Exhibit
1.1
Kansas
City Power & Light Company
$250,000,000
5.85%
Notes due 2017
UNDERWRITING
AGREEMENT
dated
May
30, 2007
Banc
of America Securities LLC
Wachovia
Capital Markets, LLC
Underwriting
Agreement
May
30,
2007
BANC
OF
AMERICA SECURITIES LLC
WACHOVIA
CAPITAL MARKETS, LLC
As
Representatives of the several Underwriters
c/o
BANC
OF AMERICA SECURITIES LLC
Hearst
Tower
214
North
Tryon Street
Charlotte,
NC 28255
and
c/o
Wachovia Capital Markets, LLC
One
Wachovia Center, DC-5
301
South
College Street
Charlotte,
NC 28288
Ladies
and Gentlemen:
Kansas
City Power & Light Company, a Missouri corporation (the
“
Company
”), proposes to issue and sell to the several
underwriters named in Schedule A (the “
Underwriters
”), acting
severally and not jointly, the respective amounts set forth in such Schedule
A
of $250,000,000 aggregate principal amount of the Company’s 5.85% Notes due 2017
(the “
Senior Notes
”). Banc of America Securities LLC
and Wachovia Capital Markets, LLC have agreed to act as representatives of
the
several Underwriters (in such capacity, the “
Representatives
”)
in connection with the offering and sale of the Senior Notes.
The
Senior Notes will be issued pursuant to a senior indenture (the “
Base
Indenture
”), dated as of May 1, 2007 between the Company and The Bank
of New York Trust Company, N.A. (successor to The Bank of New York) as trustee
(the “
Trustee
”). Certain terms of the Senior Notes
will be established pursuant to a supplemental indenture (the
“
Supplemental Indenture
”) in accordance with Article Thirteen
of the Base Indenture (together with the Base Indenture, the
“
Indenture
”). The Senior Notes will be issued in
book-entry form in the name of Cede & Co., as nominee of The Depository
Trust Company (the “
Depositary
”), pursuant to a Letter of
Representations, to be dated on or before the Closing Date (as defined in
Section 2(b) below) (the “
DTC Agreement
”), among the Company,
the Trustee and the Depositary.
The
Company has prepared and filed with the Securities and Exchange Commission
(the
“
Commission
”) a registration statement on Form S-3 (File No.
333-108215), to be used in connection with the public offering and sale of
debt
securities, including the Senior Notes, of the Company. Such
registration statement, including the financial statements, exhibits and
schedules
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thereto,
in the form in which it became effective under the Securities Act of 1933,
as
amended, and the rules and regulations promulgated thereunder (collectively,
the
“
Securities Act
”), including any required information deemed to
be a part of the registration statement at the time of effectiveness pursuant
to
Rule 430B under the Securities Act, is called the “
Registration
Statement
”. The term “
Base Prospectus
”
shall mean the base prospectus dated May 30, 2007
relating to the Senior
Notes. The term “
Preliminary Prospectus
” shall mean
any preliminary prospectus supplement relating to the Senior Notes, together
with the Base Prospectus, that is first filed with the Commission pursuant
to
Rule 424(b). The term “
Prospectus
” shall mean
the final prospectus supplement relating to the Senior Notes, together with
the
Base Prospectus, that is first filed pursuant to Rule 424(b) after the date
and
time that this Agreement is executed (the “
Execution Time
”) and
delivered by the parties hereto. Any reference herein to the
Registration Statement, any Preliminary Prospectus or the Prospectus shall
be
deemed to refer to and include the documents that are or are deemed to be
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Securities Act prior to 1:00 p.m. (Eastern time) on May 30, 2007 (the
“
Initial Sale Time
”). All references in this
Agreement to the Registration Statement, any Preliminary Prospectus, the
Prospectus, or any amendments or supplements to any of the foregoing, shall
include any copy thereof filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval System
(“
EDGAR
”).
All
references in this Agreement to financial statements and schedules and other
information which is “contained,” “included” or “stated” (or other references of
like import) in the Registration Statement, the Prospectus or any Preliminary
Prospectus shall be deemed to mean and include all such financial statements
and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement, the Prospectus or any Preliminary
Prospectus, as the case may be, prior to the Initial Sale Time; and all
references in this Agreement to amendments or supplements to the Registration
Statement, the Prospectus or any Preliminary Prospectus shall be deemed to
include the filing of any document under the Securities Exchange Act of 1934,
as
amended, and the rules and regulations promulgated thereunder (collectively,
the
“
Exchange Act
”), which is or is deemed to be incorporated by
reference in the Registration Statement, the Prospectus or any Preliminary
Prospectus, as the case may be, after the Initial Sale Time.
The
Company hereby confirms its agreements with the Underwriters as
follows:
SECTION
1.
Representations and Warranties
of the
Company
.
The
Company hereby represents, warrants and covenants to each Underwriter as of
the
date hereof, as of the Initial Sale Time and as of the Closing Date (as defined
herein) (in each case, a
“
Representation
Date
”), as
follows:
a)
Compliance
with Registration Requirements.
The Company meets the
requirements for use of Form S-3 under the Securities Act. The
Registration Statement has become effective under the Securities Act and no
stop
order suspending the effectiveness of the Registration Statement has been issued
under the Securities Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are contemplated
or threatened by the Commission, and any request on the part of the
Commission
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for
additional information has been complied with. In addition, the
Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended, and the rules and regulations promulgated thereunder (the
“
Trust Indenture Act
”).
At
the
respective times the Registration Statement and any post-effective amendments
thereto became effective and at each Representation Date, the Registration
Statement and any amendments thereto (i) complied and will comply in all
material respects with the requirements of the Securities Act and the Trust
Indenture Act, and (ii) did not and will not contain an untrue statement of
a
material fact or omit to state a material fact required to be stated therein
or
necessary to make the statements therein not misleading. Neither the Prospectus
nor any amendments or supplements thereto, at the time the Prospectus or any
such amendment or supplement was issued and at the Closing Date, included or
will include an untrue statement of a material fact or omitted or will omit
to
state a material fact necessary in order to make the statements therein, in
the
light of the circumstances under which they were made, not
misleading. Notwithstanding the foregoing, the representations and
warranties in this subsection shall not apply to (i) that part of the
Registration Statement which constitutes the Statement of Eligibility on Form
T-1 of the Trustee under the Trust Indenture Act or (ii) statements in or
omissions from the Registration Statement or any post-effective amendment or
the
Prospectus or any amendments or supplements thereto made in reliance upon and
in
conformity with information furnished to the Company in writing by any of the
Underwriters through the Representatives expressly for use therein, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in Section 6(b)
hereof.
Each
Preliminary Prospectus and the
Prospectus, at the time each was filed with the Commission, complied in all
material respects with the Securities Act, and each Preliminary Prospectus
and
the Prospectus delivered to the Underwriters for use in connection with the
offering of the Senior Notes will, at the time of such delivery, be identical
to
any electronically transmitted copies thereof filed with the Commission pursuant
to EDGAR, except to the extent permitted by Regulation S-T.
b)
Disclosure
Package.
The term “
Disclosure Package
” shall
mean (i) the Preliminary Prospectus dated May 30, 2007, (ii) each issuer free
writing prospectus as defined in Rule 433 of the Securities Act, if any,
identified in Annex I hereto (each, an “
Issuer Free Writing
Prospectus
”) and (iii) any other free writing prospectus that the
parties hereto shall hereafter expressly agree in writing to treat as part
of
the Disclosure Package. At the Initial Sale Time, the Disclosure
Package did not include any untrue statement of a material fact or omit to
state
any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading. The preceding sentence does not apply to statements in or
omissions from the Disclosure Package based upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by or on behalf of any Underwriter
consists of the information described as such in Section 6(b)
hereof.
c)
Incorporated
Documents
. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement, any Preliminary
Prospectus and the
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Prospectus
(i) at the time they were or hereafter are filed with the Commission,
complied or will comply in all material respects with the requirements of the
Exchange Act and (ii) when read together with the other information in the
Disclosure Package, at the Initial Sale Time, and when read together with the
other information in the Prospectus, at the date of the Prospectus and at the
Closing Date, did not or will not include an untrue statement of a material
fact
or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
d)
Not
an Ineligible Issuer
. (i) At the earliest time after the filing
of the Registration Statement that the Company or another offering participant
makes a
bona fide
offer (within the meaning of Rule 164(h)(2) of the
Securities Act) of the Senior Notes and (ii) as of the Execution Time (with
such
date being used as the determination date for purposes of this clause
(ii)), the Company was not or is not an Ineligible Issuer (as defined
in Rule 405 of the Securities Act), without taking account of any determination
by the Commission pursuant to Rule 405 of the Securities Act that it is not
necessary that the Company be considered an Ineligible Issuer.
e)
Issuer
Free Writing Prospectuses
. Each Issuer Free Writing Prospectus,
as of its issue date and at all subsequent times through the completion of
the
public offering and sale of Senior Notes or until any earlier date that the
Company notified or notifies the Representatives as described in the next
sentence, did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information contained in the
Registration Statement, any Preliminary Prospectus or the
Prospectus. If at any time following issuance of an Issuer Free
Writing Prospectus there occurred or occurs an event or development as a result
of which such Issuer Free Writing Prospectus conflicted or would conflict with
the information contained in the Registration Statement, any Preliminary
Prospectus or the Prospectus, the Company has promptly notified or will promptly
notify the Representatives and has promptly amended or supplemented or will
promptly amend or supplement, at its own expense, such Issuer Free Writing
Prospectus to eliminate or correct such conflict. The foregoing two sentences
do
not apply to statements in or omissions from any Issuer Free Writing Prospectus
based upon and in conformity with written information furnished to the Company
by any Underwriter through the Representatives specifically for use therein,
it
being understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in Section 6(b)
hereof. No electronic roadshow has been prepared or used by the
Company in connection with the offering of the Senior Notes.
f)
No
Applicable Registration or Other Similar Rights.
There are no
persons with registration or other similar rights to have any equity or debt
securities registered for sale under the Registration Statement or included
in
the offering contemplated by this Agreement, except for such rights as have
been
duly waived.
g)
Due
Incorporation and Qualification
. The Company has been duly
incorporated and is validly existing as a corporation in good standing under
the
laws of the state of Missouri with corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Disclosure Package and the Prospectus and to enter into and perform its
obligations under this Agreement, the Supplemental Indenture and the Senior
Notes and to perform its obligations under the Indenture; and the Company is
duly qualified as a foreign
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corporation
to transact business and is in good standing in each jurisdiction in which
such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify
and
be in good standing would not result in a Material Adverse Change (as defined
herein).
h)
Subsidiaries
. Each
wholly-owned subsidiary of the Company (each, a “
Subsidiary
”
and, together, the “
Subsidiaries
”) has been duly incorporated
and is validly existing as a corporation in good standing under the laws of
its
jurisdiction of incorporation, has corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Disclosure Package and the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction
in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure so
to
qualify or to be in good standing would not result in a Material Adverse Change;
except as otherwise disclosed in the Disclosure Package and the Prospectus,
all
of the issued and outstanding shares of capital stock owned directly or
indirectly by the Company of each such Subsidiary have been duly authorized
and
validly issued, are fully paid and non-assessable and are owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; and none of the
outstanding shares of capital stock of any Subsidiary was issued in violation
of
the preemptive or similar rights of any securityholder of such
Subsidiary. The Company has no significant subsidiaries, as
“significant subsidiaries” is defined in Rule 405 of Regulation C under the
Securities Act.
i)
Capitalization
. The
authorized, issued and outstanding capital stock of the Company is as set forth
in the Disclosure Package and the Prospectus in the column entitled “Actual”
under the caption “Capitalization.” The shares of issued and
outstanding capital stock of the Company have been duly authorized and validly
issued and are fully paid and non-assessable; none of the outstanding shares
of
capital stock of the Company was issued in violation of the preemptive or other
similar rights of any securityholder of the Company.
j)
Accountants
. The
accountants who issued their reports on the financial statements of the Company
included or incorporated by reference in the Disclosure Package and the
Prospectus are an independent registered public accounting firm within the
meaning of the Securities Act.
k)
Financial
Statements
. The financial statements and any supporting
schedules of the Company included or incorporated by reference in the
Registration Statement, the Disclosure Package and the Prospectus present
fairly, in all material respects, the financial position of the Company as
of
the dates indicated and the results of its operations and cash flows for the
periods specified; except as stated therein, said financial statements have
been
prepared in conformity with generally accepted accounting principles in the
United States (“
GAAP
”) applied on a consistent basis; and any
supporting schedules included in the Registration Statement present fairly,
in
all material respects, the information required to be stated
therein. The selected financial data and the summary financial
information included or incorporated by reference in the Disclosure Package
and
the Prospectus present fairly, in accordance with GAAP, the information shown
therein and have been compiled on a basis consistent with that of the
audited
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financial
statements included or incorporated by reference in the Registration Statement,
the Disclosure Package and the Prospectus.
l)
Authorization
of the Underwriting Agreement
. This Agreement has been duly
authorized, executed and delivered by the Company.
m)
Authorization
of the Indenture
. The Indenture has been duly qualified under
the Trust Indenture Act and has been duly authorized, executed and delivered
by
the Company and constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting enforcement of creditors’
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
n)
Authorization
of the Senior Notes.
The Senior Notes to be purchased by the
Underwriters from the Company are in the form contemplated by the Indenture,
have been duly authorized for issuance and sale pursuant to this Agreement
and
the Indenture and, at the Closing Date, will have been duly executed by the
Company and, when authenticated in the manner provided for in the Indenture
and
delivered against payment of the purchase price therefor, will constitute valid
and binding obligations of the Company, enforceable in accordance with their
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or affecting
enforcement of creditors’ rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether enforcement
is
considered in a proceeding in equity or at law) and will be entitled to the
benefits of the Indenture.
o)
Description
of the Senior Notes and the Indenture.
The Senior Notes and the
Indenture conform in all material respects to the descriptions thereof contained
in the Disclosure Package and the Prospectus.
p)
Material
Changes or Material Transactions
. Since the respective dates as
of which information is given in the Registration Statement, the Disclosure
Package and the Prospectus, except as may otherwise be stated therein or
contemplated thereby, (a) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business (a
“
Material Adverse Change
”) and (b) there have been no
transactions entered into by the Company and its subsidiaries considered as
one
enterprise other than those in the ordinary course of business which are
material with respect to the Company and its subsidiaries considered as one
enterprise.
q)
No
Defaults
. Neither the Company nor any of the Subsidiaries is in
violation of its Articles of Incorporation, charter or
by-laws. Except as would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Change, neither the
Company nor any of the Subsidiaries is in default in the performance or
observance of any obligation, agreement, covenant or condition contained in
any
contract, indenture, mortgage, loan agreement, note, lease or other instrument
to which the Company or any of the Subsidiaries is a
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party
or
by which it or any of them may be bound, or to which any of the property or
assets of the Company or any of the Subsidiaries is subject (each, an
“
Agreement or Instrument
” and, collectively, the
“
Agreements and Instruments
”). The execution and
delivery of this Agreement, the Supplemental Indenture and the Senior Notes
and
the consummation of the transactions contemplated herein, therein and in the
Indenture have been duly authorized by all necessary corporate action and do
not
and will not conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or encumbrance upon
any
property or assets of the Company or any Subsidiary pursuant to, any material
Agreements and Instruments, nor will such action result in any violation of
the
provisions of the Articles of Incorporation or by-laws, of the Company or any
of
the Subsidiaries or any applicable law, administrative regulation or
administrative or court order or decree.
r)
Regulatory
Approvals
. The Company has made all necessary filings and
obtained all necessary consents, orders or approvals in connection with the
issuance and sale of the Senior Notes or will have done so by the time the
Senior Notes shall be issued and sold, and no consent, approval, authorization,
order or decree of any other court or governmental agency or body is required
for the consummation by the Company of the transactions contemplated by this
Agreement, except such as may be required under state securities
laws.
s)
Legal
Proceedings; Contracts
. Except as may be set forth, incorporated or deemed
incorporated by reference in the Disclosure Package and the Prospectus, there
is
no action, suit or proceeding before or by any court or governmental agency
or
body, domestic or foreign, now pending, or, to the knowledge of the Company,
threatened against or affecting, the Company or its subsidiaries which would
reasonably be expected to result in any Material Adverse Change, or might
materially and adversely affect its properties or assets or would reasonably
be
expected to materially and adversely affect the consummation of the transactions
contemplated by this Agreement; and there are no contracts or documents which
are required to be filed as exhibits to the Registration Statement by the
Securities Act which have not been so filed.
t)
Franchises
. The
Company and the Subsidiaries hold, to the extent required, valid and subsisting
franchises, licenses and permits authorizing them to carry on the regulated
utility businesses in which they are engaged in the territories from which
substantially all of the Company’s consolidated gross operating revenue is
derived, except where the failure to hold such franchises, licenses and permits
would not result in a Material Adverse Change.
u)
Environmental
Laws
. Except as described, incorporated or deemed incorporated
by reference in the Disclosure Package and the Prospectus, and except as would
not, individually or in the aggregate, reasonably be expected to result in
a
Material Adverse Change, (A) neither the Company nor any of the
Subsidiaries is in violation of any federal, state, local or foreign statute,
law, rule, regulation, ordinance, code, policy or rule of common law or any
judicial or administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to pollution or
protection of human health, the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface strata)
or
wildlife, including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants, contaminants, wastes,
toxic substances,
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hazardous
substances, petroleum or petroleum products, asbestos-containing materials
or
mold (collectively, “
Hazardous Materials
”) or to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively,
“
Environmental Laws
”), (B) the Company and the
Subsidiaries have all permits, authorizations and approvals required under
any
applicable Environmental Laws and are each in compliance with their
requirements, (C) there are no pending or, to the knowledge of the Company,
threatened administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Company or any of the Subsidiaries and (D) there are no events or
circumstances that would reasonably be expected to form the basis of an order
for clean-up or remediation, or an action, suit or proceeding by any private
party or governmental body or agency, against or affecting the Company or any
of
the Subsidiaries relating to Hazardous Materials or any Environmental
Laws.
v)
Investment
Company Act
. The Company is not and, upon the issuance and sale
of the Senior Notes as contemplated herein and the application of the net
proceeds thereof as described in the Disclosure Package and the Prospectus,
will
not be, required to register as an “investment company” under the Investment
Company Act of 1940, as amended.
w)
ERISA
. The
Company and the Subsidiaries are in compliance in all material respects with
all
presently applicable provisions of the Employee Retirement Income Security
Act
of 1974, as amended, including the regulations and published interpretations
thereunder (“
ERISA
”); no “reportable event” (as defined in
ERISA) has occurred with respect to any “pension plan” (as defined in ERISA) for
which the Company or any of the Subsidiaries would have any material liability;
the Company and the Subsidiaries have not incurred and do not expect to incur
any material liability under (i) Title IV of ERISA with respect to the
termination of, or withdrawal from, any “pension plan” or (ii) Section 412
or 4971 of the Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder (the
“
Code
”); and each “pension plan” for which the Company or any
of the Subsidiaries would have any liability that is intended to be qualified
under Section 401(a) of the Code is so qualified in all material respects and
nothing has occurred, whether by action or by failure to act, which would cause
the loss of such qualification.
x)
Insurance
. The
Company and each of the Subsidiaries carry, or are covered by, insurance in
such
amounts and covering such risks as is adequate for the conduct of their
respective businesses and the value of their respective properties.
y)
Taxes
. The
Company and each of the Subsidiaries has filed all federal, state and local
income and franchise tax returns required to be filed through the date hereof
and has paid all taxes due thereon, except such as are being contested in good
faith by appropriate proceedings, and no tax deficiency has been determined
adversely to the Company or any of the Subsidiaries which has had, nor does
the
Company have any knowledge of any tax deficiency which, if determined adversely
to the Company or any of the Subsidiaries, would reasonably be expected to
result in, a Material Adverse Change.
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z)
Internal
Controls
. Each of the Company and the Subsidiaries (A) make
and keep accurate books and records and (B) maintain internal accounting
controls which provide reasonable assurance that (i) transactions are
executed in accordance with management’s authorization, (ii) transactions
are recorded as necessary to permit preparation of its financial statements
and
to maintain accountability for its assets, (iii) access to its assets is
permitted only in accordance with management’s authorization and (iv) the
reported accountability for its assets is compared with existing assets at
reasonable intervals. Except as described in the Disclosure Package
and the Prospectus, since the end of the Company’s most recent audited fiscal
year, there has been (I) no material weakness in the Company’s internal
control over financial reporting (whether or not remediated) and (II) no
change in the Company’s internal control over financial reporting that has
materially affected, or is reasonably likely to materially affect, the Company’s
internal control over financial reporting.
aa)
Sarbanes-Oxley
. The
Company is in compliance, in all material respects, with all applicable
provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith, including Section 402 related to
loans, and the requirement that the Company and its consolidated subsidiaries
maintain the following, among other, controls and procedures:
(i) a
system of “internal accounting controls” as contemplated in
Section 13(b)(2)(B) of the Exchange Act;
(ii) “disclosure
controls and procedures” as such term is defined in Rule 13a-15(e) under
the Exchange Act; and
(iii) “internal
control over financial reporting” as such term is defined in Rule 13a-15(f)
under the Exchange Act.
bb)
Pending
Proceedings and Examinations
. The Registration Statement is not
the subject of a pending proceeding or examination under Section 8(d) or
8(e) of the Securities Act, and the Company is not the subject of a pending
proceeding under Section 8A of the Securities Act in connection with the
offering of the Senior Notes.
cc)
Ratings
. The
Senior Notes are rated A3 (Stable Outlook) by Moody’s Investors Services and BBB
(CreditWatch with Negative Implications) by Standard & Poor’s Ratings
Group.
Any
certificate signed by any director or officer of the Company and delivered
to
the Underwriters or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to the Underwriters as to the matters
covered thereby on the date of such certificate and, unless subsequently amended
or supplemented, at each Representation Date subsequent thereto.
SECTION
2.
Purchase, Sale and Delivery of the
Senior
Notes
.
a)
The
Senior Notes
.
The Company agrees to issue and sell to
the several Underwriters, severally and not jointly, all of the Senior Notes
upon the terms herein set forth.
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On
the
basis of the representations, warranties and agreements herein contained, and
upon the terms but subject to the conditions herein set forth, the Underwriters
agree, severally and not jointly, to purchase from the Company the aggregate
principal amount of Senior Notes set forth opposite their names on Schedule
A,
plus any additional principal amount of Senior Notes which such Underwriter
may
become obligated to purchase pursuant to Section 8 hereof, at a purchase price
of 99.182% of the principal amount of the Senior Notes, payable on the Closing
Date.
b)
The
Closing Date
.
Delivery of certificates for the Senior
Notes in global form to be purchased by the Underwriters and payment therefor
shall be made at the offices of Davis Polk & Wardwell, 1600 El Camino Real,
Menlo Park, California (or such other place as may be agreed to by the Company
and the Representatives) at 9:00 a.m., New York City time, on June 4, 2007,
or
such other time and date as the Underwriters and the Company shall mutually
agree (the time and date of such closing are called the “
Closing
Date
”).
c)
Public
Offering of the Senior Notes.
The Representatives hereby advise
the Company that the Underwriters intend to offer for sale to the public, as
described in the Disclosure Package and the Prospectus, their respective
portions of the Senior Notes as soon after this Agreement has been executed
as
the Representatives, in their sole judgment, have determined is advisable and
practicable.
d)
Payment
for the Senior Notes.
Payment for the Senior Notes shall be made
at the Closing Date by wire transfer of immediately available funds to the
order
of the Company.
It
is
understood that the Representatives have been authorized, for their own accounts
and for the accounts of the several Underwriters, to accept delivery of and
receipt for, and make payment of the purchase price for, the Senior Notes that
the Underwriters have agreed to purchase. The Representatives may
(but shall not be obligated to) make payment for any Senior Notes to be
purchased by any Underwriter whose funds shall not have been received by the
Representatives by the Closing Date for the account of such Underwriter, but
any
such payment shall not relieve such Underwriter from any of its obligations
under this Agreement.
e)
Delivery
of the Senior Notes.
The Company shall deliver, or cause to be
delivered, to the Representatives for the accounts of the several Underwriters
through the facilities of the Depositary certificates for the Senior Notes
at
the Closing Date, against the irrevocable release of a wire transfer of
immediately available funds for the amount of the purchase price
therefor. The certificates for the Senior Notes shall be definitive
global certificates in book entry form for clearance through the
Depositary. Time shall be of the essence, and delivery at the time
and place specified in this Agreement is a further condition to the obligations
of the Underwriters.
SECTION
3.
Covenants
o
f the
Company
.
The
Company covenants and agrees with each Underwriter as follows:
a)
Compliance
with Securities Regulations and Commission
Requests
.
The Company, subject to Section 3(b)
hereof, will comply with the requirements of Rule 430B under
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the
Securities Act, and will promptly notify the Representatives, and confirm the
notice in writing, of (i) the effectiveness during the Prospectus Delivery
Period (as defined below) of any post-effective amendment to the Registration
Statement or the filing of any supplement or amendment to any Preliminary
Prospectus or the Prospectus, (ii) the receipt of any comments from the
Commission during the Prospectus Delivery Period, (iii) any request by the
Commission for any amendment to the Registration Statement or any amendment
or
supplement to any Preliminary Prospectus or the Prospectus or for additional
information, and (iv) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any Preliminary Prospectus or the
Prospectus, or of the suspension of the qualification of the Senior Notes for
offering or sale in any jurisdiction, or of the initiation or threatening of
any
proceedings for any of such purposes. The Company will promptly
effect the filings necessary pursuant to Rule 424 and will take such steps
as it deems necessary to ascertain promptly whether any Preliminary Prospectus
and the Prospectus transmitted for filing under Rule 424 was received for
filing by the Commission and, in the event that it was not, it will promptly
file such document. The Company will use every reasonable effort to
prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
b)
Representatives’
Review of Proposed Amendments and Supplements
.
