustee as trust funds moneys or an
amount of Governmental Obligations sufficient to pay at
maturity or upon redemption all such Debt Securities of that
series not theretofore delivered to the Trustee for
cancellation, including principal (and premium, if any) and
interest due or to become due to such date of maturity or
date fixed for redemption, as the case may be, and if the
Company shall also pay or cause to be paid all other sums
payable hereunder by the Company with respect to such
series, then after the date such moneys or Governmental
Obligations, as the case may be, are deposited with the
Trustee then, if the Company has delivered to the Trustee an
Opinion of Counsel based on the fact that (x) the Company
has received from, or there has been published by, the
Internal Revenue Service a ruling or (y) since the date
hereof, there has been a change in the applicable United
States federal income tax law, in either case to the effect
that, and such opinion shall confirm that, the holders of
the Debt Securities of such series will not recognize
income, gain or loss for United States federal income tax
purposes as a result of such deposit, defeasance and
discharge and will be subject to United States federal
income tax on the same amount and in the same manner and at
the same times, as would have been the case if such deposit,
defeasance and discharge had not occurred, the obligations
of the Company, under this Indenture with respect to such
series shall cease to be of further effect except for the
provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03,
7.06, 7.10 and 11.05 hereof which shall survive until such
Debt Securities shall mature and be paid and Sections 7.06
and 11.05, which shall survive to such date and thereafter.
SECTION 11.03. Deposited Moneys to be Held in
Trust. All moneys or Governmental Obligations deposited
with the Trustee pursuant to Section 11.02 shall be held in
trust and shall be available for payment as due, either
directly or through any paying agent (including the Company
acting as its own paying agent), to the holders of the
particular series of Debt Securities for the payment or
redemption of which such moneys or Governmental Obligations
have been deposited with the Trustee.
SECTION 11.04. Payment of Moneys Held by Paying
Agents. In connection with the satisfaction and discharge
of this Indenture, all moneys or Governmental Obligations
then held by any paying agent under the provisions of this
Indenture shall, upon demand of the Company, be paid to the
Trustee and thereupon such paying agent shall be released
from all further liability with respect to such moneys or
Governmental Obligations.
SECTION 11.05. Repayment to Company. Any moneys
or Governmental Obligations deposited with any paying agent
or the Trustee, or then held by the Company, in trust for
payment of principal of or premium or interest on the Debt
Securities of a particular series that are not applied but
remain unclaimed by the holders of such Debt Securities for
at least two years after the date upon which the principal
of (and premium, if any) or interest on such Debt Securities
shall have respectively become due and payable, shall be
repaid to the Company on May 31 of each year or (if then
held by the Company) shall be discharged from such trust;
and thereupon the paying agent and the Trustee shall be
released from all further liability with respect to such
moneys or Governmental Obligations, and the holder of any of
the Debt Securities entitled to receive such payment shall
thereafter, as an unsecured general creditor, look only to
the Company for the payment thereof.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 12.01. No Recourse. No recourse under or
upon any obligation, covenant or agreement of this
Indenture, or of any Debt Security, or for any claim based
thereon or otherwise in respect thereof, shall be had
against any incorporator, stockholder, officer or director,
past, present or future as such, of the Company or of any
predecessor or successor corporation, either directly or
through the Company or any such predecessor or 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
this Indenture and the obligations issued hereunder are
solely corporate obligations, and that no such personal
liability whatever shall attach to, or is or shall be
incurred by, the incorporators, stockholders, officers or
directors, as such, of the Company or of any predecessor or
successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or
by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Debt Securities
or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or
in equity or by constitution or statute, of, and any and all
such rights and claims against, every such incorporator,
stockholder, officer or director, as such, because of the
creation of the indebtedness hereby authorized, or under or
by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Debt Securities
or implied therefrom, are hereby expressly waived and
released as a condition of, and as consideration for, the
execution of this Indenture and the issuance of such Debt
Securities.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Effect on Successors and Assigns.
All the covenants, stipulations, promises and agreements in
this Indenture contained by or on behalf of the Company
shall bind its successors and assigns, whether so expressed
or not.
SECTION 13.02. Actions by Successor. 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 corresponding board,
committee or officer of any corporation that shall at the
time be the lawful successor of the Company.
SECTION 13.03. Surrender of Company Powers. The
Company by instrument in writing executed by authority of
2/3 (two-thirds) of its Board of Directors and delivered to
the Trustee may surrender any of the powers reserved to the
Company, and thereupon such power so surrendered shall
terminate both as to the Company and as to any successor
corporation.
SECTION 13.04. Notices. Except as otherwise
expressly provided herein, any notice or demand that by any
provision of this Indenture is required or permitted to be
given or served by the Trustee or by the holders of Debt
Securities to or on the Company may be given or served by
being deposited first class postage prepaid in a post-office
letterbox addressed (until another address is filed in
writing by the Company with the Trustee), as follows:
Kansas City Power & Light Company, 1201 Walnut, Kansas City,
MO 64106-2124, Attention: Treasurer. Any notice,
election, request or demand by the Company or any
Securityholder to or upon the Trustee shall be deemed to
have been sufficiently given or made, for all purposes, if
given or made in writing at the Corporate Trust Office of
the Trustee.