During
the period beginning on the date of this Agreement and ending on the later
of
the Closing Date or such date, as in the opinion of counsel for the
Underwriters, a prospectus relating to the Senior Notes is no longer required
by
law to be delivered in connection with sales of the Senior Notes by an
Underwriter or dealer, including in circumstances where such requirement may
be
satisfied pursuant to Rule 172 under the Securities Act (the “
Prospectus
Delivery Period
”), prior to amending or supplementing the Registration
Statement, the Disclosure Package or the Prospectus (including any amendment
or
supplement through incorporation by reference of any report filed under the
Exchange Act), the Company shall furnish, within a reasonable time prior to
filing such amendment or supplement, to the Representatives for review a copy
of
each such proposed amendment or supplement, and the Company shall not file
or
use any such proposed amendment or supplement (except for any amendment or
supplement filed under the Exchange Act after the Closing Date) to which the
Representatives or counsel for the Underwriters shall reasonably
object.
c)
Delivery
of Registration Statements
.
If requested, the Company
will furnish or deliver to the Representatives and counsel for the Underwriters,
without charge, copies of the Registration Statement as originally filed and
of
each amendment thereto (including exhibits filed therewith or incorporated
by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and copies of all consents and certificates of experts,
and
will also deliver to the Representatives, without charge, a conformed copy
of
the Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the Underwriters. The Registration
Statement and each amendment thereto furnished to the Underwriters will be
identical to any electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation
S-T.
d)
Delivery
of Prospectuses
.
The Company will deliver to each
Underwriter, without charge, as many copies of each Preliminary Prospectus
as
such Underwriter may
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reasonably
request, and the Company hereby consents to the use of such copies for purposes
permitted by the Securities Act. The Company will furnish to each
Underwriter, without charge, during the Prospectus Delivery Period, such number
of copies of the Prospectus as such Underwriter may reasonably
request. Each Preliminary Prospectus and the Prospectus and any
amendments or supplements thereto furnished to the Underwriters will be
identical to any electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation
S-T.
e)
Continued
Compliance with Securities Laws
. The Company will comply with
the Securities Act and the Exchange Act so as to permit the completion of the
distribution of the Senior Notes as contemplated in this Agreement and the
Prospectus. If, at any time during the Prospectus Delivery Period,
any event shall occur or condition shall exist as a result of which it is
necessary to amend the Registration Statement in order that the Registration
Statement will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or to amend or supplement the Disclosure
Package or the Prospectus in order that the Disclosure Package or the
Prospectus, as the case may be, will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing at the Initial
Sale Time or at the time it is delivered or conveyed to a purchaser, not
misleading, or if it shall be necessary at any such time to amend the
Registration Statement or amend or supplement the Disclosure Package or the
Prospectus in order to comply with the requirements of the Securities Act,
the
Company will (1) notify the Representatives of any such event, development
or
condition, (2) promptly prepare and file with the Commission, subject to Section
3(b) hereof, such amendment or supplement as may be necessary to correct such
statement or omission or to make the Registration Statement, the Disclosure
Package or the Prospectus comply with such requirements, and (3) the Company
will furnish to the Underwriters, without charge, such number of copies of
such
amendment or supplement to the Disclosure Package or the Prospectus as the
Underwriters may reasonably request.
f)
Blue
Sky Compliance.
The Company shall cooperate with the
Representatives and counsel for the Underwriters to qualify or register the
Senior Notes for sale under (or obtain exemptions from the application of)
the
state securities or blue sky laws of those jurisdictions designated by the
Representatives, shall comply with such laws and shall continue such
qualifications, registrations and exemptions in effect so long as required
for
the distribution of the Senior Notes. The Company shall not be
required to qualify to transact business or to take any action that would
subject it to general service of process in any such jurisdiction where it
is
not presently qualified or where it would be subject to taxation as a foreign
business. The Company will advise the Representatives promptly of the
suspension of the qualification or registration of (or any such exemption
relating to) the Senior Notes for offering, sale or trading in any jurisdiction
or any initiation or threat of any proceeding for any such purpose, and in
the
event of the issuance of any order suspending such qualification, registration
or exemption, the Company shall use every reasonable effort to obtain the
withdrawal thereof at the earliest possible moment.
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g)
Use
of Proceeds.
The Company shall apply the net proceeds from the
sale of the Senior Notes sold by it in the manner described under the caption
“Use of Proceeds” in each of the Disclosure Package and the
Prospectus.
h)
Depositary.
The
Company will cooperate with the Underwriters and use every reasonable effort
to
permit the Senior Notes to be eligible for clearance and settlement through
the
facilities of the Depositary.
i)
Periodic
Reporting Obligations.
During the Prospectus Delivery Period and
subject to Section 3(b) hereof, the Company shall file, on a timely basis,
with
the Commission all reports and documents required to be filed under the Exchange
Act.
j)
Agreement
Not to Offer or Sell Additional Securities.
During the period
commencing on the date hereof and ending on the Closing Date, the Company will
not, without the prior written consent of the Representatives (which consent
may
be withheld at the sole discretion of the Representatives), directly or
indirectly, sell, offer, contract or grant any option to sell, transfer or
establish an open “put equivalent position” within the meaning of Rule 16a-1(h)
under the Exchange Act, or otherwise dispose of or transfer, or announce the
offering of, or file any registration statement under the Securities Act in
respect of, any debt securities of the Company similar to the Senior Notes
or
securities exchangeable for or convertible into debt securities similar to
the
Senior Notes (other than as contemplated by this Agreement with respect to
the
Senior Notes).
k)
Final
Term Sheet
. The Company will prepare a final term sheet
containing only a description of the Senior Notes, in substantially the form
attached hereto as Exhibit B, and will file such term sheet pursuant to Rule
433(d) under the Securities Act within the time required by such rule (such
term
sheet, the “
Final Term Sheet
”). The Final Term Sheet
is an Issuer Free Writing Prospectus for purposes of this
Agreement.
l)
Permitted
Free Writing Prospectuses
. The Company represents that it has
not made, and agrees that, unless it obtains the prior written consent of the
Representatives, and each Underwriter, severally and not jointly, represents
that it has not made, and agrees with the Company that, unless it obtains the
prior written consent of the Company, it will not make, any offer relating
to
the Senior Notes that would constitute an “issuer free writing prospectus” or
that would otherwise constitute a “free writing prospectus” (as those terms are
defined in Rule 405 of the Securities Act) required to be filed by the Company
with the Commission or retained by the Company under Rule 433 of the Securities
Act; provided that the prior written consent of the Representatives shall be
deemed to have been given in respect of the Issuer Free Writing Prospectuses
included in Annex I hereto. Any such free writing prospectus
consented to by the Representatives is hereinafter referred to as a
“
Permitted Free Writing Prospectus
”. The Company
agrees that (i) it has treated and will treat, as the case may be, each
Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and
(ii)
has complied and will comply, as the case may be, with the requirements of
Rules
164 and 433 of the Securities Act applicable to any Permitted Free Writing
Prospectus, including in respect of timely filing with the Commission, legending
and record keeping.
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m)
Filing
Fees
. The Company agrees to pay the required Commission filing
fees relating to the Senior Notes within the time required by
Rule 456(b)(1) of the Securities Act without regard to the proviso therein
and otherwise in accordance with Rules 456(b) and 457(r) of the Securities
Act.
n)
No
Manipulation of Price
.
The Company will not take,
directly or indirectly, any action designed to cause or result in, or that
has
constituted or might reasonably be expected to constitute, under the Exchange
Act or otherwise, the stabilization or manipulation of the price of any
securities of the Company to facilitate the sale or resale of the Senior
Notes.
o)
Earning
Statement
. The Company will make generally available to the
Company’s security holders and to the Representatives as soon as practicable an
earning statement covering a period of at least twelve months beginning with
the
first fiscal quarter of the Company occurring after the date of this Agreement
that will satisfy the provisions of Section 11(a) of the Securities
Act.
The
Representatives, on behalf of the several Underwriters, may, in their sole
discretion, waive in writing the performance by the Company of any one or more
of the foregoing covenants or extend the time for their
performance.
SECTION
4.
Payment of Expenses
.
The Company agrees
to pay all costs, fees and expenses incurred in connection with the performance
of its obligations hereunder and in connection with the transactions
contemplated hereby, including without limitation (i) all expenses incident
to
the issuance and delivery of the Senior Notes (including all printing and
engraving costs), (ii) all necessary issue, transfer and other stamp taxes
in
connection with the issuance and sale of the Senior Notes to the Underwriters,
(iii) all fees and expenses of the Company’s counsel, independent public or
certified public accountants and other advisors to the Company, (iv) all costs
and expenses incurred in connection with the preparation, printing, filing,
shipping and distribution of the Registration Statement (including financial
statements, exhibits, schedules, consents and certificates of experts), each
Issuer Free Writing Prospectus, each Preliminary Prospectus and the Prospectus,
and all amendments and supplements thereto, and this Agreement, the Indenture,
the DTC Agreement and the Senior Notes, (v) all filing fees, reasonable
attorneys’ fees and expenses incurred by the Company or the Underwriters in
connection with qualifying or registering (or obtaining exemptions from the
qualification or registration of) all or any part of the Senior Notes for offer
and sale under the state securities or blue sky laws, and, if requested by
the
Representatives, preparing a “Blue Sky Survey” or memorandum, and any
supplements thereto, advising the Underwriters of such qualifications,
registrations and exemptions, (vi) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review, if any, by the NASD of the terms of the sale of the Senior
Notes, (vii) the fees and expenses of the Trustee, including the reasonable
fees
and disbursements of counsel for the Trustee in connection with the Indenture
and the Senior Notes, (viii) any fees payable in connection with the rating
of
the Senior Notes with the ratings agencies, (ix) all fees and expenses
(including reasonable fees and expenses of counsel) of the Company in connection
with approval of the Senior Notes by the Depositary for “book-entry” transfer,
(x) all other fees, costs and expenses referred to in Item 14 of Part II of
the
Registration Statement, (xi) all reasonable out-of-pocket expenses by
the
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Representatives
with respect to any roadshow, including expenses relating to slide production,
internet roadshow taping and travel, and (xii) all other fees, costs and
expenses incurred in connection with the performance of its obligations
hereunder for which provision is not otherwise made in this Section
4. Except as provided in this Section 4, Section 6 and Section 7
hereof, the Underwriters shall pay their own expenses, including the fees and
disbursements of their counsel.
Section
5.
Conditions of the Obligations of the
Underwriters
.
The obligations of the several Underwriters to
purchase and pay for the Senior Notes as provided herein on the Closing Date
shall be subject to the accuracy of the representations and warranties on the
part of the Company set forth in Section 1 hereof as of each Representation
Date
as though then made and to the timely performance by the Company of its
covenants and other obligations hereunder, and to each of the following
additional conditions:
a)
Effectiveness
of Registration Statement
. The Registration Statement shall
remain effective under the Securities Act and no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
Securities Act and no proceedings for that purpose shall have been instituted
or
be pending or threatened by the Commission, any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters.
b)
Filings
under Rule 424 and Rule 433.
For the period from the Execution Time to the
Closing Date:
(i) the
Company shall have filed any Preliminary Prospectus not previously filed and
the
Prospectus with the Commission (including the information required by Rule
430B
under the Securities Act) in the manner and within the time period required
by
Rule 424(b) under the Securities Act; or the Company shall have filed a
post-effective amendment to the Registration Statement containing the
information required by such Rule 430B, and such post-effective amendment shall
have become effective; and
(ii) the
Final Term Sheet, and any other material required to be filed by the Company
pursuant to Rule 433(d) under the Securities Act, shall have been filed with
the
Commission within the applicable time periods prescribed for such filings under
such Rule 433.
c)
Accountants’
Comfort Letter
.
On the date hereof, the Representatives
shall have received from Deloitte & Touche LLP, independent public or
certified public accountants for the Company, a letter dated the date hereof
addressed to the Underwriters, in form and substance satisfactory to the
Representatives with respect to the audited and unaudited consolidated financial
statements and certain financial information of the Company included or
incorporated in the Registration Statement, any Preliminary Prospectus and
the
Prospectus.
d)
Bring-down
Comfort Letter
. On the Closing Date, the Representatives shall
have received from Deloitte & Touche LLP, independent public or certified
public accountants for the Company, a letter dated such date, in form and
substance satisfactory to the Representatives, to
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the
effect that they reaffirm the statements made in the letter furnished by them
pursuant to subsection (c) of this Section 5, except that the specified date
referred to therein for the carrying out of procedures shall be no more than
three business days prior to the Closing Date.
e)
No
Material Adverse Change or Ratings Agency Change
.
For
the period from the Execution Time to the Closing Date:
(i) there
shall not have occurred any Material Adverse Change, except as reflected in
or
contemplated by the Disclosure Package; and
(ii) there
shall not have occurred any downgrading, nor shall any notice have been given
of
any intended or potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change, in the rating
accorded any securities of the Company or any of the Subsidiaries by any
“nationally recognized statistical rating organization” as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act.
f)
Opinion
of Counsel
for
the Company
.
On the
Closing Date, the Representatives shall have received the favorable opinions
of
(i) Sidley Austin LLP, counsel for the Company, dated as of such Closing Date,
the form of which is attached as Exhibit A-1, and (ii) Mark English, the General
Counsel of the Parent, dated as of such Closing Date, the form of which is
attached as Exhibit A-2.
g)
Opinion
of Counsel for the Underwriters
.
On the Closing Date,
the Representatives shall have received the favorable opinion of Davis Polk
& Wardwell, counsel for the Underwriters, dated as of such Closing Date,
with respect to such matters as may be reasonably requested by the
Underwriters.
h)
Officers’
Certificate
.
On the Closing Date, the Representatives
shall have received a written certificate executed by the Chief Executive
Officer, President or a Vice President of the Company and the Chief Financial
Officer or Chief Accounting Officer of the Company, dated as of such Closing
Date, to the effect that, to the best of their knowledge after reasonable
investigation:
(i) the
Company has received no stop order suspending the effectiveness of the
Registration Statement, and no proceedings for such purpose have been instituted
or threatened by the Commission;
(ii) there
has not occurred any downgrading, and the Company has not received any notice
of
any intended or potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change, in the rating
accorded any securities of the Company or any of the Subsidiaries by any
“nationally recognized statistical rating organization” as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act;
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(iii) for
the period from the Execution Time to the Closing Date, there has not occurred
any Material Adverse Change;
(iv) the
representations, warranties and covenants of the Company set forth in Section
1
of this Agreement are true and correct with the same force and effect as though
expressly made on and as of such Closing Date; and
(v) the
Company has complied with all the agreements hereunder and satisfied all the
conditions on its part to be performed or satisfied hereunder at or prior to
such Closing Date.
i)
Additional
Documents.
On or before the Closing Date, the
Representatives and counsel for the Underwriters shall have received such
information, documents and opinions as they may reasonably require for the
purposes of enabling them to pass upon the issuance and sale of the Senior
Notes
as contemplated herein, or in order to evidence the accuracy of any of the
representations and warranties, or the satisfaction of any of the conditions
or
agreements, herein contained.
If
any
condition specified in this Section 5 is not satisfied when and as required
to
be satisfied, this Agreement may be terminated by the Representatives by notice
to the Company at any time on or prior to the Closing Date, which termination
shall be without liability on the part of any party to any other party, except
that Section 4, Section 6, Section 7 and Section 15 hereof shall at
all times be effective and shall survive such termination.
Section
6.
Indemnification
.
(a)
Indemnification
of the Underwriters
. The Company agrees to indemnify and hold
harmless each Underwriter, its directors, officers, employees and agents, and
each person, if any, who controls any Underwriter within the meaning of the
Securities Act and the Exchange Act against any loss, claim, damage, liability
or expense, as incurred, to which such Underwriter, director, officer, employee,
agent or controlling person may become subject, insofar as such loss, claim,
damage, liability or expense (or actions in respect thereof as contemplated
below) arises out of or is based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, or any
amendment or supplement thereto, including any information deemed to be a part
thereof pursuant to Rule 430B under the Securities Act, or the omission or
alleged omission therefrom of a material fact required to be stated therein
or
necessary to make the statements therein not misleading; or (ii) any untrue
statement or alleged untrue statement of a material fact included in any
Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus
(or
any amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
and to reimburse each Underwriter, its officers, directors, employees, agents
and controlling persons for any and all expenses (including the reasonable
fees
and disbursements of counsel chosen by the Representatives) as such expenses
are
reasonably incurred by such Underwriter, officer, director, employee, agent
or
controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action; provided,
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however,
that the foregoing indemnity agreement shall not apply to any loss, claim,
damage, liability or expense to the extent, but only to the extent, arising
out
of or based upon any untrue statement or alleged untrue statement or omission
or
alleged omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives expressly for use in the Registration Statement, any Preliminary
Prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any
amendment or supplement thereto). The indemnity agreement set forth
in this Section 6(a) shall be in addition to any liabilities that the Company
may otherwise have.
(b)
Indemnification
of the Company, its Directors and Officers
. Each Underwriter
agrees, severally and not jointly, to indemnify and hold harmless the Company,
its directors, its officers who signed the Registration Statement and each
person, if any, who controls the Company within the meaning of the Securities
Act or the Exchange Act, against any loss, claim, damage, liability or expense,
as incurred, to which the Company, or any such director, officer or controlling
person may become subject, insofar as such loss, claim, damage, liability or
expense (or actions in respect thereof as contemplated below) arises out of
or
is based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, or any amendment or supplement
thereto, or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein not
misleading; or (ii) any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any Issuer Free Writing
Prospectus or the Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in order
to
make the statements therein, in the light of the circumstances under which
they
were made, not misleading, in each case to the extent, and only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement, such Preliminary Prospectus,
such Issuer Free Writing Prospectus or the Prospectus (or any amendment or
supplement thereto), in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through the Representatives
expressly for use therein; and to reimburse the Company, such director, officer
or controlling person for any and all expenses (including the reasonable fees
and disbursements of counsel chosen by the Company) as such expenses are
reasonably incurred by the Company, such director, officer or controlling person
in connection with investigating, defending, settling, compromising or paying
any such loss, claim, damage, liability, expense or action. The
Company hereby acknowledges that the only information that the Underwriters
have
furnished to the Company expressly for use in the Registration Statement, any
Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus
(or
any amendment or supplement thereto) are the statements set forth in the third
paragraph and seventh paragraph under the caption “Underwriting” in the
Prospectus. The indemnity agreement set forth in this Section 6(b)
shall be in addition to any liabilities that each Underwriter may otherwise
have.
(c)
Notifications
and Other Indemnification Procedures
. Promptly after receipt by
an indemnified party under this Section 6 of notice of the commencement of
any
action, such indemnified party will, if a claim in respect thereof is to be
made
against an indemnifying party under this Section 6, notify the indemnifying
party in writing of the commencement thereof; but the failure to so notify
the
indemnifying party (i) will not relieve it from liability under paragraph (a)
or
(b) above unless and to the extent it did not otherwise learn of such action
and
such failure
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results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
liability other than the indemnification obligation provided in paragraph (a)
or
(b) above. In case any such action is brought against any indemnified
party and such indemnified party seeks or intends to seek indemnity from an
indemnifying party, the indemnifying party will be entitled to participate
in,
and, to the extent that it shall elect, jointly with all other indemnifying
parties similarly notified, by written notice delivered to the indemnified
party
promptly after receiving the aforesaid notice from such indemnified party,
to
assume the defense thereof with counsel satisfactory to such indemnified party;
provided
, however, such indemnified party shall have the right to
employ its own counsel in any such action and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense
of
such indemnified party, unless: (i) the employment of such
counsel has been specifically authorized by the indemnifying party;
(ii) the indemnifying party has failed promptly to assume the defense and
employ counsel reasonably satisfactory to the indemnified party; or
(iii) the named parties to any such action (including any impleaded
parties) include both such indemnified party and the indemnifying party or
any
affiliate of the indemnifying party, and such indemnified party shall have
reasonably concluded that either (x) there may be one or more legal
defenses available to it which are different from or additional to those
available to the indemnifying party or such affiliate of the indemnifying party
or (y) a conflict may exist between such indemnified party and the
indemnifying party or such affiliate of the indemnifying party (it being
understood, however, that the indemnifying party shall not, in connection with
any one such action or separate but substantially similar or related actions
in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to a single firm of local counsel) for all such
indemnified parties, which firm shall be designated in writing by (i) the
Representatives, in the case of indemnification pursuant to Section 6(a) hereof,
or (ii) the Company, in the case of indemnification pursuant to Section 6(b)
hereof, and that all such reasonable fees and expenses shall be reimbursed
as
they are incurred).
(d)
Settlements
. The
indemnifying party under this Section 6 shall not be liable for any settlement
of any proceeding effected without its written consent, but if settled with
such
consent or if there is a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party against any loss, claim, damage,
liability or expense by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by Section
6(c) hereof, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 45 days after receipt by such indemnifying
party of the aforesaid request, (ii) such indemnifying party shall have received
notice of the terms of such settlement at least 30 days prior to such settlement
being entered into and (iii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of
such
settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement, compromise or consent
to the entry of judgment in any pending or threatened action, suit or proceeding
in respect of which any indemnified party is or could have been a party and
indemnity was or could have been sought hereunder by such indemnified party,
unless such settlement, compromise or consent (i) includes an unconditional
release of such indemnified party from all liability on claims that are the
subject matter of such
19
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action,
suit or proceeding and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act, by or on behalf of any indemnified
party.
Section
7.
Contribution
. If the indemnification provided
for in Section 6 hereof is for any reason unavailable to or otherwise
insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages, liabilities or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount paid or payable
by
such indemnified party, as incurred, as a result of any losses, claims, damages,
liabilities or expenses referred to therein (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the
one
hand, and the Underwriters, on the other hand, from the offering of the Senior
Notes pursuant to this Agreement or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i)
above but also the relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or expenses, as
well
as any other relevant equitable considerations. The relative benefits
received by the Company, on the one hand, and the Underwriters, on the other
hand, in connection with the offering of the Senior Notes pursuant to this
Agreement shall be deemed to be in the same respective proportions as the total
net proceeds from the offering of the Senior Notes pursuant to this Agreement
(before deducting expenses) received by the Company, and the total underwriting
discount received by the Underwriters, in each case as set forth on the front
cover page of the Prospectus bear to the aggregate initial public offering
price
of the Senior Notes as set forth on such cover. The relative fault of
the Company, on the one hand, and the Underwriters, on the other hand, shall
be
determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission
to
state a material fact relates to information supplied by the Company, on the
one
hand, or the Underwriters, on the other hand, and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The
amount paid or payable by a party as a result of the losses, claims, damages,
liabilities and expenses referred to above shall be deemed to include, subject
to the limitations set forth in Section 6(c) hereof, any legal or other fees
or
expenses reasonably incurred by such party in connection with investigating
or
defending any action or claim. The provisions set forth in Section
6(c) hereof with respect to notice of commencement of any action shall apply
if
a claim for contribution is to be made under this Section 7; provided, however,
that no additional notice shall be required with respect to any action for
which
notice has been given under Section 6(c) hereof for purposes of
indemnification.
The
Company and the Underwriters agree that it would not be just and equitable
if
contribution pursuant to this Section 7 were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by
any
other method of allocation which does not take account of the equitable
considerations referred to in this Section 7.
Notwithstanding
the provisions of this Section 7, no Underwriter shall be required to contribute
any amount in excess of the underwriting discount received by such Underwriter
in connection with the Senior Notes underwritten by it and distributed to the
public. No person
20
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guilty
of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters’
obligations to contribute pursuant to this Section 7 are several, and not joint,
in proportion to their respective underwriting commitments as set forth opposite
their names in Schedule A. For purposes of this Section 7, each
director, officer, employee and agent of an Underwriter and each person, if
any,
who controls an Underwriter within the meaning of the Securities Act and the
Exchange Act shall have the same rights to contribution as such Underwriter,
and
each director of the Company, each officer of the Company who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of the Securities Act and the Exchange Act shall have the same
rights to contribution as the Company.
Section
8.
Default of One or More of the Several
Underwriters
.
If, on the Closing Date, any one or more
of the several Underwriters shall fail or refuse to purchase Senior Notes that
it or they have agreed to purchase hereunder on such date, and the aggregate
principal amount of Senior Notes, which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase does not exceed 10% of
the
aggregate principal amount of the Senior Notes, to be purchased on such date,
the other Underwriters shall be obligated, severally, in the proportion to
the
aggregate principal amounts of such Senior Notes set forth opposite their
respective names on Schedule A bears to the aggregate principal amount of such
Senior Notes set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as may be specified by the
Representatives with the consent of the non-defaulting Underwriters, to purchase
such Senior Notes which such defaulting Underwriter or Underwriters agreed
but
failed or refused to purchase on such date. If, on the Closing Date, any one
or
more of the Underwriters shall fail or refuse to purchase such Senior Notes
and
the aggregate principal amount of such Senior Notes with respect to which such
default occurs exceeds 10% of the aggregate principal amount of Senior Notes
to
be purchased on such date, and arrangements satisfactory to the Representatives
and the Company for the purchase of such Senior Notes are not made within 48
hours after such default, this Agreement shall terminate without liability
of
any party to any other party except that the provisions of Section 4, Section
6,
Section 7 and Section 15 hereof shall at all times be effective and
shall survive such termination. In any such case, either the
Representatives or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days in order that the required
changes, if any, to the Registration Statement, each Issuer Free Writing
Prospectus, each Preliminary Prospectus or the Prospectus or any other documents
or arrangements may be effected.
As
used
in this Agreement, the term “
Underwriter
” shall be deemed to
include any person substituted for a defaulting Underwriter under this Section
8. Any action taken under this Section 8 shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
Section
9.
Termination of this Agreement
.
Prior to
the Closing Date, this Agreement may be terminated by the Representatives by
notice given to the Company if at any time (i) trading or quotation in any
of
the Company’s securities shall have been suspended or materially limited by the
Commission, or trading in securities generally on the NASDAQ Global Market
or
the New York Stock Exchange shall have been suspended or materially limited,
or
minimum or
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maximum
prices shall have been generally established on either of such stock exchanges
by the Commission or the NASD; (ii) a general banking moratorium shall have
been
declared by any of federal or New York authorities; (iii) there shall have
occurred any outbreak or escalation of national or international hostilities
or
any crisis or calamity, or any material adverse change in the United States
or
international financial markets, or any change or development involving a
prospective substantial change in United States’ or international political,
financial or economic conditions, as in the judgment of the Representatives
makes it impracticable or inadvisable to market the Senior Notes in the manner
and on the terms described in the Disclosure Package or the Prospectus or to
enforce contracts for the sale of securities; (iv) there shall have occurred
any
Material Adverse Change; or (v) there shall have occurred a material disruption
in commercial banking or securities settlement or clearance services in the
United States. Any termination pursuant to this Section 9 shall be without
liability on the part of (a) the Company to any Underwriter, except that the
Company shall be obligated to reimburse the expenses of the Representatives
and
the Underwriters pursuant to Section 4 hereof, (b) any Underwriter to the
Company, or (c) any party hereto to any other party except that the provisions
of Section 6, Section 7 and Section 15 hereof shall at all times be
effective and shall survive such termination.
Section
10.
No Fiduciary Duty.
No Advisory or Fiduciary
Responsibility
.
The Company acknowledges and agrees
that: (i) the purchase and sale of the Senior Notes pursuant to this Agreement,
including the determination of the public offering price of the Senior Notes
and
any related discounts and commissions, is an arm’s-length commercial transaction
between the Company, on the one hand, and the several Underwriters, on the
other
hand; (ii) in connection with the offering contemplated hereby and the process
leading to such transaction each Underwriter is and has been acting solely
as a
principal and is not the financial advisor, agent or fiduciary of the Company
or
its affiliates, stockholders, creditors or employees or any other party; (iii)
no Underwriter has assumed or will assume an advisory, agency or fiduciary
responsibility in favor of the Company with respect to the offering contemplated
hereby or the process leading thereto (irrespective of whether such Underwriter
has advised or is currently advising the Company on other matters) and no
Underwriter has any obligation to the Company with respect to the offering
contemplated hereby except the obligations expressly set forth in this
Agreement; (iv) the several Underwriters and their respective affiliates may
be
engaged in a broad range of transactions that involve interests that differ
from
those of the Company; and (v) the Underwriters have not provided any legal,
accounting, regulatory or tax advice with respect to the offering contemplated
hereby and the Company has consulted its own legal, accounting, regulatory
and
tax advisors to the extent it deemed appropriate.
The
Company hereby waives and releases, to the fullest extent permitted by law,
any
claims that the Company may have against the several Underwriters with respect
to any breach or alleged breach of agency or fiduciary duty.
SECTION
11.
Representations and Indemnities to Survive
Delivery
.
The respective indemnities, agreements,
representations, warranties and other statements of the Company, of its officers
and of the several Underwriters set forth in or made pursuant to this Agreement
(i) will remain operative and in full force and effect, regardless of (A) any
investigation, or statement as to the results thereof, made by or on behalf
of
any Underwriter, the officers or employees of any Underwriter, or any person
controlling the Underwriter, or the Company, the officers or
22
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employees
of the Company, or any person controlling the Company, as the case may be or
(B)
acceptance of the Senior Notes and payment for them hereunder and (ii) will
survive delivery of and payment for the Senior Notes sold hereunder and any
termination of this Agreement.
Section
12.
Notices
.
All communications hereunder
shall be in writing and shall be mailed, hand delivered or faxed and confirmed
to the parties hereto as follows:
If
to the
Representatives:
Banc
of
America Securities LLC
40
West 57
th
Street
NY1-040-27-03
New
York, NY 10019
Facsimile: (646)
313-4803
Attention: High
Grade Transaction Management/Legal
and
Wachovia
Capital Markets, LLC
One
Wachovia Center,
DC-6
301
South College
Street
Charlotte,
NC 28288
Facsimile:
(704)
383-0661
Attention: James
T. Williams
with
a
copy to:
Davis
Polk & Wardwell
1600
El Camino
Real
Menlo
Park,
CA 94025
Facsimile: (650)
752-2111
Attention: Julia
Cowles
23
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If
to the
Company:
Kansas
City Power & Light Company
1201
Walnut Street
Kansas
City, Missouri 64106-2124
Facsimile: (816)
556-2418
Attention: Mark
English
with
a
copy to:
Sidley
Austin LLP
One
South
Dearborn Street
Chicago,
IL 60603
Facsimile: (312)
853-7036
Attention: Richard
Astle
Any
party
hereto may change the address for receipt of communications by giving written
notice to the others.
SECTION
13.
Successors
.
This Agreement will inure
to the benefit of and be binding upon the parties hereto, including any
substitute Underwriters pursuant to Section 8 hereof, and to the benefit of
the
directors, officers, employees, agents and controlling persons referred to
in
Sections 6 and 7 hereof, and in each case their respective successors and
assigns, and no other person will have any right or obligation
hereunder. The term “
successors and assigns
” shall
not include any purchaser of the Senior Notes as such from any of the
Underwriters merely by reason of such purchase.
SECTION
14.
Partial Unenforceability
.
The
invalidity or unenforceability of any Section, paragraph or provision of this
Agreement shall not affect the validity or enforceability of any other Section,
paragraph or provision hereof. If any Section, paragraph or provision
of this Agreement is for any reason determined to be invalid or unenforceable,
there shall be deemed to be made such minor changes (and only such minor
changes) as are necessary to make it valid and enforceable.
SECTION
15.
Governing Law Provisions
.
THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED IN THAT STATE.
SECTION
16.
General Provisions
.
This Agreement
constitutes the entire agreement of the parties to this Agreement and supersedes
all prior written or oral and all contemporaneous oral agreements,
understandings and negotiations with respect to the subject matter
hereof. This Agreement may be executed in two or more counterparts,
each one of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This
Agreement may not be amended or modified unless in writing by all of the parties
hereto, and no condition herein (express or implied) may be waived unless waived
in writing by each party
24
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whom
the
condition is meant to benefit. The Section headings herein are for
the convenience of the parties only and shall not affect the construction or
interpretation of this Agreement.
Each
of
the parties hereto acknowledges that it is a sophisticated business person
who
was adequately represented by counsel during negotiations regarding the
provisions hereof, including, without limitation, the indemnification provisions
of Section 6 hereof and the contribution provisions of Section 7 hereof, and
is
fully informed regarding said provisions. Each of the parties hereto
further acknowledges that the provisions of Sections 6 and 7 hereof fairly
allocate the risks in light of the ability of the parties to investigate the
Company, its affairs and its business in order to assure that adequate
disclosure has been made in the Registration Statement, the Disclosure Package
and the Prospectus (and any amendments and supplements thereto), as required
by
the Securities Act and the Exchange Act.
25
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If
the
foregoing is in accordance with your understanding of our agreement, kindly
sign
and return to the Company the enclosed copies hereof, whereupon this instrument,
along with all counterparts hereof, shall become a binding agreement in
accordance with its terms.
Very
truly
yours,
|
|
KANSAS
CITY POWER & LIGHT
COMPANY
|
|
|
|
|
|
|
|
|
By:
|
/s/ Michael
W.
Cline
|
|
|
|
|
Michael
W. Cline
|
|
|
|
|
Treasurer
|
|
|
|
|
|
|
26
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The
foregoing Underwriting Agreement is hereby confirmed and accepted by the
Representatives as of the date first above written.
BANC
OF
AMERICA SECURITIES LLC
WACHOVIA
CAPITAL MARKETS, LLC
Acting
as
Representatives of the
several
Underwriters named in
the
attached Schedule A.
|
By:
|
Banc
of America Securities LLC
|
|
By:
|
|
__/s/
Peter J. Carbone________
|
|
By:
|
Wachovia
Capital Markets, LLC
|
|
By:
|
|
__
/s/
Jim
Williams
_________________
|
27
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21075/533/UA/ua.doc
SCHEDULE
A
|
|
Aggregate
Principal Amount of Senior Notes to be
Purchased
|
|
Banc
of America Securities
LLC
|
$71,250,000
|
|
Wachovia
Capital Markets,
LLC
|
71,250,000
|
|
BNP
Paribas Securities
Corp.
|
37,500,000
|
|
BNY
Capital Markets,
Inc.
|
17,500,000
|
|
Lazard
Capital Markets
LLC.
|
17,500,000
|
|
KeyBanc
Capital Markets
Inc.
|
17,500,000
|
|
Scotia
Capital (USA)
Inc.
|
17,500,000
|
|
|
|
|
Total
|
$250,000,000
|
i
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21075/533/UA/ua.doc
LIST
OF
ISSUER FREE WRITING PROSPECTUSES
1. Final
Term Sheet dated May 30, 2007
i
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21075/533/UA/ua.doc
EXHIBIT
A-1
Form
of Opinion of Issuer’s Counsel
June
4,
2007
BANC
OF
AMERICA SECURITIES LLC
WACHOVIA
CAPITAL MARKETS, LLC
As
Representatives of the several Underwriters
c/o Banc
of America Securities LLC
Hearst
Tower
214
North Tryon Street
Charlotte,
NC 28255
and
Wachovia
Capital Markets,
LLC
One
Wachovia Center, DC-5
301
South College Street
Charlotte,
NC 28288
|
Re:
|
Kansas
City Power & Light Company
|
Ladies
and Gentlemen:
As
special counsel for Kansas City Power & Light Company, a Missouri
corporation (the “
Company
”), we address this letter to you individually
and as the representatives of the several Underwriters (the
“
Underwriters
”) named in Schedule A to the Underwriting Agreement dated
May 30, 2007 (the “
Underwriting Agreement
”) between you, as
representatives of the Underwriters, and the Company, with respect to the
issuance and sale pursuant thereto of $250,000,000 aggregate principal amount
of
the Company’s [●]% Notes due 2017 (the “
Senior Notes
”). The
Senior Notes are being issued under a senior indenture dated as of May 1, 2007
(the “
Indenture
”) between the Company and The Bank of New York Trust
Company, N.A., as trustee (the “
Trustee
”), as supplemented by
Supplemental Indenture No. 1 dated as of June 4, 2007 between the Company and
the Trustee (the “
Supplemental Indenture
”).
The
Company filed with the Securities and Exchange Commission (the
“
Commission
”) under the Securities Act of 1933, as amended (the
“
Securities Act
”):
(i)
on
August 26, 2003, a Registration Statement on Form S-3 (Registration No.
333-108215), and on August 29, 2003, Amendment No. 1 thereto, which registration
statement, as so amended, became effective on September 4, 2003; as used in
this
letter, the term “
Registration Statement
” shall mean, as of any time
referred to herein, such registration
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statement,
as amended at such time, including all exhibits thereto (but excluding Form
T-1)
and the documents incorporated or deemed to be incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act and any prospectus
supplement relating to the Senior Notes that was filed with the Commission
and
deemed to be part of and included in the Registration Statement pursuant to
Rule
430B(f)(1) under the Securities Act;
(ii)
on
May 30, 2007, pursuant to Rule 424(b) under the Securities Act
(“
Rule 424(b)
”), the Company’s preliminary prospectus supplement
dated May 30, 2007 (the “
Preliminary Prospectus Supplement
”) specifically
relating to the Senior Notes and the prospectus dated May 30, 2007 relating
to
the Company’s debt securities included in the Registration Statement (including
the documents incorporated or deemed to be incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act, the “
Base
Prospectus
”); as used in this letter, the term “
Preliminary
Prospectus
” shall mean the Preliminary Prospectus Supplement together with
the Base Prospectus;
(iii)
on
May 30, 2007, pursuant to Rule 433 under the Securities Act
(“
Rule 433
”), a final term sheet, dated May 30, 2007 (the “
Final
Term Sheet
”), relating to the Senior Notes; and
(iv)
on
May [●], 2007, pursuant to Rule 424(b), the Company’s prospectus supplement
dated May 30, 2007 (the “
Prospectus Supplement
”) specifically relating to
the Senior Notes and the Base Prospectus; as used in this letter, the term
“
Prospectus
” shall mean the Prospectus Supplement together with the Base
Prospectus.
As
used
in this letter, the term “
Initial Sale Time
” means [
·
]
[p.m.] (Eastern
time) on May 30, 2007.
Pursuant
to the requirement of Section 5(f)(i) of the Underwriting Agreement, this
will advise you that in the opinion of the undersigned:
1. The
Registration Statement has become effective under the Securities Act; each
of
the Preliminary Prospectus and the Prospectus has been filed pursuant to Rule
424(b) in accordance with Rule 424(b); the Final Term Sheet
[and each
other Issuer Free Writing Prospectus required to be filed with the
Commission]
1
has been filed
pursuant to Rule 433 in accordance with Rule 433; and, to our knowledge, no
stop
order suspending the effectiveness of the Registration Statement is in effect
nor are any proceedings for such purpose pending before or threatened by the
Commission.
2. The
Registration Statement (other than the financial statements, financial data,
statistical data and supporting schedules included therein or omitted therefrom
and other than the documents incorporated by reference therein, as to none
of
which we express any opinion pursuant to this paragraph 2), as of the “new
effective date” (as defined herein), the Preliminary Prospectus (other than the
financial statements, financial data, statistical data and supporting schedules
included therein or omitted therefrom and other than the documents incorporated
by
______________________________
1.
1
If any, to be
specifically referenced.
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reference
therein, as to none of which we express any opinion pursuant to this paragraph
2), at the Initial Sale Time, and the Prospectus (other than the financial
statements, financial data, statistical data and supporting schedules included
therein or omitted therefrom and other than the documents incorporated by
reference therein, as to none of which we express any opinion pursuant to this
paragraph 2), as of the date of the Prospectus Supplement and as of the date
hereof, each complied as to form in all material respects with the requirements
of the Trust Indenture Act of 1939, as amended (the “
Trust Indenture
Act
”), the Securities Act and the rules and regulations of the Commission
promulgated thereunder.
3. The
documents incorporated by reference in the Preliminary Prospectus and the
Prospectus (other than the financial statements, financial data, statistical
data and supporting schedules included therein or omitted therefrom, as to
which
we express no opinion), at the respective times such documents were filed with
the Commission, complied as to form in all material respects with the applicable
requirements of the Securities Exchange Act of 1934, as amended (the
“
Exchange Act
”), and the rules and regulations of the Commission
promulgated thereunder.
4. The
Indenture has been duly qualified under the Trust Indenture Act and constitutes
a legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except to the extent enforceability may
be
limited by bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other similar laws of general applicability relating to or
affecting the enforcement of creditors’ rights and by the effect of general
principles of equity (regardless of whether enforceability is considered in
a
proceeding in equity or at law).
5. The
execution, delivery and performance by the Company of this Agreement, the
Indenture and the Senior Notes and the consummation by the Company of the
transactions contemplated thereby (including the issuance and sale of the Senior
Notes and the use of the proceeds from the sale of the Senior Notes as described
in the Disclosure Package and the Prospectus under the caption “Use Of
Proceeds”) and compliance by the Company with its obligations under this
Agreement, the Indenture and the Senior Notes do not and will not violate any
provision of New York law that, in our experience and without independent
investigation, is normally applicable to transactions of the type contemplated
by this Agreement and the Indenture (provided no opinion is expressed with
respect to state securities or blue sky laws).
6. The
Senior Notes, when duly authorized and executed by the Company, authenticated
by
the Trustee in accordance with the terms of the Indenture and delivered against
payment therefor pursuant to the terms of the Underwriting Agreement, will
constitute a legal, valid and binding obligation of the Company, entitled to
the
benefits of the Indenture and enforceable against the Company in accordance
with
the terms of the Senior Notes, except to the extent enforceability may be
limited by bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other similar laws of general applicability relating to or
affecting the enforcement of creditors’ rights and by the effect of general
principles of equity (regardless of whether enforceability is considered in
a
proceeding in equity or at law).
7. To
our knowledge, no consent, approval, authorization or order of, or registration
or filing with, any court or other governmental or regulatory authority or
agency is required
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under
Applicable Laws for the execution and delivery by the Company of, or the
performance of the Company’s obligations under, the Underwriting Agreement, the
Indenture or the Supplemental Indenture, or for the issue and sale of the Senior
Notes. As used in this paragraph 7, the term “Applicable Laws” means
the laws of the State of New York and the federal laws of the United States
of
America which, in our experience and without independent investigation, are
normally applicable to transactions of the type contemplated by the Underwriting
Agreement, the Indenture, the Supplemental Indenture (provided that the term
“Applicable Laws” shall not include federal or state securities or blue sky
laws, including, without limitation, the Securities Act, the Exchange Act,
the
Trust Indenture Act and the Investment Company Act of 1940, as amended (the
“
Investment Company Act
”), and the respective rules and regulations
thereunder).
8. The
statements set forth in the Disclosure Package and the Prospectus under the
headings “Description of the Notes” (insofar as such statements purport to
summarize certain provisions of the Senior Notes, the Indenture and the
Supplemental Indenture) fairly summarize in all material respects the matters
therein described.
9. The
Company is not, and after receipt of payment for the Senior Notes and
application of the proceeds as described in the Prospectus, will not be,
required to register as an “investment company” within the meaning of the
Investment Company Act.
In
acting
as special counsel for the Company in connection with the transactions described
in the first paragraph above, we have participated in conferences with officers
and other representatives of the Company, including its independent registered
public accountants and representatives of the Underwriters and representatives
of counsel for the Underwriters, at which conferences the contents of the
Disclosure Package (as such term is defined in
Annex A
hereto), the
Prospectus and the Registration Statement and related matters were
discussed. We have not participated in the preparation of the
documents incorporated by reference in the Registration Statement, the
Disclosure Package or the Prospectus, however, we have reviewed such
documents. Except as stated in numbered paragraph 8 above, we have
not independently checked the accuracy or completeness of, or otherwise
verified, and accordingly are not passing upon, and do not assume responsibility
for, the accuracy, completeness or fairness of statements contained in the
Registration Statement, the Disclosure Package or the
Prospectus. However, as a result of such consideration and
participation, no facts have come to our attention that have caused us to
believe that:
(a) the
Registration Statement, as of each “new effective date” with respect to the
Senior Notes pursuant to, and within the meaning of, Rule 430B(f)(2) under
the
Securities Act, contained an untrue statement of a material fact or omitted
to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading;
(b) the
Disclosure Package, at the Initial Sale Time, included an untrue statement
of a
material fact or omitted to state a material fact necessary in order to make
the
statements therein, in the light of the circumstances under which they were
made, not misleading; or
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(c) the
Prospectus, as of the date of the Prospectus Supplement and on the date hereof,
included or includes an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein,
in
the light of the circumstances under which they were made, not
misleading;
except
in
each case we express no belief, and make no statement with respect to, the
financial statements, financial data, statistical data and supporting schedules
included or incorporated or deemed to be incorporated by reference therein
or
omitted therefrom.
Insofar
as the opinions and statements set forth in numbered paragraph 2 and paragraph
(a) above address the Registration Statement at a “new effective date” with
respect to the Senior Notes:
(i) we
have been informed by you, as the representative of the Underwriters, that
the
date of first use of the Preliminary Prospectus was May 30, 2007 and that we
may
assume that such use occurred prior to the date and time of the first contract
of sale of the Senior Notes for the purposes of Rule 430B(f)(1) under the
Securities Act; and, therefore, we assume that a “new effective date” was May
30, 2007, and we have assumed, with your permission and without independent
investigation or verification, the accuracy of such information;
and
(ii) we
have been informed by you, as the representative of the Underwriters, that
the
Initial Sale Time was immediately prior to the earlier of the date that the
Prospectus was first used or the date and time of the first contract of sale
of
the Senior Notes for the purposes of Rule 430B(f)(1) under the Securities Act;
and, therefore, we assume that a “new effective date” was the Initial Sale Time,
and we have assumed, with your permission and without independent investigation
or verification, the accuracy of such information.
For
the
purpose of rendering the foregoing opinions and making the foregoing statements,
we have relied to the extent we have deemed appropriate, as to various questions
of fact material to such opinions and statements, upon the representations
made
by the Company in the Underwriting Agreement and upon certificates of officers
of the Company. We also have examined originals, or copies of
originals certified to our satisfaction, of such agreements, documents,
certificates and other statements of governmental officials and other
instruments, have examined such questions of law and have satisfied ourselves
as
to such matters of fact as we have considered relevant and necessary as a basis
for this letter. We have assumed the genuineness of all signatures,
the legal capacity of all natural persons, the authenticity of all documents
submitted to us as originals and the conformity with the original documents
of
all documents submitted to us as certified or photostatic copies or by facsimile
or other means of electronic transmission or which we obtained from the
Commission’s Electronic Data Gathering, Analysis and Retrieval System
(“
EDGAR
”). In rendering our opinion set forth in numbered
paragraph 1 above with respect to the effectiveness of the Registration
Statement and the absence of stop orders or proceedings, we have relied solely
upon the oral advice of the staff of the Commission via a telephonic call on
the
date hereof. In rendering our opinion set forth in numbered paragraph
1 above with respect to the filing of the Preliminary Prospectus, the Final
Term
Sheet and the Prospectus, we have relied solely upon our review of the EDGAR
website of the Commission. With respect to any instrument or
agreement executed or to be executed by any party, we have assumed, to the
extent relevant to the opinions set forth herein, that (i) such
party
A-1-5
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21075/533/UA/ua.doc
(if
not a
natural person) has been duly organized and is validly existing and in good
standing under the laws of its jurisdiction of organization and (ii) such party
has or had full right, power and authority to execute, deliver and perform
its
obligations under each instrument or agreement to which it is a party and each
such instrument or agreement has been duly authorized (if applicable), executed
and delivered by, and, with respect to any party other than the Company, is
a
valid, binding and enforceable agreement or obligation, as the case may be,
of,
such party.
In
rendering our opinion set forth in numbered paragraph 9 above, we have relied
exclusively, as to all factual matters, on the certificate, dated as of the
date
of this letter, of Terry Bassham, Chief Financial Officer of the
Company.
Any
opinion or statement herein which is expressed to be “to our knowledge” or is
otherwise qualified by words of like import means that the lawyers currently
practicing law with the Firm who have had active involvement in representing
the
Company have no current conscious awareness of any facts or information contrary
to such opinion or statement. Except to the extent expressly set
forth in this letter, we have not undertaken any independent investigation
to
determine the existence or absence of any fact, and no inference as to our
knowledge of the existence or absence of any fact should be drawn from our
representation of the Company or the rendering of this letter.
This
letter is limited to the federal laws of the United States of America and the
laws of the State of New York. We express no opinion as to matters
relating to securities or blue sky laws of any jurisdiction or any rules or
regulations thereunder (other than federal securities laws). This
letter is based on the law in effect, and the facts and circumstances existing,
on the date of this letter. We assume no obligation to update or
supplement this letter to reflect any facts or circumstances which may hereafter
come to our attention with respect to the opinions and statements expressed
above, including any changes in applicable law which may hereafter
occur.
This
letter is being rendered and delivered solely to and for the benefit of the
persons to whom it is addressed; accordingly, it may not be delivered to or
relied upon by any other person (including, without limitation, any person
who
acquires the Senior Notes from or through the Underwriters), quoted or filed
with any governmental authority or other regulatory agency or otherwise
circulated or utilized for any other purpose without our prior written
consent.
Very
truly yours,
A-1-6
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ANNEX
A
DISCLOSURE
PACKAGE
1. The
Preliminary Prospectus.
2. The
Final Term Sheet.
For
purposes of determining the “Disclosure Package,” the information contained in
the foregoing documents shall be considered together.
A-1-7
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EXHIBIT
A-2
Form
of Opinion of Company’s General Counsel
|
a)
|
The
Company is a validly organized and existing corporation in good standing
under the laws of the State of Missouri and is duly qualified as
a foreign
corporation to do business in the State of Kansas with corporate
power and
authority to own, lease and operate its properties and to conduct
its
business as set forth in the Disclosure Package and the Prospectus
and to
enter into and perform its obligations under this
Agreement.
|
|
b)
|
This
Agreement has been duly authorized, executed and delivered by the
Company.
|
|
c)
|
The
Indenture has been duly authorized, executed and delivered by the
Company.
|
|
d)
|
The
Senior Notes have been duly authorized, executed and delivered by
the
Company.
|
|
e)
|
Each
Subsidiary has been duly organized or formed and is validly existing
as a
corporation in good standing under the laws of the jurisdiction of
its
incorporation, has the corporate power and authority to own, lease
and
operate its properties and to conduct its business as described in
the
Disclosure Package and the Prospectus and is duly qualified as a
foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of
the ownership or leasing of property or the conduct of business,
except
where the failure so to qualify or to be in good standing would not
result
in a Material Adverse Change; except as otherwise disclosed in the
Disclosure Package and the Prospectus, all of the issued and outstanding
capital stock owned directly or indirectly by the Company of each
Subsidiary have been duly authorized and validly issued, are fully
paid
and non-assessable and, to the best of such counsel’s knowledge, such
capital stock owned by the Company, are owned by the Company, directly
or
through subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance or claim; and none of the outstanding shares
of
capital stock of any Subsidiary was issued in violation of preemptive
or
similar rights of any securityholder of such
Subsidiary.
|
|
|
|
No
approval, authorization, consent, certificate or order of any state
or
federal commission or regulatory authority (other than (i) as may
be
required under securities or blue sky laws of the various states,
as to
which such counsel need express no opinion, and (ii) as may have
already
been obtained or made and shall be in full force and effect on the
date
hereof) is necessary with respect to the issue and sale of the Senior
Notes as contemplated in this Agreement and the
Indenture.
|
|
g)
|
The
Company and the Subsidiaries hold, to the extent required, valid
and
subsisting franchises, licenses and permits authorizing them to carry
on
the regulated utility businesses in which they are engaged, in the
territories from which substantially all of the Company’s consolidated
gross operating revenue is derived, except where the failure to hold
such
franchises, licenses and permits would not reasonably be expected
to
result in a Material Adverse
Change.
|
A-2-1
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|
h)
|
To
the best of such counsel’s knowledge, there are no legal or governmental
proceedings pending or threatened which are required to be disclosed
in
the Disclosure Package and the Prospectus, other than those disclosed
therein, and all pending legal or governmental proceedings to which
the
Company or any of its subsidiaries is a party or of which any of
their
property is the subject which are not described in the Disclosure
Package
and the Prospectus, including ordinary routine litigation incidental
to
the business of the Company, are, considered in the aggregate, not
material to the consolidated financial condition of the Company and
its
subsidiaries, taken as a whole.
|
|
|
|
To
the best of such counsel’s knowledge, the Company is not in violation of
its Restated Articles of Consolidation, as amended, or in default
in the
performance or observance of any material obligation, agreement,
covenant
or condition contained in any material Agreement or
Instrument.
|
|
|
|
The
execution, delivery and performance of this Agreement, the Indenture,
the
Supplemental Indenture and the Senior Notes and the consummation
of the
transactions contemplated therein (including the issuance and sale
of the
Senior Notes and the use of the proceeds received by the Company
from the
sale of the Senior Notes as described in the Disclosure Package and
the
Prospectus under the caption “Use Of Proceeds”) and compliance by the
Company with its obligations under this Agreement, the Indenture,
the
Supplemental Indenture and the Senior Notes do not and will not conflict
with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any Subsidiary pursuant to any
material Agreement or Instrument, or any law, administrative regulation
or
administrative or court order or decree known to such counsel to
be
applicable to the Company of any court or governmental agency, authority
or body or any arbitrator having jurisdiction over the Company; nor
will
such action result in any violation of the provisions of the Restated
Articles of Consolidation, as amended, or by-laws of the
Company.
|
|
k)
|
To
the best of such counsel’s knowledge, there are no contracts, indentures,
mortgages, loan agreements, notes, leases or other instruments or
documents required to be described or referred to in the Disclosure
Package or the Prospectus or to be filed as exhibits to the Registration
Statement other than those described or referred to therein or filed
or
incorporated by reference as exhibits to the Registration Statement,
the
descriptions thereof or references thereto are correct in all material
respects, and no default exists in the due performance or observance
of
any material obligation, agreement, covenant or condition contained
in any
Agreement or Instrument described, referred to, filed or incorporated
by
reference therein.
|
In
rendering such opinion, such counsel may state that he expresses no opinion
as
to the laws of any jurisdiction other than the laws of the States of Missouri
and Kansas and the federal laws of the United States of America. Such
opinion shall not state that it is to be governed or qualified by, or that
it is
otherwise subject to, any treatise, written policy or other document relating
to
legal opinions, including, without limitation, the Legal Opinion Accord of
the
ABA Section of Business Law (1991).
A-2-2
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EXHIBIT
B
Final
Term Sheet
May 30,
2007
|
Issuer:
|
Kansas
City Power & Light Company
|
|
Ratings:
|
Moody’s
Investor Services: A3 (Stable Outlook)
Standard
& Poor’s Ratings Group: BBB (CreditWatch with Negative
Implications)
|
|
Principal
Amount:
|
$250,000,000
|
|
Title
of Securities:
|
5.850%
Notes due 2017
|
|
Maturity:
|
June
15, 2017
|
|
Coupon
(Interest Rate):
|
5.850%
|
|
Yield
to Maturity:
|
5.872%
|
|
Benchmark
Treasury:
|
4.500%
due May 15, 2017
|
|
Spread
to Benchmark Treasury:
|
100
basis points
|
|
Benchmark
Treasury Price and Yield:
|
97.03
/ 4.872%
|
|
Interest
Payment Dates:
|
Semi-annually
on June 15 and December 15, commencing on December 15, 2007
|
|
Redemption
Provision:
|
Callable
at any time at a make-whole price of the greater of (i) 100% of the
principal amount or (ii) discounted present value at Treasury Rate
plus 15
basis points
|
|
Price
to Public:
|
99.832%
of the principal amount, plus accrued interest, if any, from June
4,
2007
|
|
Settlement
Date:
|
June
4, 2007
|
The
issuer has filed a registration statement (including a prospectus) with the
SEC
for the offering to which this communication relates. Before you
invest, you should read the prospectus in that registration statement and other
documents the issuer has filed with the SEC for more complete information about
the issuer and this offering. You may get these documents for free by
visiting EDGAR on the SEC Web site at
www.sec.gov
. Alternatively, Banc of America Securities LLC or
Wachovia Capital Markets, LLC can arrange to send you the prospectus if you
request it by calling or e-mailing Banc of America Securities LLC at
1-800-294-1322 or dg.prospectus_distribution@bofasecurities.com or by calling
Wachovia Capital Markets, LLC at 1-866-289-1262.
B-1
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21075/533/UA/ua.doc
Exhibit
4.1
KANSAS
CITY POWER & LIGHT COMPANY
AND
THE
BANK
OF NEW YORK TRUST COMPANY, N.A.,
Trustee
-----------------
INDENTURE
Dated
as
of May 1, 2007
CROSS
REFERENCE SHEET SHOWING THE LOCATION IN THE INDENTURE OF THE PROVISIONS INSERTED
CORRELATIVE TO SECTIONS 310 THROUGH 318(a), INCLUSIVE, OF THE TRUST INDENTURE
ACT OF 1939
|
|
|
Indenture
|
|
Section of Act
|
Section
|
|
|
|
|
|
310(a)(1)
|
.............................................................................
|
9.09
|
|
(a)(2)
|
.............................................................................
|
9.09
|
|
(a)(3)
|
.............................................................................
|
Not
Applicable
|
|
(a)(4)
|
.............................................................................
|
Not
Applicable
|
|
(a)(5)
|
.............................................................................
|
9.09
|
|
(b)
|
.............................................................................
|
9.08
|
|
(c)
|
.............................................................................
|
Not
Applicable
|
|
311(a)
|
.............................................................................
|
9.14
|
|
(b)
|
.............................................................................
|
9.14
|
|
(c)
|
.............................................................................
|
Not
Applicable
|
|
312(a)
|
.............................................................................
|
7.01
and 7.02(a)
|
|
(b)
|
.............................................................................
|
7.02(b)
|
|
(c)
|
.............................................................................
|
7.02(c)
|
|
313(a)
|
.............................................................................
|
7.04(a)
|
|
(b)
|
.............................................................................
|
7.04(b)
|
|
(c)
|
.............................................................................
|
7.04(d)
|
|
(d)
|
.............................................................................
|
7.04(c)
|
|
314(a)
|
.............................................................................
|
7.03
and 6.06
|
|
(b)
|
.............................................................................
|
6.05
|
|
(c)(1)
|
.............................................................................
|
1.03
and 15.05
|
|
(c)(2)
|
.............................................................................
|
1.03
and 15.05
|
|
(c)(3)
|
.............................................................................
|
Not
Applicable
|
|
(d)
|
.............................................................................
|
1.03
and 4.06
|
|
(e)
|
.............................................................................
|
15.05(b)
|
|
(f)
|
.............................................................................
|
Not
Applicable
|
|
315(a)
|
.............................................................................
|
9.01
|
|
(b)
|
.............................................................................
|
8.08
|
|
(c)
|
.............................................................................
|
9.01(a)
|
|
(d)
|
.............................................................................
|
9.01(b)
|
|
(e)
|
.............................................................................
|
8.09
|
|
316(a)
|
.............................................................................
|
8.07
and 10.04
|
|
(b)
|
.............................................................................
|
8.04(b)
and 13.02
|
|
(c)
|
.............................................................................
|
10.06
|
|
317(a)(1)
|
.............................................................................
|
8.02(b)
|
|
(a)(2)
|
.............................................................................
|
8.02(c)
|
|
(b)
|
.............................................................................
|
5.02
and 6.04
|
|
318(a)
|
.............................................................................
|
15.08
|
-------------------
NOTE: This
Cross Reference Sheet is not, for any purpose, deemed to be a part of the
Indenture.
i
TABLE
OF CONTENTS*
Page
|
PARTIES
|
|
1
|
|
RECITALS
|
|
1
|
|
|
|
|
|
|
ARTICLE
ONE
|
|
|
|
|
|
|
|
DEFINITIONS
|
|
|
|
|
|
|
SECTION
1.01
|
General
|
1
|
|
SECTION
1.02
|
Trust
Indenture Act
|
1
|
|
SECTION
1.03
|
Definitions
|
2
|
|
|
|
|
|
|
ARTICLE
TWO
|
|
|
|
|
|
|
|
FORM,
ISSUE, EXECUTION, REGISTRATION, AND EXCHANGE OF NOTES
|
|
|
|
|
|
|
SECTION
2.01
|
Forms
Generally
|
5
|
|
SECTION
2.02
|
Form
of Trustee's Certificate of Authentication
|
5
|
|
SECTION
2.03
|
Amount
Unlimited
|
6
|
|
SECTION
2.04
|
Denominations,
Dates, Interest Payment and Record Dates
|
6
|
|
SECTION
2.05
|
Execution,
Authentication, Delivery, and Dating
|
7
|
|
SECTION
2.06
|
Exchange
and Registration of Transfer of Notes
|
10
|
|
SECTION
2.07
|
Mutilated,
Destroyed, Lost or Stolen Notes
|
11
|
|
SECTION
2.08
|
Temporary
Notes
|
11
|
|
SECTION
2.09
|
Cancellation
of Notes Paid, Etc.
|
12
|
|
SECTION
2.10
|
Interest
Rights Preserved
|
12
|
|
SECTION
2.11
|
Special
Record Date
|
12
|
|
SECTION
2.12
|
Payment
of Notes
|
12
|
|
SECTION
2.13
|
Notes
Issuable in the Form of a Global Note
|
13
|
|
SECTION
2.14
|
CUSIP
and ISIN Numbers
|
15
|
|
SECTION
2.15
|
Extension
of Interest Payment Periods
|
15
|
|
|
|
|
|
|
ARTICLE
THREE
|
|
|
|
|
|
|
|
REDEMPTION
OF NOTES
|
|
|
|
|
|
|
SECTION
3.01
|
Applicability
of Article
|
15
|
|
SECTION
3.02
|
Notice
of Redemption; Selection of Notes
|
16
|
|
SECTION
3.03
|
Payment
of Notes on Redemption; Deposit of Redemption Price.
|
16
|
|
|
|
|
|
|
ARTICLE
FOUR
|
|
|
|
|
|
|
|
SINKING
FUNDS
|
|
|
|
|
|
|
SECTION
4.01
|
Applicability
of Article
|
17
|
|
SECTION
4.02.
|
Satisfaction
of Sinking Fund Payments with Notes
|
18
|
|
SECTION
4.03.
|
Redemption
of Notes for Sinking Funds
|
18
|
|
|
|
|
|
*
The Table of Contents is not part of the Indenture.
|
|
ii
|
|
|
|
|
|
|
|
|
|
ARTICLE
FIVE
|
|
|
|
|
|
|
|
SATISFACTION
AND DISCHARGE; UNCLAIMED MONEYS
|
|
|
|
|
|
|
SECTION
5.01
|
Satisfaction
and Discharge of Indenture
|
19
|
|
SECTION
5.02
|
Application
of Trust Funds; Indemnification
|
19
|
|
SECTION
5.03
|
Legal
Defeasance
|
20
|
|
SECTION
5.04
|
Covenant
Defeasance
|
21
|
|
SECTION
5.05
|
Repayment
to Company
|
22
|
|
|
|
|
|
|
ARTICLE
SIX
|
|
|
|
|
|
|
|
PARTICULAR
COVENANTS OF THE COMPANY
|
|
|
|
|
|
|
SECTION
6.01
|
Payment
of Principal and Interest
|
22
|
|
SECTION
6.02
|
Offices
for Payments, Etc.
|
23
|
|
SECTION
6.03
|
Appointment
to Fill a Vacancy in Office of Trustee
|
23
|
|
SECTION
6.04
|
Provision
as to Paying Agent
|
23
|
|
SECTION
6.05
|
Corporate
Existence
|
24
|
|
SECTION
6.06
|
Certificates
and Notice to Trustee
|
24
|
|
|
|
|
|
|
ARTICLE
SEVEN
|
|
|
|
|
|
|
|
NOTEHOLDER
LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
|
|
|
|
|
|
|
SECTION
7.01
|
Company
to Furnish Noteholder Lists
|
24
|
|
SECTION
7.02
|
Preservation
and Disclosure of Noteholder Lists
|
25
|
|
SECTION
7.03
|
Reports
by the Company
|
26
|
|
SECTION
7.04
|
Reports
by the Trustee
|
27
|
|
|
|
|
|
|
|
|
|
|
ARTICLE
EIGHT
|
|
|
|
|
|
|
|
REMEDIES
OF THE TRUSTEE AND NOTEHOLDERS ON EVENTS OF DEFAULT
|
|
|
|
|
|
|
SECTION
8.01
|
Events
of Default
|
27
|
|
SECTION
8.02
|
Collection
of Indebtedness by Trustee; Trustee May Prove Debt
|
29
|
|
SECTION
8.03
|
Application
of Proceeds
|
31
|
|
SECTION
8.04
|
Limitations
on Suits by Noteholders
|
31
|
|
SECTION
8.05
|
Suits
for Enforcement
|
32
|
|
SECTION
8.06
|
Powers
and Remedies Cumulative; Delay or Omission Not Waiver of
Default
|
32
|
|
SECTION
8.07
|
Direction
of Proceedings and Waiver of Defaults by Majority of
Noteholders
|
33
|
|
SECTION
8.08
|
Notice
of Default
|
33
|
|
SECTION
8.09
|
Undertaking
to Pay Costs
|
34
|
|
SECTION
8.10
|
Restoration
of Rights on Abandonment of Proceedings
|
34
|
|
SECTION
8.11
|
Waiver
of Usury, Stay, or Extension Laws
|
34
|
iii
|
|
|
|
|
|
ARTICLE
NINE
|
|
|
|
|
|
|
|
CONCERNING
THE TRUSTEE
|
|
|
|
|
|
|
SECTION
9.01
|
Duties
and Responsibilities of Trustee
|
34
|
|
SECTION
9.02
|
Reliance
on Documents, Opinions, Etc.
|
35
|
|
SECTION
9.03
|
No
Responsibility for Recitals, etc.
|
37
|
|
SECTION
9.04
|
Trustee,
Authenticating Agent, Paying Agent or Registrar May Own
Notes
|
37
|
|
SECTION
9.05
|
Moneys
to be Held in Trust
|
37
|
|
SECTION
9.06
|
Compensation
and Expenses of Trustee
|
37
|
|
SECTION
9.07
|
Officers'
Certificate as Evidence
|
37
|
|
SECTION
9.08
|
Conflicting
Interest of Trustee
|
38
|
|
SECTION
9.09
|
Existence
and Eligibility of Trustee
|
38
|
|
SECTION
9.10
|
Resignation
or Removal of Trustee
|
38
|
|
SECTION
9.11
|
Appointment
of Successor Trustee
|
39
|
|
SECTION
9.12
|
Acceptance
by Successor Trustee
|
39
|
|
SECTION
9.13
|
Succession
by Merger, Etc.
|
40
|
|
SECTION
9.14
|
Limitations
on Rights of Trustee as a Creditor
|
40
|
|
SECTION
9.15
|
Authenticating
Agent
|
40
|
|
SECTION
9.16
|
Trustee's
Application for Instructions from the Company
|
41
|
|
|
|
|
|
|
ARTICLE
TEN
|
|
|
|
|
|
|
|
CONCERNING
THE NOTEHOLDERS
|
|
|
|
|
|
|
SECTION
10.01
|
Action
Taken by Noteholders
|
41
|
|
SECTION
10.02
|
Proof
of Execution by Noteholders
|
41
|
|
SECTION
10.03
|
Persons
Deemed Absolute Owners
|
42
|
|
SECTION
10.04
|
Company-Owned
Notes Disregarded
|
42
|
|
SECTION
10.05
|
Revocation
of Consents; Future Holders Bound
|
42
|
|
SECTION
10.06
|
Record
Date for Noteholder Acts
|
42
|
|
|
|
|
|
|
|
|
|
|
ARTICLE
ELEVEN
|
|
|
|
|
|
|
|
NOTEHOLDERS'
MEETING
|
|
|
|
|
|
|
SECTION
11.01
|
Purposes
of Meeting
|
43
|
|
SECTION
11.02
|
Call
of Meetings by Trustee
|
43
|
|
SECTION
11.03
|
Call
of Meetings by Company or Noteholders
|
43
|
|
SECTION
11.04
|
Qualifications
for Voting
|
44
|
|
SECTION
11.05
|
Regulations
|
44
|
|
SECTION
11.06
|
Voting
|
44
|
|
SECTION
11.07
|
Rights
of Trustee or Noteholders Not Delayed
|
45
|
|
|
|
|
|
|
ARTICLE
TWELVE
|
|
|
|
|
|
|
|
CONSOLIDATION,
MERGER, SALE, TRANSFER OR CONVEYANCE
|
|
|
|
|
|
|
SECTION
12.01
|
Company
May Consolidate, Etc. Only on Certain Terms
|
45
|
|
SECTION
12.02
|
Successor
Corporation Substituted
|
45
|
iv
|
|
|
|
|
|
ARTICLE
THIRTEEN
|
|
|
|
|
|
|
|
SUPPLEMENTAL
INDENTURES
|
|
|
|
|
|
|
SECTION
13.01
|
Supplemental
Indentures Without Consent of Noteholders
|
46
|
|
SECTION
13.02
|
Supplemental
Indentures With Consent of Noteholders
|
47
|
|
SECTION
13.03
|
Compliance
with Trust Indenture Act; Effect of Supplemental
Indentures
|
48
|
|
SECTION
13.04
|
Notation
on Notes
|
48
|
|
SECTION
13.05
|
Evidence
of Compliance of Supplemental Indenture to be Furnished
Trustee
|
48
|
|
|
|
|
|
|
|
|
|
|
ARTICLE
FOURTEEN
|
|
|
|
|
|
|
|
IMMUNITY
OF INCORPORATORS, STOCKHOLDERS, OFFICERS, AND DIRECTORS; LIMITATION
OF
LIABILITY
|
|
|
|
|
|
|
SECTION
14.01
|
Indenture
and Notes Solely Corporate Obligations
|
48
|
|
SECTION
14.02
|
Limitation
of Liability of Trustee
|
49
|
|
|
|
|
|
|
ARTICLE
FIFTEEN
|
|
|
|
|
|
|
|
MISCELLANEOUS
PROVISIONS
|
|
|
|
|
|
|
SECTION
15.01
|
Provisions
Binding on Company's Successors
|
49
|
|
SECTION
15.02
|
Official
Acts by Successor Corporation
|
49
|
|
SECTION
15.03
|
Notices
|
49
|
|
SECTION
15.04
|
Governing
Law; Consent to Jurisdiction; Waiver of Jury Trial
|
49
|
|
SECTION
15.05
|
Evidence
of Compliance with Conditions Precedent
|
50
|
|
SECTION
15.06
|
Business
Days
|
51
|
|
SECTION
15.07
|
Trust
Indenture Act to Control
|
51
|
|
SECTION
15.08
|
Table
of Contents, Headings, Etc.
|
51
|
|
SECTION
15.09
|
Execution
in Counterparts
|
51
|
|
SECTION
15.10
|
Manner
of Mailing Notice to Noteholders
|
51
|
|
SECTION
15.11
|
Approval
by Trustee of Counsel
|
52
|
|
|
|
|
|
|
|
|
|
TESTIMONIUM
|
53
|
|
SIGNATURES
AND SEALS
|
53
|
|
ACKNOWLEDGMENTS
|
53
|
v
THIS
INDENTURE, dated as of May 1,
2007, between KANSAS CITY POWER & LIGHT COMPANY, a corporation duly
organized and existing under the laws of the State of Missouri (the "COMPANY"),
and THE BANK OF NEW YORK TRUST COMPANY, N.A., a national banking association,
as
trustee (the "TRUSTEE").
WHEREAS,
for its lawful corporate
purposes, the Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (the "Notes"), to be issued
in one or more series as in this Indenture provided; and
WHEREAS,
all acts and things necessary
to make this Indenture a valid agreement according to its terms have been done
and performed, and the execution of this Indenture and the issue hereunder
of
the Notes have in all respects been duly authorized;
NOW,
THEREFORE, in consideration of the
premises, of the purchase and acceptance of the Notes by the holders thereof
and
of the sum of $1 duly paid by the Trustee at the execution of these presents,
the receipt whereof is hereby acknowledged, the Company covenants and agrees
with the Trustee, for the equal and proportionate benefit of the respective
holders from time to time of the Notes or any series thereof, as
follows:
ARTICLE
I
DEFINITIONS
Section
1.01 GENERAL.
(a)
The terms defined in this Article I
(whether or not capitalized and except as herein otherwise expressly provided
or
unless the context otherwise requires) for all purposes of this Indenture and
of
any indenture supplemental hereto or Company Order (as hereinafter defined)
shall have the respective meanings specified in this Article I.
(b)
All accounting terms used herein
and not expressly defined herein shall have the meanings assigned to them in
accordance with generally accepted accounting principles in the United States
of
America, and, except as otherwise herein expressly provided, the term "generally
accepted accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are generally
accepted in the United States of America at the date of such computation;
PROVIDED, that when two or more principles are so generally accepted, it shall
mean that set of principles consistent with those in use by the
Company.
Section
1.02 TRUST INDENTURE
ACT.
(a)
Whenever this Indenture refers to a
provision of the Trust Indenture Act of 1939 (the "TIA"), such provision is
incorporated by reference in and made a part of this Indenture.
(b)
Unless otherwise indicated, all
terms used in this Indenture that are defined by the TIA, defined by the TIA
by
reference to another statute or defined by a rule of the
1
Commission
under the TIA shall have the meanings assigned to them in the TIA or such
statute or rule as in force on the date of execution of this
Indenture.
(c)
The Company and the Trustee agree
to comply with the TIA notwithstanding any exemption that may be available
thereunder.
Section
1.03
DEFINITIONS. For purposes of this Indenture, the following terms
shall have the following meanings.
"AUTHENTICATING
AGENT" shall mean any
agent of the Trustee which shall be appointed and acting pursuant to Section
9.15 hereof.
"AUTHORIZED
AGENT" shall mean any agent
of the Company designated as such by an Officers' Certificate delivered to
the
Trustee.
"BOARD
OF DIRECTORS" shall mean the
Board of Directors of the Company or the Executive Committee of such Board
or
any other duly authorized committee of such Board.
"BOARD
RESOLUTION" shall mean a copy of
a resolution certified by the Secretary or an Assistant Secretary of the Company
to have been duly adopted by the Board of Directors and to be in full force
and
effect on the date of such certification, and delivered to the
Trustee.
"BUSINESS
DAY" shall mean any day other
than a day on which banking institutions in New York, New York are authorized
or
required by law to close.
"COMMISSION"
shall mean the United
States Securities and Exchange Commission, or if at any time hereafter the
Commission is not existing or performing the duties now assigned to it under
the
TIA, then the body performing such duties.
"COMPANY"
shall mean the corporation
named as the "Company" in the first paragraph of this Indenture, and its
successors and assigns permitted hereunder.
"COMPANY
ORDER" shall mean a written
order or certificate signed in the name of the Company by one of the Chairman,
the President, any Vice President, the Treasurer or an Assistant Treasurer
of
the Company, and delivered to the Trustee. At the Company's option, a Company
Order may take the form of a supplemental indenture to this
Indenture.
"CORPORATE
TRUST OFFICE OF THE
TRUSTEE", or other similar term, shall mean the designated office of the
Trustee, at which at any particular time its corporate trust business shall
be
administered, which office is presently located at 2 North LaSalle Street,
Suite
1020, Chicago, Illinois 60602, Attention: Corporate Trust
Administration.
"DEBT"
shall mean any outstanding
funded obligations of the Company for money borrowed, whether or not evidenced
by notes, debentures, bonds or other securities, reimbursement obligations
under
letters of credit, or guarantees of any such obligations issued by another
Person.
"DEPOSITARY"
shall mean, unless
otherwise specified in a Company Order pursuant to Section 2.05 hereof, The
Depository Trust Company, New York, New York ("DTC"), or any successor thereto
registered and qualified as a clearing agency under the Securities Exchange
Act
of 1934, or other applicable statute or regulation.
2
"EVENT
OF DEFAULT" shall mean any event
specified in Section 8.01 hereof, continued for the period of time, if any,
and
after the giving of the notice, if any, therein designated.
"GLOBAL
NOTE" shall mean a Note that,
pursuant to Section 2.05 hereof, is delivered to the Depositary or pursuant
to
the instructions of the Depositary and that shall be registered in the name
of
the Depositary or its nominee.
"HOLDER",
"HOLDER OF NOTES" or
"NOTEHOLDER" shall mean any Person in whose name at the time a particular Note
is registered on the books of the Trustee kept for that purpose in accordance
with the terms hereof.
"INDENTURE"
shall mean this instrument
as originally executed or, if amended or supplemented as herein provided, as
so
amended or supplemented, and shall include the terms and provisions of a
particular series of Notes established pursuant to Section 2.05
hereof.
"INTEREST
PAYMENT DATE", when used with
respect to any Note, shall mean (a) each date designated as such for the payment
of interest on such Note specified in a Company Order pursuant to Section 2.05
hereof (provided that the first Interest Payment Date for such Note, the
Original Issue Date of which is after a Regular Record Date but prior to the
respective Interest Payment Date, shall be the Interest Payment Date following
the next succeeding Regular Record Date), (b) a date of Maturity of such Note
and (c) only with respect to defaulted interest on such Note, the date
established by the Trustee for the payment of such defaulted interest pursuant
to Section 2.11 hereof.
"MATURITY,"
when used with respect to
any Note, shall mean the date on which the principal of such Note becomes due
and payable as therein or herein provided, whether at the Stated Maturity
thereof or by declaration of acceleration, redemption or otherwise.
"NOTE"
or "NOTES" has the meaning
stated in the first recital of this Indenture and more particularly means any
note or notes, as the case may be, authenticated and delivered under this
Indenture, including any Global Note.
"OFFICERS'
CERTIFICATE" when used with
respect to the Company, shall mean a certificate signed by one of the Chairman,
the President, any Vice President, and by the Treasurer, any Assistant
Treasurer, or the Secretary or an Assistant Secretary of the Company; provided,
that no individual shall be entitled to sign in more than one
capacity.
"OPINION
OF COUNSEL" shall mean an
opinion in writing signed by legal counsel, who may be an employee of the
Company, meeting the applicable requirements of Section 15.05 hereof. If the
Indenture requires the delivery of an Opinion of Counsel to the Trustee, the
text and substance of which has been previously delivered to the Trustee, the
Company may satisfy such requirement by the delivery by the legal counsel that
delivered such previous Opinion of Counsel of a letter to the Trustee to the
effect that the Trustee may rely on such previous Opinion of Counsel as if
such
Opinion of Counsel was dated and delivered the date delivery of such Opinion
of
Counsel is required. Any Opinion of Counsel may contain reasonable conditions
and qualifications satisfactory to the Trustee.
3
"ORIGINAL
ISSUE DATE" shall mean for a
Note, or portions thereof, the date upon which it, or such portion, was issued
by the Company pursuant to this Indenture and authenticated by the Trustee
(other than in connection with a transfer, exchange or
substitution).
"OUTSTANDING",
when used with reference
to Notes, shall, subject to Section 10.04 hereof, mean, as of any particular
time, all Notes authenticated and delivered by the Trustee under this Indenture,
except:
(a)
Notes theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation;
(b)
Notes, or portions thereof, for the
payment or redemption of which moneys in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent (other than the
Company), provided that if such Notes are to be redeemed prior to the Stated
Maturity thereof, notice of such redemption shall have been given as provided
in
Article III, or provisions satisfactory to the Trustee shall have been made
for
giving such notice;
(c)
Notes, or portions thereof, that
have been paid and discharged or are deemed to have been paid and discharged
pursuant to the provisions of this Indenture; and
(d)
Notes in lieu of or in substitution
for which other Notes shall have been authenticated and delivered, or which
have
been paid, pursuant to Section 2.07 hereof.
"PERIODIC
OFFERING" means an offering
of Notes of a series from time to time the specific terms of which Notes,
including without limitation the rate or rates of interest, if any, thereon,
the
Stated Maturity or Maturities thereof and the redemption provisions, if any,
with respect thereto, are to be determined by the Company or its agents upon
the
issuance of such Notes.
"PERSON"
shall mean any individual,
corporation, company partnership, joint venture, limited liability company,
association, joint-stock company, trust, unincorporated organization or
government or any agent or political subdivision thereof.
"PRINCIPAL
EXECUTIVE OFFICES OF THE
COMPANY" shall mean 1201 Walnut, Kansas City, Missouri 64106,
or such other place where the main corporate offices of the Company are located
as designated in writing to the Trustee by an Authorized Agent.
"REGULAR
RECORD DATE" shall mean,
unless otherwise specified in a Company Order pursuant to Section 2.05 hereof,
for an Interest Payment Date for a particular Note (except for an Interest
Payment Date with respect to defaulted interest on such Note) (a) the fifteenth
day next preceding each Interest Payment Date (unless the Interest Payment
Date
is the date of Maturity of such Note, in which event, the Regular Record Date
shall be as described in clause (b) hereof) and (b) the date of Maturity of
such
Note.
RESPONSIBLE
OFFICER" or "RESPONSIBLE
OFFICERS" when used with respect to the Trustee shall mean one or more of the
following: any assistant vice president, any assistant treasurer, any trust
officer, vice president, or any other officer or vice president 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
4
his
or
her knowledge of and familiarity with the particular subject and who shall
have
direct responsibility for the administration of this Indenture.
"SPECIAL
RECORD DATE" shall mean, with
respect to any Note, the date established by the Trustee in connection with
the
payment of defaulted interest on such Note pursuant to Section 2.11
hereof.
"STATED
MATURITY" shall mean with
respect to any Note, the last date on which principal on such Note becomes
due
and payable as therein or herein provided, other than by declaration of
acceleration or by redemption.
"SUBSIDIARY"
shall mean, as to any
Person, any corporation or other entity of which at least a majority of the
securities or other ownership interest having ordinary voting power (absolutely
or contingently) for the election of directors or other Persons performing
similar functions are at the time owned directly or indirectly by such
Person.
"TRUSTEE"
shall mean The Bank of New
York Trust Company, N.A. and, subject to Article IX, shall also include any
successor Trustee.
"U.S.
GOVERNMENT OBLIGATIONS" shall
mean (i) direct non-callable obligations of, or non-callable obligations
guaranteed as to timely payment of principal and interest by, the United States
of America or obligations of a person controlled or supervised by and acting
as
an agency or instrumentality thereof for the payment of which obligations or
guarantee the full faith and credit of the United States is pledged or (ii)
certificates or receipts representing direct ownership interests in obligations
or specified portions (such as principal or interest) of obligations described
in clause (i) above, which obligations are held by a custodian in safekeeping
in
a manner satisfactory to the Trustee.
ARTICLE
II
FORM,
ISSUE, EXECUTION, REGISTRATION AND
EXCHANGE
OF NOTES
Section
2.01 FORMS
GENERALLY.
(a)
The Notes shall be in such form as
shall be established by a Company Order pursuant to Section 2.05(c) hereof
with
such appropriate insertions, omissions, substitutions and other variations
as
are required or permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon
as may be required to comply with applicable rules of any securities exchange
or
of the Depositary or with applicable law or as may, consistently herewith,
be
determined by the officers executing such Notes, as evidenced by their execution
of such Notes.
(b)
The definitive Notes shall be
typed, printed, lithographed or engraved on steel engraved borders or may be
produced in any other manner, all as determined by the officers executing such
Notes, as evidenced by their execution of such Notes.
Section
2.02 FORM OF TRUSTEE'S
CERTIFICATE OF AUTHENTICATION. The Trustee's certificate of authentication
on
all Notes shall be in substantially the following form:
5
Trustee's
Certificate of Authentication
This
Note is one of the Notes of the
series herein designated, described or provided for in the within-mentioned
Indenture.
The
Bank of New York Trust Company,
N.A., as Trustee
By:
---------------------------
Authorized
Signatory
Section
2.03 AMOUNT UNLIMITED. The
aggregate principal amount of Notes that may be authenticated and delivered
under this Indenture is unlimited, subject to compliance with the provisions
of
this Indenture.
Section
2.04 DENOMINATIONS, DATES,
INTEREST PAYMENT AND RECORD DATES.
(a)
The Notes of each series shall be
issuable in registered form without coupons in denominations of $1,000 and
integral multiples thereof or such other amount or amounts as may be authorized
by the Board of Directors or a Company Order pursuant to a Board Resolution
or
in one or more indentures supplemental hereto; provided, that the principal
amount of a Global Note shall not exceed $500,000,000 unless otherwise permitted
by the Depositary.
(b)
Each Note shall be dated and issued
as of the date of its authentication by the Trustee, and shall bear an Original
Issue Date; each Note issued upon transfer, exchange or substitution of a Note
shall bear the Original Issue Date or Dates of such transferred, exchanged
or
substituted Note, subject to the provisions of Section 2.13(d)
hereof.
(c)
Each Note shall accrue interest
from the later of (1) its Original Issue Date or the date specified in such
Note
and (2) the most recent date to which interest has been paid or duly provided
for with respect to such Note until the principal of such Note is paid or made
available for payment, and interest on each Note shall be payable on each
Interest Payment Date after the Original Issue Date.
(d)
Each Note shall mature on a Stated
Maturity specified in the Note. The principal amount of each outstanding Note
shall be payable on the Stated Maturity date specified therein.
(e)
Unless otherwise specified in a
Company Order pursuant to Section 2.05 hereof, interest on each of the Notes
shall be calculated on the basis of a 360-day year of twelve 30-day months
(and
for any partial periods shall be calculated on the basis of the number of days
elapsed in a 360-day year of twelve 30-day months) and shall be computed at
a
fixed rate until the Stated Maturity of such Notes. The method of computing
interest on any Notes not bearing a fixed rate of interest shall be set forth
in
a Company Order pursuant to Section 2.05 hereof. Unless otherwise specified
in a
Company Order pursuant to Section 2.05 hereof, principal, interest and premium
on the Notes shall be payable in the currency of the United States.
6
(f)
Except as provided in the following
sentence, the Person in whose name any Note is registered at the close of
business on any Regular Record Date or Special Record Date with respect to
an
Interest Payment Date for such Note shall be entitled to receive the interest
payable on such Interest Payment Date notwithstanding the cancellation of such
Note upon any registration of transfer, exchange or substitution of such Note
subsequent to such Regular Record Date or Special Record Date and prior to
such
Interest Payment Date. Any interest payable at Maturity shall be paid to the
Person to whom the principal of such Note is payable.
(g)
So long as the Trustee is the
registrar and paying agent, the Trustee shall, as soon as practicable but no
later than the Regular Record Date preceding each applicable Interest Payment
Date, provide to the Company a list of the principal, interest and premium
to be
paid on Notes on such Interest Payment Date. The Trustee shall assume
responsibility for withholding taxes on interest paid as required by law except
with respect to any Global Note.
Section
2.05 EXECUTION, AUTHENTICATION,
DELIVERY AND DATING.
(a)
The Notes shall be executed on
behalf of the Company by one of its Chairman, President, or any Vice President
and by its Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary of the Company. The signature of any of these officers on the Notes
may be manual or facsimile. Typographical and other minor errors or defects
in
any such signature shall not affect the validity or enforceability of any Note
that has been duly authenticated and delivered by the Trustee.
(b)
Notes bearing the manual or
facsimile signatures of individuals who were at the time of execution the proper
officers of the Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Notes or did not hold such offices at the
date of such Notes.
(c) At
any time and from
time to time after the execution and delivery of this Indenture, the Company
may
deliver Notes of any series executed by the Company to the Trustee for
authentication, together with or preceded by one or more Company Orders for
the
authentication and delivery of such Notes, and the Trustee in accordance with
any such Company Order shall authenticate and make available for delivery such
Notes; provided, however, that, with respect to Notes of a series subject to
a
Periodic Offering, (A) such Company Order may be delivered by the Company to
the
Trustee prior to the delivery to the Trustee of such Notes for authentication
and delivery, (B) the Trustee shall authenticate and deliver Notes of such
series for original issue from time to time, in an aggregate principal amount
not exceeding the aggregate principal amount established for such series, all
pursuant to a further Company Order or pursuant to such procedures acceptable
to
the Trustee as may be specified from time to time by such further Company Order,
(C) the Stated Maturity or Maturities, Original Issue Date or Dates,
interest rate or rates and any other terms of Notes of such series shall be
determined by such further Company Order or pursuant to such procedures and
(D)
if provided for in such procedures, such Company Order may authorize
authentication and delivery pursuant to oral or electronic instructions from
the
Company or its duly authorized agent or agents, which oral instructions shall
be
promptly confirmed in writing. Such Company Order shall specify the following
with respect to each series of Notes: (i) the title of the Notes of such series
(which shall distinguish the Notes of such series from Notes of all other
series) and any limitations on the aggregate principal amount of the Notes
to be
issued as part of such series, (ii) the Original Issue Date for such series,
(iii) the Stated Maturity of Notes of such series, (iv) the interest rate or
rates, or method of calculation of such rate or rates, for such
7
series
and the date from which such interest will accrue, (v) the terms, if any,
regarding the optional or mandatory redemption of such series, including
redemption date or dates of such series, if any, and the price or prices
applicable to such redemption, (vi) whether or not the Notes of such series
shall be issued in whole or in part in the form of one or more Global Notes
and,
if so, the identity of the Depositary for such Global Note or Global Notes
(vii)
the denominations in which the Notes of such series will be issued,
(viii) the maximum annual interest rate, if any, of the Notes permitted for
such
series, (ix) the period or periods within which, the price or prices at which
and the terms and conditions upon which such series may be repaid, in whole
or
in part, at the option of the Holder thereof, (x) the establishment of any
office or agency pursuant to Section 6.02 hereof, (xi) any addition, deletion
or
modification to the Events of Default specified in Section 8.01 hereof, with
respect to the Notes of such series, and any covenants of the Company for the
benefit of the Holders of the Notes of such series set forth in Articles VI
and
XII hereof, (xii) the terms, if any, pursuant to which the Notes of such series
may be converted into or exchanged for shares of capital stock or other
securities of the Company, (xiii) the obligation, if any, of the Company to
redeem, purchase or repay the Notes of such series, including, but not limited
to, pursuant to any sinking fund or analogous provision or at the option of
the
Holder thereof and the period or periods within which, the price or prices
at
which, and the terms and conditions upon which the Notes of such series shall
be
redeemed, purchased or repaid pursuant to such obligation, (xiv) any
remarketing features of the Notes of such series, (xv) any collateral,
security, assurance or guarantee for the Notes of such series, (xvi) if
other than the principal amount thereof, the portion of the principal amount
of
the Notes of such series payable upon declaration of acceleration of the
maturity of the Notes of such series, (xvii) the securities exchange(s), if
any, on which the debt securities will be listed, (xviii) any interest
deferral or extension provisions, (xix) the terms of any warrants the
Company may issue to purchase the Notes of such series, (xx) the right, if
any, of the Company to extend the interest payment periods of such series of
Notes, including the maximum duration of any such extension or extensions,
the
additional interest, if any, payable on such series of Notes and any notice
that
must be given upon the exercise of such right to extend interest payment
periods, and (xxi) any other terms of such series not inconsistent with this
Indenture. With respect to Notes of a series subject to a Periodic Offering,
such Company Order may provide general terms or parameters for Notes of such
series and provide either that the specific terms of particular Notes of such
series shall be specified in a further Company Order or that such terms shall
be
determined by the Company or its agents in accordance with such further Company
Order as contemplated by the proviso of the first sentence of this Section
2.05(c). Prior to authenticating Notes of any series, and in accepting the
additional responsibilities under this Indenture in relation to such Notes,
the
Trustee shall receive from the Company the following at or before the issuance
of such series of Notes, and (subject to Section 9.01 hereof) shall be fully
protected in relying upon, unless and until such documents have been superseded
or revoked prior to such issuance:
(1) A
Board Resolution authorizing such Company Order or Orders and, if the form
of
Notes is established by a Board Resolution or a Company Order pursuant to a
Board Resolution, a copy of such Board Resolution;
(2) At
the option of the Company, either an Opinion of Counsel or a letter addressed
to
the Trustee permitting it to rely on an Opinion of Counsel, stating
substantially the following subject to customary qualifications and
exceptions:
(A) if
the form of such Notes has been established by or pursuant to a Board
Resolution, a Company Order pursuant to a Board Resolution, or
8
in
a
supplemental indenture as permitted by Section 2.01 hereof, that such form
has
been established in conformity with this Indenture;
(B) that
this Indenture has been duly authorized, executed and delivered by the Company
and constitutes a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as may be limited
by
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding at law or in equity)
and by an implied covenant of reasonableness, good faith and fair
dealing;
(C) that
this Indenture is qualified to the extent necessary under the TIA or, if not
so
required, that this Indenture is not required to be qualified under the
TIA;
(D) that
such Notes have been duly authorized and executed by the Company, and when
authenticated by the Trustee and issued by the Company in the manner and subject
to any conditions specified in such Opinion of Counsel, will constitute valid
and binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium and other similar
laws relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding at law or in equity) and by
an
implied covenant of reasonableness, good faith and fair dealing;
(E) that
the issuance of such Notes will not result in any default under this
Indenture;
(F) that
all consents or approvals of the Commission (or any successor agency) under
the
Public Utility Holding Company Act of 1935 and of any other federal or state
regulatory agency required in connection with the Company's execution and
delivery of this Indenture and such Notes have been obtained and are in full
force and effect (except that no statement need be made with respect to state
securities laws); and
(G) that
all conditions that must be met by the Company to issue Notes under this
Indenture have been met.
(3) An
Officers' Certificate stating that (i) the Company is not, and upon the
authentication by the Trustee of such Notes, will not be in default under any
of
the terms or covenants contained in this Indenture and (ii) all conditions
that
must be met by the Company to issue Notes under this Indenture have been
met.
(d)
No Note shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose unless
there appears on such Note a certificate of authentication substantially in
the
form provided for herein executed by the Trustee by the manual signature of
an
authorized officer, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated
and
delivered hereunder and is entitled to the benefits of this
Indenture.
9
The
Trustee shall have the right to decline to authenticate and deliver any Notes
under this Section if the Trustee, being advised by counsel, determines that
such action may not lawfully be taken or if the Trustee in good faith shall
determine that such actions would expose the Trustee to personallliability
to
existing Holders.
(e)
If all Notes of a series are not to
be authenticated and issued at one time in connection with a Periodic Offering,
the Company shall not be required to deliver the Company Order, Board
Resolution, Officers' Certificate and Opinion of Counsel (including any of
the
foregoing that would be otherwise required pursuant to Section 15.05 hereof)
described in Section 2.05(c) hereof at or prior to the authentication of each
Note of such series, if such items are delivered at or prior to the time of
authentication of the first Note of such series to be authenticated and
issued.
Section
2.06 EXCHANGE AND REGISTRATION
OF TRANSFER OF NOTES.
(a)
Subject to Section 2.13 hereof,
Notes of any series may be exchanged for one or more new Notes of the same
series of any authorized denominations and of a like aggregate principal amount,
series and Stated Maturity and having the same terms and Original Issue Date.
Notes to be exchanged shall be surrendered at any of the offices or agencies
to
be maintained pursuant to Section 6.02 hereof, and the Trustee shall
authenticate and deliver in exchange therefor the Note or Notes of such series
which the Noteholder making the exchange shall be entitled to
receive.
(b)
The Trustee shall keep, at one of
said offices or agencies, a register or registers in which, subject to such
reasonable regulations as it may prescribe, the Trustee shall register or cause
to be registered Notes and shall register or cause to be registered the transfer
of Notes as in this Article II provided. Such register shall be in written
form
or in any other form capable of being converted into written form within a
reasonable time. At all reasonable times, such register shall be open for
inspection by the Company. Upon due presentment for registration of transfer
of
any Note at any such office or agency, the Company shall execute and the Trustee
shall register, authenticate and deliver in the name of the transferee or
transferees one or more new Notes of any authorized denominations and of a
like
aggregate principal amount, series and Stated Maturity and having the same
terms
and Original Issue Date.
(c)
All Notes presented for
registration of transfer or for exchange, redemption or payment shall be duly
endorsed by, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company and the Trustee and duly executed
by the Holder or the attorney in fact of such Holder duly authorized in
writing.
(d)
No service charge shall be made for
any exchange or registration of transfer of Notes, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith.
(e)
The Trustee shall not be required
to exchange or register the transfer of any Notes selected, called or being
called for redemption (including Notes, if any, redeemable at the option of
the
Holder provided such Notes are then redeemable at such Holder's option) except,
in the case of any Note to be redeemed in part, the portion thereof not to
be so
redeemed.
(f)
If the principal amount, and
applicable premium, of part, but not all of a Global Note is paid, then upon
surrender to the Trustee of such Global Note, the Company shall
10
execute,
and the Trustee shall authenticate, deliver and register, a Global Note in
an
authorized denomination in aggregate principal amount equal to, and having
the
same terms, Original Issue Date and series as, the unpaid portion of such Global
Note.
Section
2.07 MUTILATED, DESTROYED, LOST
OR STOLEN NOTES.
(a)
If any temporary or definitive Note
shall become mutilated or be destroyed, lost or stolen, the Company shall
execute, and upon its written request the Trustee shall authenticate and
deliver, a new Note of like form and principal amount and having the same terms
and Original Issue Date and bearing a number not contemporaneously outstanding,
in exchange and substitution for the mutilated Note, or in lieu of and in
substitution for the Note so destroyed, lost or stolen. In every case the
applicant for a substituted Note shall furnish to the Company, the Trustee
and
any paying agent or Authenticating Agent such security or indemnity as may
be
required by them to save each of them harmless, and, in every case of
destruction, loss or theft of a Note, the applicant shall also furnish to the
Company and to the Trustee evidence to their satisfaction of the destruction,
loss or theft of such Note and of the ownership thereof.
(b)
The Trustee shall authenticate any
such substituted Note and deliver the same upon the written request or
authorization of any officer of the Company. Upon the issuance of any
substituted Note, the Company may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses connected therewith. If any Note which has
matured, is about to mature, has been redeemed or called for redemption shall
become mutilated or be destroyed, lost or stolen, the Company may, instead
of
issuing a substituted Note, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated Note) if the applicant
for
such payment shall furnish to the Company, the Trustee and any paying agent
or
Authenticating Agent such security or indemnity as may be required by them
to
save each of them harmless and, in case of destruction, loss or theft, evidence
satisfactory to the Company and the Trustee of the destruction, loss or theft
of
such Note and of the ownership thereof.
(c)
Every substituted Note issued
pursuant to this Section 2.07 by virtue of the fact that any Note is mutilated,
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Company, whether or not such destroyed, lost or stolen Note shall be
found at any time, and shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Notes duly issued hereunder.
All Notes shall be held and owned upon the express condition that, to the extent
permitted by law, the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes and shall
preclude to the full extent permitted by applicable law any and all other rights
or remedies with respect to the replacement or payment of negotiable instruments
or other securities without
their
surrender.
Section
2.08 TEMPORARY NOTES. Pending
the preparation of definitive Notes of any series, the Company may execute
and
the Trustee shall authenticate and deliver temporary Notes (printed,
lithographed or otherwise reproduced). Temporary Notes shall be
issuable in any authorized denomination and substantially in the form of the
definitive Notes but with such omissions, insertions and variations as may
be
appropriate for temporary Notes, all as may be determined by the Company. Every
such temporary Note shall be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with the same effect,
as
the definitive Notes. Without unreasonable delay the Company shall execute
and
shall deliver to the Trustee definitive Notes of such series and thereupon
any
or all temporary Notes of such
11
series
shall be surrendered in exchange therefor at the corporate trust office of
the
Trustee, and the Trustee shall authenticate, deliver and register in exchange
for such temporary Notes an equal aggregate principal amount of definitive
Notes
of such series. Such exchange shall be made by the Company at its own expense
and without any charge therefor to the Noteholders. Until so exchanged, the
temporary Notes of such series shall in all respects be entitled to the same
benefits under this Indenture as definitive Notes of such series authenticated
and delivered hereunder.
Section
2.09 CANCELLATION OF NOTES
PAID, ETC. All Notes surrendered for the purpose of payment, redemption,
exchange or registration of transfer shall be surrendered to the Trustee for
cancellation and promptly cancelled by it and no Notes shall be issued in lieu
thereof except as expressly permitted by this Indenture. The Company shall
surrender to the Trustee any Notes so acquired by it and such Notes shall be
cancelled by the Trustee. No Notes shall be authenticated in lieu of or in
exchange for any Notes so cancelled.
Section
2.10 INTEREST RIGHTS PRESERVED.
Each Note delivered under this Indenture upon transfer of or in exchange for
or
in lieu of any other Note shall carry all the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Note, and each such
Note
shall be so dated that neither gain nor loss of interest shall result from
such
transfer, exchange or substitution.
Section
2.11 SPECIAL RECORD DATE. If
and to the extent that the Company fails to make timely payment or provision
for
timely payment of interest on any series of Notes (other than on an Interest
Payment Date that is a Maturity date), that interest shall cease to be payable
to the Persons who were the Noteholders of such series at the applicable Regular
Record Date. In that event, when moneys become available for payment of the
interest, the Trustee shall (a) establish a date of payment of such interest
and
a Special Record Date for the payment of that interest, which Special Record
Date shall be not more than 15 or fewer than 10 days prior to the date of the
proposed payment and (b) mail notice of the date of payment and of the Special
Record Date not fewer than 10 days preceding the Special Record Date to each
Noteholder of such series at the close of business on the 15th day preceding
the
mailing at the address of such Noteholder, as it appeared on the register for
the Notes. On the day so established by the Trustee, the interest shall be
payable to the Holders of the applicable Notes at the close of business on
the
Special Record Date.
Section
2.12 PAYMENT OF NOTES. Payment
of the principal of and interest and premium on all Notes shall be payable
as
follows:
(a)
On or before 10:00 a.m., New York
City time, or such other time as shall be agreed upon between the Trustee and
the Company, of the day on which payment of principal, interest and premium
is
due on any Global Note pursuant to the terms thereof, the Company shall deliver
to the Trustee or the paying agent funds available on such date sufficient
to
make such payment, by wire transfer of immediately available funds or by
instructing the Trustee to withdraw sufficient funds from an account maintained
by the Company with the Trustee or such other method as is acceptable to the
Trustee. On or before 1:30 p.m.,, New York City time, or such other time as
shall be agreed upon between the Trustee and the Depositary, of the day on
which
any payment of interest is due on any Global Note (other than at Maturity),
the
Trustee shall pay to the Depositary such interest in same day funds. On or
before 1:30 p.m., New York City time or such other time as shall be agreed
upon
between the Trustee and the Depositary, of the day on which principal, interest
payable at Maturity and premium, if any, is due on any Global Note, the Trustee
shall deposit with the Depositary the amount equal to the principal,
12
interest
payable at Maturity and premium, if any, by wire transfer into the account
specified by the Depositary. As a condition to the payment, at Maturity, of
any
part of the principal of, interest on, and applicable premium of any Global
Note, the Depositary shall surrender, or cause to be surrendered, such Global
Note to the Trustee, whereupon a new Global Note shall be issued to the
Depositary pursuant to Section 2.06(f) hereof.
(b)
With respect to any Note that is
not a Global Note, principal, applicable premium and interest due at the
Maturity of the Note shall be payable in immediately available funds when due
upon presentation and surrender of such Note at the corporate trust office
of
the Trustee or at the authorized office of any paying agent in the Borough
of
Manhattan, The City and State of New York. Interest on any Note that is not
a
Global Note (other than interest payable at Maturity) shall be paid by check
payable in clearinghouse funds mailed to the Holder thereof at such Holder's
address as it appears on the register; provided that if the Trustee receives
a
written request from any Holder of Notes, the aggregate principal amount of
which having the same Interest Payment Date equals or exceeds $10,000,000,
on or
before the applicable Regular Record Date for such Interest Payment Date,
interest on such Note shall be paid by wire transfer of immediately available
funds to a bank within the continental United States designated by such Holder
in its request or by direct deposit into the account of such Holder designated
by such Holder in its request if such account is maintained with the Trustee
or
any paying agent.
Section
2.13 NOTES ISSUABLE IN THE FORM
OF A GLOBAL NOTE.
(a)
If the Company shall establish
pursuant to Section 2.05 hereof that the Notes of a particular series are to
be
issued in the form of one or more Global Notes, then the Company shall execute
and the Trustee shall, in accordance with Section 2.05 hereof and the Company
Order delivered to the Trustee thereunder, authenticate and deliver such Global
Note or Notes, which, unless otherwise specified in such Company Order, (i)
shall represent, shall be denominated in an amount equal to the aggregate
principal amount of, and shall have the same terms as, the outstanding Notes
of
such series to be represented by such Global Note or Notes, (ii) shall be
registered in the name of the Depositary or its nominee, (iii) shall be
delivered by the Trustee to the Depositary or pursuant to the Depositary's
instruction and (iv) shall bear a legend substantially to the following effect:
"This Note is a Global Note registered in the name of the Depositary (referred
to herein) or a nominee thereof and, unless and until it is exchanged in whole
for the individual Notes represented hereby as provided in the Indenture
referred to below, this Global Note may not be transferred except as a whole
by
the Depositary to a nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary or by the Depositary
or
any such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless this Global Note is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York, New York), to the
Trustee for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment is made to Cede & Co., any transfer, pledge or other use hereof
for value or otherwise by or to any person is wrongful since the registered
owner hereof, Cede & Co., has an interest herein" or such other legend as
may be required by the rules and regulations of the Depositary.
(b)
(i)
If at any time the Depositary for a Global Note notifies the Company that
it is
unwilling or unable to continue as Depositary for such Global Note or if
at any
time the Depositary for the
Global
Note shall no longer be eligible or in good standing under the Securities
Exchange Act of 1934
13
or
other applicable statute or regulation, the Company shall appoint a successor
Depositary with respect to such Global Note. If a successor Depositary for
such
Global Note is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company's
election pursuant to Section 2.05(c)(vi) hereof shall no longer be effective
with respect to the series of Notes evidenced by such Global Note and the
Company shall execute, and the Trustee, upon receipt of a Company Order for
the
authentication and delivery of individual Notes of such series in exchange
for
such Global Note, shall authenticate and deliver, individual Notes of such
series of like tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of such Global Note in exchange for
such
Global Note. The Trustee shall not be charged with knowledge or notice of
the
ineligibility of a Depositary unless a Responsible Officer shall have actual
knowledge thereof.
(ii) (A) The
Company may at any time and in its sole discretion determine that all
outstanding (but not less than all) Notes of a series issued or issuable in
the
form of one or
more
Global Notes shall no longer be represented by such Global Note or Notes. In
such event the Company shall execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of individual Notes in exchange for
such Global Note, shall authenticate and deliver individual Notes of like tenor
and terms in definitive form in an aggregate principal amount equal to the
principal amount of such Global Note or Notes in exchange for such Global Note
or Notes.
(B) Within
seven days after the occurrence of an Event of Default with respect to any
series of Global Notes, the Company shall execute, and the Trustee shall
authenticate and deliver, Notes of such series in definitive registered form
in
any authorized denominations and in aggregate principal amount equal to the
principal amount of such Global Notes in exchange for such Global
Notes.
(iii) In
any exchange provided for in any of the preceding two paragraphs, the Company
will execute and the Trustee will authenticate and deliver individual Notes
in
definitive registered form in authorized denominations. Upon the exchange of
a
Global Note for individual Notes, such Global Note shall be cancelled by the
Trustee. Notes issued in exchange for a Global Note pursuant to this Section
shall be registered in such names and in such authorized denominations as the
Depositary for such Global Note, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Notes to the Depositary for delivery to the persons in whose
names such Notes are so registered, or if the Depositary shall refuse or be
unable to deliver such Notes, the Trustee shall deliver such Notes to the
persons in whose names such Notes are registered, unless otherwise agreed upon
between the Trustee and the Company, in which event the Company shall cause
the
Notes to be delivered to the persons in whose names such Notes are
registered.
14
(c)
Neither the Company, the Trustee,
any Authenticating Agent nor any paying agent shall have any responsibility
or
liability for any aspect of the records relating to, or payments made on account
of, beneficial ownership interests of a Global Note or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interest.
(d)
Pursuant to the provisions of this
subsection, at the option of the Trustee (subject to Section 2.04(a) hereof)
and
upon 30 days' written notice to the Depositary but not prior to the first
Interest Payment Date of the respective Global Notes, the Depositary shall
be
required to surrender any two or more Global Notes which have identical terms,
including, without limitation, identical maturities, interest rates and
redemption provisions (but which may have differing Original Issue Dates) to
the
Trustee, and the Company shall execute and the Trustee shall authenticate and
deliver to, or at the direction of, the Depositary a Global Note in principal
amount equal to the aggregate principal amount of, and with all terms identical
to, the Global Notes surrendered thereto and that shall indicate each applicable
Original Issue Date and the principal amount applicable to each such Original
Issue Date. The exchange contemplated in this subsection shall be consummated
at
least 30 days prior to any Interest Payment Date applicable to any of the Global
Notes surrendered to the Trustee. Upon any exchange of any Global Note with
two
or more Original Issue Dates, whether pursuant to this Section or pursuant
to
Section 2.06 or Section 3.03 hereof, the aggregate principal amount of the
Notes
with a particular Original Issue Date shall be the same before and after such
exchange, after giving effect to any retirement of Notes and the Original Issue
Dates applicable to such Notes occurring in connection with such
exchange.
Section
2.14 CUSIP AND ISIN NUMBERS.
The Company in issuing Notes may use "CUSIP" or "ISIN" numbers (if then
generally in use) and, if so used, the Trustee shall use "CUSIP" or "ISIN"
numbers in notices of redemption as a convenience to holders of Notes; provided,
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or contained in
any
notice of redemption and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption shall
not
be affected by any defect in or omission of such numbers. The Company shall
promptly notify the Trustee of any change in the "CUSIP" or "ISIN"
numbers.
Section
2.15 EXTENSION OF INTEREST
PAYMENT PERIODS. The Company shall have the right at any time, so
long as the Company is not in default in the payment of interest on the Notes
of
any series hereunder, to extend interest payment periods on all Notes of one
or
more series, if so specified as contemplated by Section 2.05 with respect to
such Notes and upon such terms as may be specified as contemplated by Section
2.05 with respect to such Notes.
ARTICLE
III
REDEMPTION
OF NOTES
Section
3.01 APPLICABILITY OF
ARTICLE. Those Notes of any series that are, by their terms,
redeemable prior to their Stated Maturity at the option of the Company, may
be
redeemed by the Company at such times, in such amounts and at such prices as
may
be specified therein and in accordance with the provisions of this Article
III.
15
Section
3.02 NOTICE OF REDEMPTION;
SELECTION OF NOTES.
(a)
The election of the Company to
redeem any Notes shall be evidenced by a Board Resolution which shall be given
with notice of redemption to the Trustee at least 45 days (or such shorter
period acceptable to the Trustee in its sole discretion) prior to the redemption
date specified in such notice.
(b)
Notice of redemption to each Holder
of Notes to be redeemed as a whole or in part shall be given by the Trustee,
in
the manner provided in Section 15.10 hereof, no less than 30 or more than 60
days prior to the date fixed for redemption. Any notice which is given in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not the Noteholder receives the notice. In any case, failure duly
to
give such notice, or any defect in such notice, to the Holder of any Note
designated for redemption as a whole or in part shall not affect the validity
of
the proceedings for the redemption of any other Note.
(c)
Each such notice shall identify the
Notes to be redeemed (including "CUSIP" or "ISIN" numbers) and shall specify
the
date fixed for redemption, the places of redemption and the redemption price
(or
the method for calculation thereof) at which such Notes are to be redeemed,
and
shall state that (subject to subsection (e) of this section) payment of the
redemption price of such Notes or portion thereof to be redeemed will be made
upon surrender of such Notes at such places of redemption, that interest accrued
to the date fixed for redemption will be paid as specified in such notice,
and
that from and after such date interest thereon shall cease to accrue. If less
than all of a series of Notes having the same terms are to be redeemed, the
notice shall specify the Notes or portions thereof to be redeemed. If any Note
is to be redeemed in part only, the notice which relates to such Note shall
state the portion of the principal amount thereof to be redeemed, and shall
state that, upon surrender of such Note, a new Note or Notes having the same
terms in aggregate principal amount equal to the unredeemed portion thereof
will
be issued.
(d)
Unless otherwise provided by a
Company Order under Section 2.05 hereof, if less than all of a series of Notes
is to be redeemed, the Trustee shall select in such manner as it shall deem
appropriate and fair in its discretion the particular Notes to be redeemed
in
whole or in part and shall hereafter promptly notify the Company in writing
of
the Notes so to be redeemed. If less than all of a series of Notes represented
by a Global Note is to be redeemed, the particular Notes or portions thereof
of
such series to be redeemed shall be selected by the Depositary for such series
of Notes in such manner as the Depositary shall determine. Notes shall be
redeemed only in denominations of $1,000, or such other denominations authorized
by a Company Order pursuant to Section 2.05 hereof, provided that any remaining
principal amount of a Note redeemed in part shall be a denomination authorized
under this Indenture.
(e)
If at the time of the mailing of
any notice of redemption at the option of the Company, the Company shall not
have irrevocably directed the Trustee to apply funds then on deposit with the
Trustee or held by it and available to be used for the redemption of Notes
to
redeem all the Notes called for redemption, such notice, at the election of
the
Company, may state that it is conditional and subject to the receipt of the
redemption moneys by the Trustee on or before the date fixed for redemption
and
that such notice shall be of no force and effect unless such moneys are so
received on or before such date.
Section
3.03 PAYMENT OF NOTES ON
REDEMPTION; DEPOSIT OF REDEMPTION PRICE.
16
(a)
If notice of redemption for any
Notes shall have been given as provided in Section 3.02 hereof and such notice
shall not contain the language permitted at the Company's option under Section
3.02(e) hereof, such Notes or portions of Notes called for redemption shall
become due and payable on the date and at the places stated in such notice
at
the applicable redemption price, together with interest accrued to the date
fixed for redemption of such Notes. Interest on the Notes or portions thereof
so
called for redemption shall cease to accrue and such Notes or portions thereof
shall be deemed not to be entitled to any benefit under this Indenture except
to
receive payment of the redemption price together with interest accrued thereon
to the date fixed for redemption. Upon presentation and surrender of
such Notes at the place of payment specified in such notice, such Notes or
the
specified portions thereof shall be paid and redeemed at the applicable
redemption price, together with interest accrued thereon to the date fixed
for
redemption.
(b)
If notice of redemption shall have
been given as provided in Section 3.02 hereof and such notice shall contain
the
language permitted at the Company's option under Section 3.02(e) hereof, such
Notes or portions of Notes called for redemption shall become due and payable
on
the date and at the places stated in such notice at the applicable redemption
price, together with interest accrued to the date fixed for redemption of such
Notes, and interest on the Notes or portions thereof so called for redemption
shall cease to accrue and such Notes or portions thereof shall be deemed not
to
be entitled to any benefit under this Indenture except to receive payment of
the
redemption price together with interest accrued thereon to the date fixed for
redemption; provided that, in each case, the Company shall have deposited with
the Trustee or a paying agent on or prior to 11:00 a.m. New York City time
on
such redemption date an amount sufficient to pay the redemption price together
with interest accrued to the date fixed for redemption. Upon the Company making
such deposit and, upon presentation and surrender of such Notes at such a place
of payment in such notice specified, such Notes or the specified portions
thereof shall be paid and redeemed at the applicable redemption price, together
with interest accrued thereon to the date fixed for redemption. If the Company
shall not make such deposit on or prior to the redemption date, the notice
of
redemption shall be of no force and effect and the principal on such Notes
or
specified portions thereof shall continue to bear interest as if the notice
of
redemption had not been given.
(c)
No notice of redemption of Notes
shall be mailed during the continuance of any Event of Default, except (1)
that,
when notice of redemption of any Notes has been mailed, the Company shall redeem
such Notes but only if funds sufficient for that purpose have prior to the
occurrence of such Event of Default been deposited with the Trustee or a paying
agent for such purpose, and (2) that notices of redemption of all outstanding
Notes may be given during the continuance of an Event of Default.
(d)
Upon surrender of any Note redeemed
in part only, the Company shall execute, and the Trustee shall authenticate,
deliver and register, a new Note or Notes of authorized denominations in
aggregate principal amount equal to, and having the same terms, Original Issue
Date or Dates and series as, the unredeemed portion of the Note so
surrendered.
ARTICLE
IV
SINKING
FUNDS
Section
4.01 APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund for
the
retirement of the Notes of any series, except as otherwise specified as
contemplated by Section 2.05(c) hereof for Notes of such series.
17
The
minimum amount of any sinking fund
payment provided for by the terms of Notes of any series is herein referred
to
as a "mandatory sinking fund payment", and any payment in excess of such minimum
amount provided for by the terms of Notes of any series is herein referred
to as
an "optional sinking fund payment". If provided for by the terms of Notes of
any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 4.02 hereof. Each sinking fund payment shall be applied
to the redemption of Notes of the series in respect of which it was made as
provided for by the terms of such Notes.
Section
4.02 SATISFACTION OF SINKING
FUND PAYMENTS WITH NOTES. The Company (a) may deliver Outstanding Notes (other
than any previously called for redemption) of a series in respect of which
a
mandatory sinking fund payment is to be made and (b) may apply as a credit
Notes
of such series which have been redeemed either at the election of the Company
pursuant to the terms of such Notes or through the application of permitted
optional sinking fund payments pursuant to the terms of such Notes, in each
case
in satisfaction of all or any part of such mandatory sinking fund payment;
provided, however, that no Notes shall be applied in satisfaction of a mandatory
sinking fund payment if such Notes shall have been previously so applied. Notes
so applied shall be received and credited for such purpose by the Trustee at
the
redemption price specified in such Notes for redemption through operation of
the
sinking fund and the amount of such mandatory sinking fund payment shall be
reduced accordingly.
Section
4.03 REDEMPTION OF NOTES FOR
SINKING FUND. Not less than 45 days prior to each sinking fund payment date
for
the Notes of any series, the Company shall deliver to the Trustee an Officers'
Certificate specifying:
(a)
the amount of the next succeeding
mandatory sinking fund payment for such series;
(b)
the amount, if any, of the optional
sinking fund payment to be made together with such mandatory sinking fund
payment;
(c)
the aggregate sinking fund
payment;
(d)
the portion, if any, of such
aggregate sinking fund payment which is to be satisfied by the payment of cash;
and
(e)
the portion, if any, of such
aggregate sinking fund payment which is to be satisfied by delivering and
crediting Notes of such series pursuant to Section 4.02 hereof and stating
the
basis for such credit and that such Notes have not previously been so
credited.
The
Company shall also deliver to the Trustee any Notes to be so delivered. If
the
Company shall not deliver such Officers' Certificate, the next succeeding
sinking fund payment for such series shall be made entirely in cash in the
amount of the mandatory sinking fund payment. Not less than 30 days before
each
such sinking fund payment date the Trustee shall select the Notes to be redeemed
upon such sinking fund payment date in the manner specified in Section 3.02(d)
hereof and cause notice of the redemption thereof to be given in the name of
and
at the expense of the Company in the manner provided in Section 3.02
hereof. Such notice having been duly given, the redemption of such
Notes shall be made upon the terms and in the manner stated in Section 3.03
hereof.
18
ARTICLE
V
SATISFACTION
AND DISCHARGE; UNCLAIMED MONEYS
Section
5.01 SATISFACTION AND DISCHARGE
OF INDENTURE. This Indenture shall upon the request of the Company cease to
be
of further effect with respect to the Notes of any series (except as to any
surviving rights of registration of transfer or exchange of Notes of such series
herein expressly provided for), and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture, when:
(a)
either:
(i) all
Notes of such series previously authenticated and delivered (other than Notes
of
such series which have been destroyed, lost or stolen and which have been
replaced or paid) have been delivered to the Trustee for cancellation;
or
(ii) all
the Notes of such series not previously delivered to the Trustee for
cancellation have become due and payable (whether at stated maturity, early
redemption or otherwise), and the Company has deposited, or caused to be
deposited, irrevocably with the Trustee as funds in trust solely for the benefit
of the Holders of the Notes of such series an amount in cash sufficient to
pay
principal of, premium, if any, and interest on all outstanding Notes of such
series;
(b)
the Company has paid or caused to
be paid all other sums payable hereunder by the Company with respect to the
Notes of such series; and
(c)
the Company has delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent herein provided for relating to the satisfaction and
discharge of this Indenture with respect to the Notes of such series have been
complied with.
Notwithstanding
the satisfaction and discharge of this Indenture with respect to the Notes
of
any or all series, the obligations of the Company to the Trustee under Section
9.06 hereof shall survive, and, if money will have been deposited with the
Trustee pursuant to subclause (ii) of clause (a) of this Section 5.01, the
obligations of the Trustee under Sections 5.02 and 5.05 hereof shall
survive.
Section
5.02 APPLICATION OF TRUST
FUNDS; INDEMNIFICATION.
(a)
Subject to the provisions of
Section 5.05 hereof, all money and U.S. Government Obligations deposited with
the Trustee pursuant to Section 5.01, 5.03 or 5.04 hereof and all money received
by the Trustee in respect of U.S. Government Obligations deposited with the
Trustee pursuant to Sections 5.01,5.03 or 5.04 hereof, shall be held in trust
and applied by it, in accordance with the provisions of the Notes of any
particular series and this Indenture, to the payment, either directly or through
any paying agent as the Trustee may determine, to the persons entitled thereto,
of the principal, premium, if any, and interest for whose payment such money
has
been deposited with or received by the Trustee.
(b)
The Company shall pay and shall
indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against U.S. Government Obligations deposited
19
pursuant
to Sections 5.01, 5.03 or 5.04 hereof or the interest, premium, if any, and
principal received in respect of such obligations other than any payable by
or
on behalf of Holders.
(c)
The Trustee shall deliver or pay to
the Company from time to time upon the request of the Company any U.S.
Government Obligations or money held by it as provided in Sections 5.01, 5.03
or
5.04 hereof which, in the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written certification thereof
delivered to the Trustee, are then in excess of the amount thereof which then
would have been required to be deposited for the purpose for which such U.S.
Government Obligations or money were deposited or received. This provision
shall
not authorize the sale by the Trustee of any U.S. Government Obligations held
under this Indenture.
Section
5.03 LEGAL DEFEASANCE. The
Company shall be deemed to have been discharged from its obligations with
respect to all of the outstanding Notes of any series on the day after the
date
of the deposit referred to in subparagraph (i) hereof, and the provisions of
this Indenture, as it relates to the outstanding Notes of such series, shall
no
longer be in effect (and the Trustee, at the expense of the Company, shall,
upon
the request of the Company, execute proper instruments acknowledging the same),
except as to:
(a)
the rights of Holders of the Notes
of such series to receive, solely from the trust funds described in subparagraph
(i) below, payments of the principal of, premium, if any, or interest on the
outstanding Notes of such series on the date such payments are due;
(b)
the Company's obligations with
respect to the Notes of such series under Sections 2.06, 2.07, 2.13, 6.02 and
6.04 hereof; and
(c)
the rights, powers, trust and
immunities of the Trustee hereunder and the duties of the Trustee under Section
5.02 hereof and the duty of the Trustee to authenticate Notes of such series
issued on registration of transfer of exchange; provided that the following
conditions shall have been satisfied:
(i) the
Company shall have deposited, or caused to be deposited, irrevocably with the
Trustee as funds in trust for the purpose of making the following payments,
specifically pledged as security for and dedicated solely to the benefit of
the
Holders of the Notes of such series, cash in U.S. dollars and/or U.S. Government
Obligations which through the payment of interest and principal in respect
thereof, in accordance with their terms, will provide (without reinvestment),
not later than one day before the due date of any payment of money, an amount
in
cash, sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the
Trustee, to pay principal of, premium, if any, and interest on all the Notes
of
such series on the dates such payments of principal, premium, if any, or
interest are due to maturity or redemption;
(ii) no
Event of Default or event which with the giving of notice or lapse of time
or
both would become an Event of Default with respect to the Notes of such series
shall have occurred and be continuing on the date of such deposit and 91 days
shall have passed after the deposit has been made, and, during such 91 day
period, no Default with respect to the Notes of such series specified in Section
8.01(a)(5) or (6) hereof with respect to the Company occurs which is continuing
at the end of such period;
20
(iii) the
Company shall have delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel to the effect that (A) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling, or (B)
since
the date of execution of this Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of the Notes
of
such series will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit, defeasance and discharge and will be
subject to federal income tax in the same amounts, in the same manner and at
the
same times as would have been the case if such deposit, defeasance and discharge
had not occurred;
(iv) the
Company shall have delivered to the Trustee an Officers' Certificate stating
that the deposit was not made by the Company with the intent of preferring
the
Holders of the Notes of such series over any other creditors of the Company
or
with the intent of defeating, hindering, delaying or defrauding any other
creditors of the Company;
(v) such
deposit shall not cause the Trustee to have a conflicting interest within the
meaning of the TIA with respect to any securities of the Company or result
in
the trust arising from such deposit constituting an "investment company" (as
defined in the Investment Company Act of 1940, as amended); and
(vi) the
Company shall have delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that all conditions precedent relating to
the
defeasance contemplated by this Section 5.03 have been complied
with.
Subject
to compliance with this Article V, the Company may exercise its option under
this Section 5.03 notwithstanding the prior exercise of its option under Section
5.04 with respect to the Notes of any series. Following a defeasance, payment
of
the Notes of such series may not be accelerated because of an Event of
Default.
Section
5.04 COVENANT DEFEASANCE. On
and after the day after the date of the deposit referred to in subparagraph
(a)
hereof, the Company may omit to comply with any term, provision or condition
set
forth under Section 6.05 and Article XII hereof as well as any additional
covenants contained in a supplemental indenture hereto (and the failure to
comply with any such provisions shall not constitute a Default or Event of
Default under Section 8.01 hereof) and the occurrence of any event described
in
clause (3) and (4) of Section 8.01(a) hereof shall not constitute a Default
or
Event of Default hereunder, with respect to the Notes of any series, provided
that the following conditions shall have been satisfied:
(a)
with reference to this Section
5.04, the Company has deposited, or caused to be deposited, irrevocably (except
as provided in Section 5.05 hereof) with the Trustee as funds in trust,
specifically pledged as security for, and dedicated solely to, the benefit
of
the Holders of the Notes of such series, cash in U.S. dollars and/or U.S.
Government Obligations which through the payment of principal and interest
in
respect thereof, in accordance with their terms, will provide (without
reinvestment), not later than one day before the due date of any payment of
money, an amount in cash, sufficient, in the opinion of a nationally recognized
firm of
21
independent
certified public accountants expressed in a written certification thereof
delivered to the Trustee, to pay principal, premium, if any, and interest on
all
the Notes of such series on the dates such payments of principal, premium,
if
any, and interest are due to maturity or redemption;
(b)
no Event of Default or event which
with the giving of notice or lapse of time or both would become an Event of
Default with respect to the Notes of such series shall have occurred and be
continuing on the date of such deposit and 91 days shall have passed after
the
deposit has been made, and, during such 91 day period, no Default with respect
to the Notes of such series specified in Section 8.01(a)(5) or (6) hereof with
respect to the Company occurs which is continuing at the end of such
period;
(c)
the Company shall have delivered to
the Trustee an Opinion of Counsel confirming that Holders of the Notes of such
series will not recognize income, gain or loss for federal income tax purposes
as a result of such deposit and defeasance and will be subject to federal income
tax in the same amounts, in the same manner and at the same times as would
have
been the case if such deposit and defeasance had not occurred;
(d)
the Company shall have delivered to
the Trustee an Officers' Certificate stating the deposit was not made by the
Company with the intent of preferring the Holders of the Notes of such series
over any other creditors of the Company or with the intent of defeating,
hindering, delaying or defrauding any other creditors of the
Company;
(e)
such deposit shall not cause the
Trustee to have a conflicting interest within the meaning of the TIA with
respect to any securities of the Company or result in the trust arising from
such deposit constituting an "investment company" (as defined in the Investment
Company Act of 1940, as amended);
(f)
the Company shall have delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating to the defeasance
contemplated by this Section 5.04 have been complied with; and
(g)
following a covenant defeasance,
payment of the Notes of any series may not be accelerated because of an Event
of
Default specified in Sections 8.01(a)(5) and (6) or by reference to Sections
6.05 and 8.01(a)(3) and (4) and Article XII hereof.
Section
5.05 REPAYMENT TO COMPANY. The
Trustee and the paying agent shall pay to the Company upon request any money
held by them for the payment of principal, premium, if any, or interest that
remains unclaimed for two years after the date upon which such payment shall
have become due. After payment to the Company, Holders of the Notes of such
series entitled to the money must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another
Person.
ARTICLE
VI
PARTICULAR
COVENANTS OF THE COMPANY
Section
6.01 PAYMENT OF PRINCIPAL AND
INTEREST. The Company covenants and agrees for the benefit of the Holders of
the
Notes of any series that it will duly and punctually pay or cause to be paid
the
principal of and any premium and interest, if any, on, such Notes at
22
the
places, at the respective times and in the manner provided in such Notes or
in
this Indenture.
Section
6.02 OFFICES FOR PAYMENTS, ETC.
So long as the Notes of any series are outstanding hereunder, the Company will
maintain an office or agency where the Notes of such series may be presented
for
payment, for exchange as in this Indenture provided, for registration of
transfer as in this Indenture provided, and where notices and demands to or
upon
the Company in respect of the securities under this Indenture may be
served. The Principal Executive Offices of the Company will be such
office or agency unless the Company shall maintain some other office or agency
for such purposes and shall give the Trustee and the registered holders of
the
securities written notice of the location thereof. If the Company
shall fail to give such notice of the location or of any change in the location
of any of the above offices or agencies, presentations and demands may be made
and notices may be served at the Corporate Trust Office of the Trustee, and,
in
such event, the Trustee shall act as the Company's agent to receive all such
presentations, surrenders, notices and demands.
The
Company may from time to time
designate one or more additional offices or agencies where the Notes of any
series may be presented for payment, for exchange as in this Indenture provided
and for registration of transfer as in this Indenture provided, and the Company
may from time to time rescind any such designation; provided, however, that
no
such designation or rescission shall in any manner relieve the Company of its
obligation to maintain any office or agency provided for in this Section. The
Company will give to the Trustee prompt written notice of any such designation
or rescission thereof and of any change in the location of any such other office
or agency.
Section
6.03 APPOINTMENT TO FILL A
VACANCY IN OFFICE OF TRUSTEE. The Company, whenever necessary to avoid or fill
a
vacancy in the office of Trustee, will appoint, in the manner provided in
Section 9.11, a Trustee, so that there shall at all times be a Trustee
hereunder.
Section
6.04 PROVISION AS TO PAYING
AGENT. The Trustee shall be the paying agent for the Notes and, at the option
of
the Company, the Company may appoint additional paying agents (including without
limitation itself or its Subsidiary unless an Event of Default has occurred
and
is continuing). Whenever the Company shall appoint a paying agent other than
the
Trustee with respect to the Notes, it will cause such paying agent to execute
and deliver to the Trustee an instrument in which such agent shall agree with
the Trustee, subject to the provisions of this Section:
(a)
that such paying agent will hold
all sums received by it as such agent for the payment of the principal of or
interest, if any, on the Notes (whether such sums have been paid to it by the
Company or by any other obligor on the Notes) in trust for the benefit of the
Holders of the Notes, or of the Trustee until such sums shall be paid to such
Holders or otherwise disposed of as herein provided;
(b)
that such paying agent will give
the Trustee notice of any failure by the Company (or by any other obligor on
Notes) to make any payment of the principal of, premium if any, or interest
on
the Notes when the same shall be due and payable; and
(c)
that such paying agent will at any
time during the continuance of any such failure, upon the written request of
the
Trustee, forthwith pay to the Trustee all sums so held in trust by such paying
agent.
23
The
Company will, on or prior to each
due date of the principal of and any premium, if any, or interest on the Notes,
deposit with the paying agent a sum sufficient to pay such principal and any
premium or interest so becoming due, such sum to be held in trust for the
benefit of the Holders of the Notes entitled to such principal of and any
premium or interest, and (unless such paying agent is the Trustee) the Company
will promptly notify the Trustee of any failure to take such
action.
If
the Company or its Subsidiary shall
act as its own paying agent with respect to the Notes, it will, on or before
each due date of the principal of (and premium, if any) or interest, if any,
on
the Notes, set aside, segregate and hold in trust for the benefit of the Holders
of the Notes, a sum sufficient to pay such principal (and premium, if any)
or
interest, if any, so becoming due until such sums shall be paid to such Holders
or otherwise disposed of as herein provided. The Company will promptly notify
the Trustee of any failure to take such action.
The
Company may at any time pay or
cause to be paid to the Trustee all sums held in trust by it or any paying
agent
hereunder, as required by this Section, such sums to be held by the Trustee
upon
the trusts herein contained, and, upon such payment by any paying agent to
the
Trustee, such paying agent shall be released from all further liability with
respect to such money.
Anything
in this Section to the
contrary notwithstanding, the agreement to hold sums in trust as provided in
this Section is subject to the provisions of Sections 5.03 and
5.04.
Section
6.05 CORPORATE EXISTENCE.
Subject to the rights of the Company under Article XII, the Company shall do
or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and the rights (charter and statutory) and
franchises of the Company; provided, however, that the Company shall not be
required to preserve any such right or franchise if, in the judgment of the
Company, the preservation thereof is no longer desirable in the conduct of
the
business of the Company.
Section
6.06 CERTIFICATES AND NOTICE TO
TRUSTEE. The Company shall, on or before June 30 of each year, commencing
in 2007 deliver to the Trustee a certificate from its principal executive
officer, principal financial officer or principal accounting officer covering
the preceding calendar year and stating whether or not, to the knowledge of
such
Person, the Company has complied with all conditions and covenants under this
Indenture, and, if not, describing in reasonable detail any failure by the
Company to comply with any such conditions or covenants. For purposes of this
Section, compliance shall be determined without regard to any period of grace
or
requirement of notice provided under this Indenture.
ARTICLE
VII
NOTEHOLDER
LISTS AND REPORTS BY
THE
COMPANY AND THE TRUSTEE
Section
7.01 COMPANY TO FURNISH
NOTEHOLDER LISTS. The Company and any other obligor on the Notes shall furnish
or cause to be furnished to the Trustee a list in such form as the Trustee
may
reasonably require of the names and addresses of the Holders of the
Notes:
24
(a)
semi-annually and not more than 15
days after each Regular Record Date for each Interest Payment Date that is
not a
Maturity date, as of such Regular Record Date, and such list need not include
information received after such date; and
(b)
at such other times as the Trustee
may request in writing, within 30 days after receipt by the Company of any
such
request, as of a date not more than 15 days prior to the time such information
is furnished, and such list need not include information received after such
date; provided that if and so long as the Trustee shall be the registrar for
the
Notes, such list shall not be required to be furnished.
Section
7.02 PRESERVATION AND
DISCLOSURE OF NOTEHOLDER LISTS.
(a)
The Trustee shall preserve, in as
current a form as is reasonably practicable, all information as to the names
and
addresses of the Holders of the Notes (i) contained in the most recent lists
furnished to it as provided in Section 7.01, (ii) received by it in the capacity
of registrar for the Notes, if so acting, and (iii) filed with it within the
two
preceding years pursuant to Section 7.04(d)(2). The Trustee may destroy any
list
furnished to it as provided in Section 7.01 upon receipt of a new list so
furnished.
(b)
In case three or more Holders of
Notes (hereinafter referred to as "applicants") apply in writing to the Trustee
and furnish to the Trustee reasonable proof that each such applicant has owned
a
Note for a period of at least six months preceding the date of such application,
and such application states that the applicants desire to communicate with
other
Holders of Notes with respect to their rights under this Indenture or under
the
Notes and such application is accompanied by a copy of the form of proxy or
other communication which such applicants propose to transmit, then the Trustee
shall, within five Business Days after the receipt of such application, at
its
election, either
(i) afford
to such applicants access to the information preserved at the time by the
Trustee in accordance with the provisions of subsection (a) of this Section;
or
(ii) inform
such applicants as to the approximate number of Holders whose names and
addresses appear in the information preserved at the time by the Trustee, in
accordance with the provisions of such subsection (a) and as to the approximate
cost of mailing to such Holders the form of proxy or other communication, if
any, specified in such application.
If
the Trustee shall elect not to
afford to such applicants access to such information, the Trustee shall, upon
the written request of such applicants, mail to each Holder of Notes, whose
name
and address appears in the information preserved at the time by the Trustee
in
accordance with the provisions of such subsection (a) a copy of the form of
proxy or other communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender the Trustee shall mail to such
applicants and file with the Commission, together with a copy of the material to
be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the Holders
or
would be in violation of applicable law. Such written statement shall specify
the basis of such opinion. If the Commission, after opportunity for a hearing
upon the objections specified in the written statement so filed, shall enter
an
order refusing to sustain any of such objections or if, after the entry of
an
order sustaining one or more
25
of
such
objections, the Commission shall find, after notice and opportunity for hearing,
that all the objections so sustained have been met, and shall enter an order
so
declaring, the Trustee shall mail copies of such material to all such Holders
with reasonable promptness after the entry of such order and the renewal of
such
tender; otherwise the Trustee shall be relieved of any obligation or duty to
such applicants respecting their application.
(c)
Each and every Holder of a Note, by
receiving and holding the same, agrees with the Company and the Trustee that
neither the Company nor the Trustee nor any agent of the Company or the Trustee
shall be held accountable by reason of the disclosure of any such information
as
to the names and addresses of the Holders of Notes in accordance with the
provisions of subsection (b) of this Section, regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
such subsection (b).
Section
7.03 REPORTS BY THE COMPANY.
The Company shall:
(a)
file with the Trustee, within 15
days after the Company is required to file the same with the Commission, copies
of the annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may from
time
to time by rules and regulations prescribe) which the Company may be required
to
file with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections, then
it
will file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities exchange
as
may be prescribed from time to time in such rules and regulations;
(b)
file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such additional information, documents and reports
with
respect to compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and regulations.
Filing of such information, documents and reports with the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates); and
(c)
transmit by mail to all Holders of
Notes, within 30 days after the filing thereof with the Trustee in the manner
and to the extent provided in Section 7.04(d), such summaries of any
information, documents and reports required to be filed by the Company pursuant
to paragraphs (a) and (b) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
Note
that, for purposes of this Section 7.03, the Company's responsibility to file
information with the Trustee which is also filed with the Commission, shall
be
deemed to be satisfied by the posting of the Company's filings with the
Commission on the Commission's website (www.sec.gov/edgar).
26
Section
7.04 REPORTS BY THE TRUSTEE.
(a)
Annually, not later than August 15
of each year, the Trustee shall transmit by mail a brief report dated as of
such
date that complies with Section 313(a) of the TIA (to the extent required by
such Section).
(b)
The Trustee shall from time to time
transmit by mail brief reports that comply, both in content and date of
delivery, with Section 313(b) of the TIA (to the extent required by such
Section).
(c)
A copy of each such report filed
pursuant to this section shall, at the time of such transmission to such
Holders, be filed by the Trustee with each stock exchange upon which any Notes
are listed and also with the Commission. The Company will notify the Trustee
promptly in writing upon the listing of such Notes on any stock exchange or
any
delisting thereof.
(d)
Except as otherwise described in
Section 7.03, reports pursuant to this Section shall be
transmitted:
(1) by
mail to all Holders of Notes, as their names and addresses appear in the
register for the Notes;
(2) by
mail to such Holders of Notes as have, within the two years preceding such
transmission, filed their names and addresses with the Trustee for such
purpose;
(3) by
mail, except in the case of reports pursuant to Section 7.04(b) and (c) hereof,
to all Holders of Notes whose names and addresses have been furnished to or
received by the Trustee pursuant to Section 7.01 and 7.02(a)(ii) hereof;
and
(4) at
the time such report is transmitted to the Holders of the Notes, to each
exchange on which Notes are listed and also with the Commission.
ARTICLE
VIII
REMEDIES
OF THE TRUSTEE AND NOTEHOLDERS
ON
EVENTS OF DEFAULT
Section
8.01 EVENTS OF
DEFAULT.
(a)
If one or more of the following
Events of Default with respect to the Notes of any series shall have occurred
and be continuing:
(1) default
in the payment of any installment of interest upon any Note of such series
as
and when the same shall become due and payable, and continuance of such default
for a period of thirty (30) days, provided, however, that a valid extension
of
the interest payment period or deferral of interest payment by the Company
as
contemplated in Section 2.15 shall not constitute a failure to pay interest
for
this purpose;
27
(2) default
in the payment of the principal of or any premium on any Note of such series
as
and when the same shall become due and payable, and continuance of such default
for a period of one (1) day;
(3) failure
on the part of the Company duly to observe or perform any other covenants or
agreements on the part of the Company contained in this Indenture (other than
a
covenant or agreement that has been expressly included in this Indenture solely
for the benefit of one or more series of Notes other than such series) for
a
period of sixty (60) days after the date on which written notice specifying
such
failure, stating that such notice is a "Notice of Default" hereunder and
demanding that the Company remedy the same, shall have been given to the Company
by the Trustee by registered mail, or to the Company and the Trustee by the
Holders of not less than 33% in aggregate principal amount of the Notes of
such
series at the time outstanding;
(4) a
court having jurisdiction in the premises shall enter a decree or order for
relief in respect of the Company in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
adjudging the Company a bankrupt or insolvent, or approving as properly filed
a
petition seeking reorganization, arrangement, adjustment or composition of
or in
respect of the Company under any applicable law, or appointing a receiver,
liquidator, assignee, custodian, trustee or sequestrator (or similar official)
of the Company or for any substantial part of the property of the Company,
or
ordering the winding up or liquidation of the affairs of the Company, and such
decree or order shall remain unstayed and in effect for a period of sixty (60)
consecutive days;
(5) the
Company shall commence a voluntary case or proceeding under any applicable
bankruptcy, insolvency, reorganization or other similar law now or hereafter
in
effect or any other case or proceeding to be adjudicated a bankrupt or
insolvent, or consent to the entry of a decree or order for relief in an
involuntary case under any such law, or to the commencement of any bankruptcy
or
insolvency case or proceeding against it, or the filing by it of a petition
or
answer or consent seeking reorganization or relief under any applicable law,
or
consent to the filing of such petition or to the appointment or taking
possession by a receiver, liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of the Company or for any substantial part
of
the property of the Company, or make any general assignment for the benefit
of
creditors, or the notice by it in writing of its inability to pay its debts
generally as they become due, or the taking of any corporate action by the
Company in furtherance of any such action; or
(6) any
other Event of Default specified with respect to Notes of any series pursuant
to
Section 2.05 hereof;
then,
unless the principal of and interest on all of the Notes shall have already
become due and payable, either the Trustee or the Holders of a majority in
aggregate principal amount of the Notes of such series then outstanding, by
notice in writing to the Company (and to the Trustee if given by such Holders),
may declare the principal of and interest on all the Notes of such series to
be
due and payable immediately and upon any such declaration the same shall become
immediately due and payable, anything in this Indenture or in the Notes of
such
series
28
contained
to the contrary notwithstanding; provided, however, that if an Event of Default
shall have occurred and be continuing with respect to more than one series
of
Notes, the Trustee or the Holders of a majority in aggregate principal amount
of
the Outstanding Notes of all such series, considered as one class, may make
such
declaration of acceleration, and not the Holders of the Notes of any one of
such
series.
The
foregoing paragraph, however, is
subject to the condition that if, at any time after the principal of and
interest on the Notes of any series shall have been so declared due and payable,
and before any judgment or decree for the payment of the moneys due shall have
been obtained or entered as hereinafter provided, the Company shall pay or
shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest upon all of the Notes of such series and the principal of and any
premium on any and all Notes of such series which shall have become due
otherwise than by acceleration (with interest on overdue installments of
interest, to the extent that payment of such interest is enforceable under
applicable law, and on such principal and applicable premium at the rate borne
by the Notes of such series to the date of such payment or deposit) and all
sums
paid or advanced by the Trustee hereunder, the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and
any other amounts due the Trustee under Section 9.06 hereof, and any and all
Events of Default, other than the non-payment of principal of and accrued
interest on any Notes which shall have become due solely by acceleration of
maturity, shall have been cured or waived, then and in every such case such
payment or deposit shall cause an automatic waiver of the Event of Default
and
its consequences and shall cause an automatic rescission and annulment of the
acceleration of the Notes of such series; but no such waiver or rescission
and
annulment shall extend to or shall affect any subsequent default, or shall
impair any right consequent thereon.
(b)
If the Trustee shall have proceeded
to enforce any right under this Indenture and such proceedings shall have been
discontinued or abandoned because of such rescission or annulment or for any
other reason or shall have been determined adversely to the Trustee, then and
in
every such case the Company and the Trustee shall be restored respectively
to
their several positions and rights hereunder, and all rights, remedies and
powers of the Company and the Trustee shall continue as though no such
proceeding had been taken.
Section
8.02 COLLECTION OF INDEBTEDNESS
BY TRUSTEE; TRUSTEE MAY PROVE DEBT.
(a)
The Company covenants that if an
Event of Default described in clause (a)(1) or (a)(2) of Section 8.01 hereof
shall have occurred and be continuing, then, upon demand of the Trustee, the
Company shall pay to the Trustee, for the benefit of the Holders of the Notes
of
the series with respect to which Event of Default shall have occurred and is
continuing, the whole amount that then shall have so become due and payable
on
all such Notes for principal or interest, as the case may be, with interest
upon
the overdue principal and any premium and (to the extent that payment of such
interest is enforceable under applicable law) upon the overdue installments
of
interest at the rate borne by such Notes; and, in addition thereto, such further
amounts as shall be sufficient to cover the costs and expenses of collection,
including reasonable compensation to the Trustee, its agents, attorneys and
counsel, any expenses or liabilities incurred by the Trustee hereunder other
than through its negligence or bad faith. Until such demand is made by the
Trustee, the Company may pay the principal of and interest on such Notes to
the
Holders, whether or not such Notes be overdue.
29
(b)
In case the Company shall fail
forthwith to pay such amounts upon such demand, the Trustee, in its own name
and
as trustee of an express trust, shall be entitled and empowered to institute
any
actions or proceedings at law or in equity for the collection of the sums so
due
and unpaid, and may enforce any such judgment or final decree against the
Company or any other obligor on such Notes and collect in the manner provided
by
law out of the property of the Company or any other obligor on such Notes
wherever situated, the moneys adjudged or decreed to be payable.
(c)
In case there shall be pending
proceedings relative to the Company or any other obligor upon the Notes under
Title 11 of the United States Code or any other applicable Federal or state
bankruptcy, insolvency or other similar law, or in case a receiver, assignee
or
trustee in bankruptcy or reorganization, liquidator, sequestrator or similar
official shall have been appointed for or taken possession of the Company or
its
property or such other obligor, or in case of any other comparable judicial
proceedings relative to the Company or such other obligor, or to the creditors
or property of the Company or such other obligor, the Trustee, irrespective
of
whether the principal of the Notes shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand pursuant to the provisions of this Section, shall
be
entitled and empowered, by intervention in such proceedings or
otherwise:
(1) to
file and prove a claim or claims for the whole amount of the principal and
interest owing and unpaid in respect of the Notes, and to file such other papers
or documents as may be necessary or advisable in order to have the claims of
the
Trustee and of the Noteholders allowed in any judicial proceedings relative
to
the Company or such other obligor, or to the creditors or property of the
Company or such other obligor; and
(2) to
collect and receive any moneys or other property payable or deliverable on
any
such claims, and to distribute all amounts received with respect to the claims
of the Noteholders and of the Trustee on their behalf; and any trustee,
receiver, liquidator, custodian or other similar official is hereby authorized
by each of the Noteholders to make payments to the Trustee, and, in the event
that the Trustee shall consent to the making of the payments directly to the
Noteholders, to pay to Trustee such amounts due pursuant to Section 9.06
hereof.
(d)
Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or vote for or accept
or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes of any series or the rights of
any
Holder thereof, or to authorize the Trustee to vote in respect of the claim
of
any Holder in any such proceeding except to vote for the election of a trustee
in bankruptcy or similar person.
(e)
All rights of action and of
asserting claims under this Indenture, or under any of the Notes may be
prosecuted and enforced by the Trustee without the possession of any of the
Notes or the production thereof at any trial or other proceedings relative
thereto, and any such action or proceedings instituted by the Trustee shall
be
brought in its own name as trustee of an express trust, and any recovery of
judgment, subject to the payment of the expenses, disbursements and compensation
of the Trustee and its agents, attorneys and counsel, shall be for the ratable
benefit of the Holders of the Notes in respect of which such action was
taken.
30
(f)
In any proceedings brought by the
Trustee (and also any proceedings involving the interpretation of any provision
of this Indenture to which the Trustee shall be a party), the Trustee shall
be
held to represent all the Holders of the Notes in respect to which action was
taken, and it shall not be necessary to make any Holders of such Notes parties
to any such proceedings.
Section
8.03 APPLICATION OF PROCEEDS.
Any moneys collected by the Trustee with respect to any of the Notes pursuant
to
this Article shall be applied in the following order, at the date or dates
fixed
by the Trustee for the distribution of such moneys, upon presentation of the
several Notes, and stamping thereon the payment, if only partially paid, and
upon surrender thereof if fully paid.
FIRST:
To the payment of all amounts
due to the Trustee pursuant to Section 9.06 hereof;
SECOND:
In case the principal of the
outstanding Notes in respect of which such moneys have been collected shall
not
have become due and be unpaid, to the payment of interest on the Notes, in
the
order of the maturity of the installments of such interest, with interest (to
the extent allowed by law) upon the overdue installments of interest at the
rate
borne by the Notes, such payments to be made ratably to the persons entitled
thereto, and then to the payment to the Holders entitled thereto of the unpaid
principal of and applicable premium on any of the Notes which shall have become
due (other than Notes previously called for redemption for the payment of which
moneys are held pursuant to the provisions of this Indenture), whether at stated
maturity or by redemption, in the order of their due dates, beginning with
the
earliest due date, and if the amount available is not sufficient to pay in
full
all Notes due on any particular date, then to the payment thereof ratably,
according to the amounts of principal and applicable premium due on that date,
to the Holders entitled thereto, without any discrimination or
privilege;
THIRD:
In case the principal of the
outstanding Notes in respect of which such moneys have been collected shall
have
become due, by declaration or otherwise, to the payment of the whole amount
then
owing and unpaid upon the Notes for principal and any premium and interest
thereon, with interest on the overdue principal and any premium and (to the
extent allowed by law) upon overdue installments of interest at the rate borne
by the Notes; and in case such moneys shall be insufficient to pay in full
the
whole amount so due and unpaid upon the Notes, then to the payment of such
principal and any premium and interest without preference or priority of
principal and any premium over interest, or of interest over principal and
any
premium or of any installment of interest over any other installment of
interest, or of any Note over any other Note, ratably to the aggregate of such
principal and any premium and accrued and unpaid interest; and
FOURTH:
To the payment of the
remainder, if any, to the Company or its successors or assigns, or to whomsoever
may lawfully be entitled to the same, or as a court of competent jurisdiction
may determine.
Section
8.04 LIMITATIONS ON SUITS BY
NOTEHOLDERS.
(a)
No Holder of any Note of any series
shall have any right by virtue of or by availing of any provision of this
Indenture to institute any suit, action or proceeding in equity or at law upon
or under or with respect to this Indenture or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless such Holder previously
shall have given to
31
the
Trustee written notice of an Event of Default with respect to such Note and
of
the continuance thereof, as hereinabove provided, and unless also Noteholders
of
a majority in aggregate principal amount of the Notes of all series then
outstanding in respect of which an Event of Default has occurred and is
continuing, considered as one class, shall have made written request upon the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as
it
may require against the costs, expenses and liabilities to be incurred therein
or thereby, and the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused to institute
any
such action, suit or proceeding; it being understood and intended, and being
expressly covenanted by the taker and Holder of every Note of any series with
every other taker and Holder and the Trustee, that no one or more Holders of
Notes of such series shall have any right in any manner whatever by virtue
or by
availing of any provision of this Indenture to affect, disturb or prejudice
the
rights of any other Holder of Notes of such series, or to obtain or seek to
obtain priority over or preference to any other such Holder or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all Holders of Notes of such series. For
the protection and enforcement of the provisions of this Section, each and
every
Noteholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
(b)
Notwithstanding any other provision
in this Indenture, however, the rights of any Holder of any Note to receive
payment of the principal of and any premium and interest on such Note, on or
after the respective due dates expressed in such Note or on the applicable
redemption date, or to institute suit for the enforcement of any such payment
on
or after such respective dates are absolute and unconditional, and shall not
be
impaired or affected without the consent of such Holder.
Section
8.05 SUITS FOR ENFORCEMENT. In
case an Event of Default has occurred, has not been waived and is continuing
hereunder, the Trustee may in its discretion proceed to protect and enforce
the
rights vested in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any of such
rights, either by suit in equity or by action at law or by proceeding in
bankruptcy or otherwise, whether for the specific enforcement of any covenant
or
agreement contained in this Indenture or in aid of the exercise of any power
granted to it under this Indenture, or to enforce any other legal or equitable
right vested in the Trustee by this Indenture or by law.
Section
8.06 POWERS AND REMEDIES
CUMULATIVE; DELAY OR OMISSION NOT WAIVER OF DEFAULT. No right or remedy herein
conferred upon or reserved to the Trustee or to the Holders of Notes is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
No
delay or omission of the Trustee or
of any Holder of Notes to exercise any right or power accruing upon any Event
of
Default occurring and continuing as aforesaid shall impair any such right or
power or shall be construed to be a waiver of any such Event of Default or
an
acquiescence therein; and, subject to Section 8.04, every right and power given
by this Indenture or by law to the Trustee or to the Holders of Notes may be
exercised from time to time, and as often as shall be deemed expedient, by
the
Trustee or by the Holders of Notes, as the case may be.
32
Section
8.07 DIRECTION OF PROCEEDINGS
AND WAIVER OF DEFAULTS BY MAJORITY OF NOTEHOLDERS.
(a)
The Holders of a majority in
aggregate principal amount of the Notes of any series at the time outstanding
shall have the right to direct the time, method, and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust
or
power conferred on the Trustee; provided, however, that if an Event of Default
shall have occurred and be continuing with respect to more than one series
of
Notes, the Holders of a majority in aggregate principal amount of the
Outstanding Notes of all such series, considered as one class, shall have the
right to make such direction, and not the Holders of the Notes of any one of
such series; provided, further, that such direction shall not be otherwise
than
in accordance with law and the provisions of this Indenture; and provided
further that (subject to Section 9.01 hereof) the Trustee shall have the right
to decline to follow any such direction if the Trustee being advised by counsel
determines that the action or proceeding so directed may not lawfully be taken
or if the Trustee in good faith by its board of directors or trustees, executive
committee, or a trust committee of directors or trustees or responsible officers
shall determine that the action or proceeding so directed would involve the
Trustee in personal liability. Nothing in this Indenture shall impair the right
of the Trustee in its discretion to take any action deemed proper by the Trustee
and which is not inconsistent with such direction or directions by
Noteholders.
(b)
The Holders of a majority in
aggregate principal amount of the Notes of any series at the time outstanding
may on behalf of all of the Holders of the Notes of such series waive any past
default or Event of Default hereunder and its consequences except a default
in
the payment of principal of or any premium or interest on the Notes of such
series. Upon any such waiver the Company, the Trustee and the Holders of the
Notes of such series shall be restored to their former positions and rights
hereunder, respectively, but no such waiver shall extend to any subsequent
or
other default or Event of Default or impair any right consequent thereon. Upon
such waiver, such default shall cease to exist and be deemed to have been cured
and not to be continuing, and any Event of Default arising therefrom shall
be
deemed to have been cured and not to be continuing, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default
or
Event of Default or impair any right consequent thereon.
Section
8.08 NOTICE OF DEFAULT. The
Trustee shall, within 90 days after the occurrence of a default with respect
to
the Notes of any series, give to all Holders of the Notes of such series, in
the
manner provided in Section 15.10, notice of such default actually known to
a
Responsible Officer of the Trustee, unless such default shall have been cured
or
waived before the giving of such notice, the term "default" for the purpose
of
this Section 8.08 being hereby defined to be any event which is or after notice
or lapse of time or both would become an Event of Default; provided that, except
in the case of default in the payment of the principal of or any premium or
interest on any of the Notes of such series, or in the payment of any sinking
or
purchase fund installments, the Trustee shall be protected in withholding such
notice if and so long as its board of directors or trustees, executive
committee, or a trust committee of directors or trustees or responsible officers
in good faith determines that the withholding of such notice is in the interests
of the Holders of the Notes of such series. The Company shall deliver
to the Trustee, as soon as possible and in any event within five days after
the
Company becomes aware of the occurrence of any Event of Default or an event
which, with notice or the lapse of time or both, would constitute an Event
of
Default, an Officers' Certificate setting forth the details of such Event of
Default or default and the action which the Company proposes to take with
respect thereto.
33
Section
8.09 UNDERTAKING TO PAY COSTS.
All parties to this Indenture agree, and each Holder of any Note by acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken, suffered
or
omitted by it as Trustee, the filing by any party litigant in such suit of
an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but this
Section 8.09 shall not apply to any suit instituted by the Trustee, or to any
suit instituted by any Noteholder, or group of Noteholders, holding in the
aggregate more than 10% in principal amount of the Notes of all series in
respect of which such suit may be brought, considered as one class, or to any
suit instituted by any Noteholder for the enforcement of the payment of the
principal of or any premium or interest on any Note on or after the due date
expressed in such Note or the applicable redemption date.
Section
8.10 RESTORATION OF RIGHTS ON
ABANDONMENT OF PROCEEDINGS. In case the Trustee or any Holder shall have
proceeded to enforce any right under this Indenture and such proceedings shall
have been discontinued or abandoned for any reason, or shall have been
determined adversely to the Trustee or to such Holder, then, and in every such
case, the Company, the Trustee and the Holders shall be restored respectively
to
their former positions and rights hereunder, and all rights, remedies and powers
of the Company, the Trustee and the Holders shall continue as though no such
proceedings had been taken.
Section
8.11 WAIVER OF USURY, STAY OR
EXTENSION LAWS. The Company covenants (to the extent that it may lawfully do
so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any usury, stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage
of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been
enacted.
ARTICLE
IX
CONCERNING
THE TRUSTEE
Section
9.01 DUTIES AND
RESPONSIBILITIES OF TRUSTEE.
(a)
The Trustee, prior to the
occurrence of an Event of Default and after the curing of all Events of Default
which may have occurred, undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture. If an Event of Default has
occurred (which has not been cured or waived), the Trustee shall exercise such
of the rights and powers vested in it by this Indenture, and use the same degree
of care and skill in their exercise, as a prudent person would exercise or
use
under the circumstances in the conduct of his or her own affairs.
34
(b)
No provisions of this Indenture
shall be construed to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that:
(1) prior
to the occurrence of any Event of Default and after the curing or waiving of
all
Events of Default which may have occurred:
(A) the
duties and obligations of the Trustee shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable except for
the
performance of such duties and obligations as are specifically set forth in
this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(B) in
the absence of bad faith or actual knowledge on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture;
but, in the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts stated
therein);
(2) the
Trustee shall not be liable for any error of judgment made in good faith by
a
Responsible Officer or Officers of the Trustee, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(3) the
Trustee shall not be liable with respect to any action taken or omitted to
be
taken by it in good faith in accordance with the direction, pursuant to this
Indenture, of the Holders of a majority in aggregate principal amount of the
Notes of any one or more series, as provided herein, including, but not limited
to, Section 8.07 hereof relating to the time, method and place of conducting
any
proceeding for any remedy available to the Trustee, or exercising any trust
or
power conferred upon the Trustee under this Indenture with respect to the Notes
of such series.
(c)
No provision of this Indenture
shall require the Trustee to expend or risk its own funds or otherwise incur
any
financial liability in the performance of any of its duties hereunder, or in
the
exercise of any of its rights or powers, if it shall have reasonable grounds
for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(d)
Whether or not therein expressly so
provided, every provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be subject to
the
provisions of this Section.
Section
9.02 RELIANCE ON DOCUMENTS,
OPINIONS, ETC. Except as otherwise provided in Section 9.01 hereof:
35
(a)
the Trustee may conclusively rely
and shall be protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, note or other paper or document believed by it to be genuine and to
have
been signed or presented by the proper party or parties;
(b)
any request, direction, order or
demand of the Company mentioned herein shall be sufficiently evidenced by an
Officers' Certificate (unless other evidence in respect thereof is herein
specifically prescribed); and any Board Resolution may be evidenced to the
Trustee by a copy thereof certified by the Secretary or an Assistant Secretary
of the Company;
(c)
the Trustee may consult with
counsel of its selection and any advice or Opinion of Counsel shall be full
and
complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with such advice
or
Opinion of Counsel;
(d)
the Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Indenture at the request, order or direction of any of the Noteholders, pursuant
to this Indenture, unless such Noteholders shall have offered to the Trustee
reasonable security or indemnity satisfactory to the Trustee against the costs,
expenses and liabilities which may be incurred by such exercise;
(e)
the Trustee shall not be liable for
any action taken, suffered or omitted by it in good faith and believed by it
to
be authorized or within the discretion or rights or powers conferred upon it
by
this Indenture;
(f)
prior to the occurrence of an Event
of Default hereunder and after the curing or waiving of all Events of Default,
the Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, note or other paper or
document, unless requested in writing to do so by the Holders of a majority
in
aggregate principal amount of the then outstanding Notes of any series; provided
that if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the
Trustee by the security afforded to it by this Indenture, the Trustee may
require reasonable indemnity against such expense or liability as a condition
to
so proceeding;
(g)
the Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either directly
or
through agents or attorneys; provided that the Trustee shall not be liable
for
the conduct or acts of any such agent or attorney that shall have been appointed
in accordance herewith with due care.
(h)
the Trustee shall not be deemed to
have notice of any default or Event of Default unless a Responsible Officer
of
the Trustee has actual knowledge thereof or unless written notice of any event
which is in fact such a default is received by the Trustee at the Corporate
Trust Office of the Trustee, and such notice references the Notes and this
Indenture.
(i)
the rights, privileges,
protections, immunities and benefits given to the Trustee, including, without
limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities thereunder, and to each
agent, custodian and other person employed to act hereunder.
36
(j)
the Trustee may request that the
Company deliver an Officers' Certificate setting forth the names of individuals
and/or titles of officers authorized at such time to take specified actions
pursuant to this Indenture, which Officers' Certificate may be signed by any
person authorized to sign an Officers' Certificate, including any person
specified as so authorized in any such certificate previously delivered and
not
superseded.
Section
9.03 NO RESPONSIBILITY FOR
RECITALS, ETC. The recitals contained herein and in the Notes (except in the
certificate of authentication) shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for the correctness of the same.
The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Notes. The Trustee shall not be accountable for the use
or
application by the Company of any Notes or the proceeds of any Notes
authenticated and delivered by the Trustee in conformity with this
Indenture.
Section
9.04 TRUSTEE, AUTHENTICATING
AGENT, PAYING AGENT OR REGISTRAR MAY OWN NOTES. The Trustee and any
Authenticating Agent or paying agent in its individual or other capacity, may
become the owner or pledgee of Notes with the same rights it would have if
it
were not Trustee, Authenticating Agent or paying agent.
Section
9.05 MONEYS TO BE HELD IN
TRUST. Subject to Section 5.05 hereof, all moneys received by the Trustee shall,
until used or applied as herein provided, be held in trust for the purposes
for
which they were received, but need not be segregated from other funds except
to
the extent required by law. The Trustee shall be under no liability
for interest on any money received by it hereunder, except the Trustee may
allow
and credit to the Company interest on any money received hereunder at such
rate,
if any, as may be agreed upon by the Company and the Trustee from time to time
as may be permitted by law.
Section
9.06 COMPENSATION AND EXPENSES
OF TRUSTEE. The Company covenants and agrees to pay to the Trustee from time
to
time, and the Trustee shall be entitled to, such compensation as the Company
and
the Trustee shall from time to time agree in writing (which shall not be limited
by any law in regard to the compensation of a trustee of an express trust),
and
the Company shall pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with this Indenture (including the reasonable compensation and
the
reasonable expenses and disbursements of its counsel and agents, including
any
Authenticating Agents, and of all persons not regularly in its
employ) except any such expense, disbursement or advance as may arise from
the
Trustee's negligence or willful misconduct. The Company also covenants to
indemnify each of the Trustee or any predecessor and their agents for, and
to
hold each of them harmless against, any claim, damage, loss, liability, cost
or
expense incurred without negligence or willful misconduct on the part of the
party so indemnified and arising out of or in connection with the acceptance
or
administration of this trust, including the costs and expenses of each such
party incurred in defending itself against any claim or liability. The
obligations of the Company under this Section 9.06 to compensate the Trustee,
to
indemnify and to pay or reimburse the Trustee for expenses, disbursements and
advances shall constitute additional indebtedness hereunder. Such additional
indebtedness shall be secured by a lien prior to that of the Notes upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the Holders of any particular Notes. The provisions
of this Section 9.06 shall survive termination of this Indenture and the
resignation or removal of the Trustee.
Section
9.07 OFFICERS' CERTIFICATE AS
EVIDENCE. Whenever in the administration of this Indenture, the Trustee shall
deem it necessary or desirable that a matter be proved or
37
established
prior to the taking, suffering or omitting of any action hereunder, such matter
(unless other evidence in respect thereof is herein specifically prescribed)
may, in the absence of negligence or bad faith on the part of the Trustee,
be
deemed to be conclusively proved and established by an Officers' Certificate
delivered to the Trustee, and such Officers' Certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full warrant to
the
Trustee for any action taken, suffered or omitted by it under this Indenture
in
reliance thereon.
Section
9.08 CONFLICTING INTEREST OF
TRUSTEE. The Trustee shall be subject to and shall comply with the provisions
of
Section 310(b) of the TIA. Nothing in this Indenture shall be deemed to prohibit
the Trustee or the Company from making any application permitted pursuant to
such section.
Section
9.09 EXISTENCE AND ELIGIBILITY
OF TRUSTEE. There shall at all times be a Trustee hereunder which Trustee shall
at all times be a corporation organized and doing business under the laws of the
United States or any State thereof or of the District of Columbia having a
combined capital and surplus of at least $50,000,000 and which is authorized
under such laws to exercise corporate trust powers and is subject to supervision
or examination by Federal or State authorities. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid authority, then for the purposes of this Section 9.09, the
combined capital and surplus shall be deemed to be as set forth in its most
recent report of condition so published. No obligor upon the Notes or Person
directly or indirectly controlling, controlled by, or under common control
with
such obligor shall serve as Trustee. If at any time the Trustee shall cease
to
be eligible in accordance with this Section 9.09, the Trustee shall resign
immediately in the manner and with the effect specified in Section 9.10
hereof.
Section
9.10 RESIGNATION OR REMOVAL OF
TRUSTEE.
(a)
Pursuant to the provisions of this
Article, the Trustee may at any time resign and be discharged of the trusts
created by this Indenture by giving written notice to the Company specifying
the
day upon which such resignation shall take effect, and such resignation shall
take effect immediately upon the later of the appointment of a successor trustee
and such day.
(b)
Any Trustee may be removed at any
time with respect to the Notes of any series by an instrument or concurrent
instruments in writing filed with such Trustee and signed and acknowledged
by
the Holders of a majority in aggregate principal amount of the then outstanding
Notes of such series or by their attorneys in fact duly authorized.
(c)
So long as no Event of Default has
occurred and is continuing, and no event has occurred and is continuing that,
with the giving of notice or the lapse of time or both, would become an Event
of
Default, the Company may remove any Trustee upon written notice to the Holder
of
each Note Outstanding and the Trustee and appoint a successor Trustee meeting
the requirements of Section 9.09. The Company or the successor Trustee shall
give notice to the Holders, in the manner provided in Section 15.10, of such
removal and appointment within 30 days of such removal and
appointment.
(d)
If at any time (i) the Trustee
shall cease to be eligible in accordance with Section 9.09 hereof and shall
fail
to resign after written request therefor by the Company or by any Holder who
has
been a bona fide Holder for at least six months, (ii) the Trustee shall fail
to
comply with Section 9.08 hereof after written request therefor by the Company
or
any such
38
Holder,
or (iii) the Trustee shall become incapable of acting or shall be adjudged
a
bankrupt or insolvent or a receiver of the Trustee or its property shall be
appointed or any public officer shall take charge or control of the Trustee
or
of its property or affairs for the purpose of rehabilitation, conservation
or
liquidation, then the Trustee may be removed forthwith by an instrument or
concurrent instruments in writing filed with the Trustee and
either:
(1)
signed by the Chairman, the
President or any Vice President of the Company and attested by the Secretary
or
an Assistant Secretary of the Company; or
(2)
signed and acknowledged by the
Holders of a majority in principal amount of outstanding Notes or by their
attorneys in fact duly authorized.
(e)
Any resignation or removal of the
Trustee shall not become effective until acceptance of appointment by the
successor Trustee as provided in Section 9.11 hereof.
Section
9.11 APPOINTMENT OF SUCCESSOR
TRUSTEE.
(a)
If at any time the Trustee shall
resign or be removed, the Company, by a Board Resolution, shall promptly appoint
a successor Trustee.
(b)
The Company shall provide written
notice of its appointment of a Successor Trustee to the Holder of each Note
Outstanding following any such appointment.
(c)
If no appointment of a successor
Trustee shall be made pursuant to Section 9.11(a) hereof within 60 days after
appointment shall be required, any Noteholder or the retiring Trustee may apply
to any court of competent jurisdiction to appoint a successor Trustee. Said
court may thereupon after such notice, if any, as such court may deem proper
and
prescribe, appoint a successor Trustee.
(d)
Any Trustee appointed under this
Section 9.11 as a successor Trustee shall be a bank or trust company eligible
under Section 9.09 hereof and qualified under Section 9.08 hereof.
Section
9.12 ACCEPTANCE BY SUCCESSOR
TRUSTEE.
(a)
Any successor Trustee appointed as
provided in Section 9.11 hereof shall execute, acknowledge and deliver to the
Company and to its predecessor Trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor Trustee
shall become effective and such successor Trustee, without any further act,
deed
or conveyance, shall become vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as Trustee herein; but nevertheless, on the written request of the Company
or of the successor Trustee, the Trustee ceasing to act shall, upon payment
of
any amounts then due it pursuant to Section 9.06 hereof, execute and deliver
an
instrument transferring to such successor Trustee all the rights and powers
of
the Trustee so ceasing to act. Upon request of any such successor Trustee,
the
Company shall execute any and all instruments in writing in order more fully
and
certainly to vest in and confirm to such successor Trustee all such rights
and
powers. Any Trustee ceasing to act shall, nevertheless, retain a lien upon
all
property or funds held or collected by such Trustee to secure any amounts then
due it pursuant to Section 9.06 hereof.
39
(b)
No successor Trustee shall accept
appointment as provided in this Section 9.12 unless at the time of such
acceptance such successor Trustee shall be qualified under Section 9.08 hereof
and eligible under Section 9.09 hereof.
(c)
Upon acceptance of appointment by a
successor Trustee as provided in this Section 9.12, the successor Trustee shall
mail notice of its succession hereunder to all Holders of Notes as the names
and
addresses of such Holders appear on the registry books.
Section
9.13 SUCCESSION BY MERGER,
ETC.
(a)
Any corporation into which the
Trustee may be merged or converted or with which it may be consolidated, or
any
corporation resulting from any merger, conversion or consolidation to which
the
Trustee shall be a party, or any corporation succeeding to all or substantially
all of the corporate trust business of the Trustee, shall be the successor
of
the Trustee hereunder without the execution or filing of any paper or any
further act on the part of any of the parties hereto, provided such corporation
shall be otherwise qualified and eligible under this Article.
(b)
If at the time such successor to
the Trustee shall succeed to the trusts created by this Indenture any of the
Notes shall have been authenticated but not delivered, any such successor to
the
Trustee may adopt the certificate of authentication of any predecessor Trustee,
and deliver such Notes so authenticated; and in case at that time any of the
Notes shall not have been authenticated, any successor to the Trustee may
authenticate such Notes either in the name of any predecessor hereunder or
in
the name of the successor Trustee; and in all such cases such certificates
shall
have the full force which it is anywhere in the Notes or in this Indenture
provided that the certificates of the Trustee shall have; provided that the
right to adopt the certificate of authentication of any predecessor Trustee
or
authenticate Notes in the name of any predecessor Trustee shall apply only
to
its successor or successors by merger, conversion or consolidation.
Section
9.14 LIMITATIONS ON RIGHTS OF
TRUSTEE AS A CREDITOR. The Trustee shall be subject to, and shall comply with,
the provisions of Section 311 of the TIA.
Section
9.15 AUTHENTICATING
AGENT.
(a)
There may be one or more
Authenticating Agents appointed by the Trustee with the written consent of
the
Company, with power to act on its behalf and subject to the direction of the
Trustee in the authentication and delivery of Notes in connection with transfers
and exchanges under Sections 2.06, 2.07, 2.08, 2.13, 3.03, and 13.04 hereof,
as
fully to all intents and purposes as though such Authenticating Agents had
been
expressly authorized by those Sections to authenticate and deliver Notes. For
all purposes of this Indenture, the authentication and delivery of Notes by
any
Authenticating Agent pursuant to this Section 9.15 shall be deemed to be the
authentication and delivery of such Notes "by the Trustee." Any such
Authenticating Agent shall be a bank or trust company or other Person of the
character and qualifications set forth in Section 9.09 hereof.
(b)
Any corporation into which any
Authenticating Agent may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which any Authenticating Agent shall be a party, or any
corporation succeeding to the corporate trust business of any Authenticating
Agent, shall be the successor of such Authenticating Agent hereunder, if such
successor corporation is otherwise
40
eligible
under this Section 9.15, without the execution or filing of any paper or any
further act on the part of the parties hereto or such Authenticating Agent
or
such successor corporation.
(c)
Any Authenticating Agent may at any
time resign by giving written notice of resignation to the Trustee and to the
Company. The Trustee may at any time terminate the agency of any Authenticating
Agent by giving written notice of termination to such Authenticating Agent
and
to the Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to
be
eligible under this Section 9.15, the Trustee may, with the written consent
of
the Company, appoint a successor Authenticating Agent, and upon so doing shall
give written notice of such appointment to the Company and shall mail, in the
manner provided in Section 15.10, notice of such appointment to the Holders
of
Notes.
(d)
The Trustee agrees to pay to each
Authenticating Agent from time to time reasonable compensation for its services,
and the Trustee shall be entitled to be reimbursed for such payments, in
accordance with Section 9.06 hereof.
(e)
Sections 9.02, 9.03, 9.06, 9.07 and
9.09 hereof shall be applicable to any Authenticating Agent.
Section
9.16 TRUSTEE'S APPLICATION FOR INSTRUCTIONS FROM THE COMPANY. Any
application by the Trustee for written instructions from the Company may, at
the
option of the Trustee, set forth in writing any action proposed to be taken
or
omitted by the Trustee under this Indenture and the date on and/or after which
such action shall be taken or such omission shall be effective. The
Trustee shall not be liable for any action taken by, or omission of, the Trustee
in accordance with a proposal included in such application on or after the
date
specified in such application (which date shall not be less than three Business
Days after the date any officer of the Company actually receives such
application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date
in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or
omitted.
ARTICLE
X
CONCERNING
THE NOTEHOLDERS
Section
10.01 ACTION TAKEN BY
NOTEHOLDERS. Whenever in this Indenture it is provided that the Holders of
a
specified percentage in aggregate principal amount of the Notes of any series
may take any action, the fact that at the time of taking any such action the
Holders of such specified percentage have joined therein may be evidenced (a)
by
any instrument or any number of instruments of similar tenor executed by such
Noteholders in person or by agent or proxy appointed in writing, (b) by the
record of such Noteholders voting in favor thereof at any meeting of Noteholders
duly called and held in accordance with Article XI hereof, or (c) by a
combination of such instrument or instruments and any such record of such a
meeting of Noteholders.
Section
10.02 PROOF OF EXECUTION BY
NOTEHOLDERS.
(a)
Subject to Sections 9.01, 9.02 and
11.05 hereof, proof of the execution of any instruments by a Noteholder or
the
agent or proxy for such Noteholder shall be sufficient if made in accordance
with such reasonable rules and regulations as may be prescribed by the Trustee
41
or
in
such manner as shall be satisfactory to the Trustee. The ownership of Notes
shall be proved by the register for the Notes maintained by the
Trustee.
(b)
The record of any Noteholders'
meeting shall be proven in the manner provided in Section 11.06
hereof.
Section
10.03 PERSONS DEEMED ABSOLUTE
OWNERS. Subject to Sections 2.04(f) and 10.01 hereof, the Company, the Trustee,
any paying agent and any Authenticating Agent shall deem the person in whose
name any Note shall be registered upon the register for the Notes to be, and
shall treat such person as, the absolute owner of such Note (whether or not
such
Note shall be overdue) for the purpose of receiving payment of or on account
of
the principal and premium, if any, and interest on such Note, and for all other
purposes; and neither the Company nor the Trustee nor any paying agent nor
any
Authenticating Agent shall be affected by any notice to the contrary. All such
payments shall be valid and effectual to satisfy and discharge the liability
upon any such Note to the extent of the sum or sums so paid.
Section
10.04 COMPANY-OWNED NOTES
DISREGARDED. In determining whether the Holders of the requisite aggregate
principal amount of outstanding Notes of any series have concurred in any
direction, consent or waiver under this Indenture, Notes that are owned by
the
Company or any other obligor on the Notes or by any person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any other obligor on the Notes shall be disregarded
and deemed not to be outstanding for the purpose of any such determination;
provided that, for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, consent or waiver, only Notes which
a Responsible Officer of the Trustee knows are so owned shall be so disregarded.
Notes so owned which have been pledged in good faith to third parties may be
regarded as outstanding for the purposes of this Section 10.04 if the pledgee
shall establish the pledgee's right to take action with respect to such Notes
and that the pledgee is not a person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or
any
such other obligor. In the case of a dispute as to such right, the Trustee
may
rely upon an Opinion of Counsel and an Officers' Certificate to establish the
foregoing.
Section
10.05 REVOCATION OF CONSENTS;
FUTURE HOLDERS BOUND. Except as may be otherwise required in the case of a
Global Note by the applicable rules and regulations of the Depositary, at any
time prior to the taking of any action by the Holders of the percentage in
aggregate principal amount of the Notes of any series specified in this
Indenture in connection with such action, any Holder of a Note, which has been
included in the Notes the Holders of which have consented to such action may,
by
filing written notice with the Trustee at the corporate trust office of the
Trustee and upon proof of ownership as provided in Section 10.02(a) hereof,
revoke such action so far as it concerns such Note. Except as aforesaid, any
such action taken by the Holder of any Note shall be conclusive and binding
upon
such Holder and upon all future Holders and owners of such Note and of any
Notes
issued in exchange, substitution or upon registration of transfer therefor,
irrespective of whether or not any notation thereof is made upon such Note
or
such other Notes.
Section
10.06 RECORD DATE FOR
NOTEHOLDER ACTS. If the Company shall solicit from the Noteholders any request,
demand, authorization, direction, notice, consent, waiver or other act, the
Company may, at its option, by Board Resolution, fix in advance a record date
for the determination of Noteholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other act, but the Company
shall have no obligation to do so. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or
42
other
act
may be given before or after the record date, but only the Noteholders of record
at the close of business on the record date shall be deemed to be Noteholders
for the purpose of determining whether Holders of the requisite aggregate
principal amount of outstanding Notes have authorized or agreed or consented
to
such request, demand, authorization, direction, notice, consent, waiver or
other
act, and for that purpose the outstanding Notes shall be computed as of the
record date; provided that no such request, demand