SECTION 13.05. Governing Law. This Indenture and
each Debt Security shall be deemed to be a contract made
under the internal laws of the State of New York, and for
all purposes shall be construed in accordance with the laws
of said State.
SECTION 13.06. Treatment of the Debt Securities
as Debt. It is intended that the Debt Securities will be
treated as indebtedness and not as equity for federal income
tax purposes. The provisions of this Indenture shall be
interpreted to further this intention.
SECTION 13.07. Compliance Certificates and
Opinions.
(a) Upon any application or demand by the Company
to the Trustee to take any action under any of the
provisions of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all
conditions precedent provided for in this Indenture relating
to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent have been complied
with, except that in the case of any such application or
demand as to which the furnishing of such documents is
specifically required by any provision of this Indenture
relating to such particular application or demand, no
additional certificate or opinion need be furnished.
(b) Each certificate or opinion provided for in
this Indenture and delivered to the Trustee with respect to
compliance with a condition or covenant in this Indenture
shall include (1) a statement that the Person making such
certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, 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 such Person, such condition or
covenant has been complied with.
SECTION 13.08. Payments on Business Days. Except
as provided pursuant to Section 2.01 pursuant to a Board
Resolution, and as set forth in an Officers' Certificate, or
established in one or more indentures supplemental to this
Indenture, in any case where the date of maturity of
interest or principal of any Debt Security or the date of
redemption of any Debt Security shall not be a Business Day,
then payment of interest or principal (and premium, if any)
may be made on the next succeeding Business Day with the
same force and effect as if made on the nominal date of
maturity or redemption, and no interest shall accrue for the
period after such nominal date.
SECTION 13.09. Conflict with Trust Indenture Act.
If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act,
such imposed duties shall control.
SECTION 13.10. 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 13.11. Separability. In case any one or
more of the provisions contained in this Indenture or in the
Debt Securities of any series shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect
any other provision of this Indenture or of such Debt
Securities, but this Indenture and such Debt Securities
shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or
therein.
SECTION 13.12. Assignment. The Company will have
the right at all times to assign any of its respective
rights or obligations under this Indenture to a direct or
indirect wholly-owned Subsidiary of the Company, provided
that, in the event of any such assignment, the Company will
remain liable for all such obligations. Subject to the
foregoing, this Indenture is binding upon and inures to the
benefit of the parties hereto and their respective
successors and assigns. This Indenture may not otherwise be
assigned by the parties thereto.
SECTION 13.13. Acknowledgment of Rights. The
Company acknowledges that, with respect to any Debt
Securities held by a Trust or a trustee of such Trust, if
the Property Trustee of such Trust fails to enforce its
rights under this Indenture as the holder of the series of
Debt Securities held as the assets of such Trust, any holder
of Preferred Securities may, after a period of 30 days has
elapsed from such holder's written request to such Property
Trustee to enforce such rights, institute legal proceedings
directly against the Company to enforce such Property
Trustee's rights under this Indenture without first
instituting any legal proceedings against such Property
Trustee or any other person or entity.
ARTICLE XIV
SUBORDINATION OF DEBT SECURITIES
SECTION 14.01. Subordination Terms. The payment
by the Company of the principal of, premium, if any, and
interest on any series of Debt Securities issued hereunder
shall be subordinated to the extent set forth in an
indenture supplemental hereto relating to such Debt
Securities.
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, and their respective
corporate seals to be hereunto affixed and attested, all as
of the day and year first above written.
KANSAS CITY POWER & LIGHT COMPANY
By: __________________________
Name:
Title:
Attest:
By: _________________________
Jeanie S. Latz
Secretary
THE FIRST NATIONAL BANK OF CHICAGO
Not in its individual capacity
but solely as Trustee
By: __________________________
Name:
Title:
Attest:
By: _________________________
Name:
Title:
STATE OF MISSOURI)
COUNTY OF JACKSON) SS
On the ___ day of __________, 199_, before me personally
came _______________ to me known, who, being by me duly
sworn, did depose and say that he is a __________ of KANSAS
CITY POWER & LIGHT COMPANY, one of the corporations
described in and which executed the above instrument; that
he knows the corporate seal of said corporation; that the
seal affixed to the said instrument is such corporate seal;
that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name
thereto by like authority.
NOTARY PUBLIC
[seal] Commission expires:
STATE OF ILLINOIS )
COUNTY OF COOK ) SS
On the ___ day of __________, 199_, before me personally
came __________________ to me known, who, being by me duly
sworn, did depose and say that he is a
_________________________ of THE FIRST NATIONAL BANK OF
CHICAGO, one of the corporations described in and which
executed the above instrument; that he knows the corporate
seal of said corporation; that the seal affixed to the said
instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and
that he signed his name thereto by like authority.
NOTARY PUBLIC
[seal] Commission expires: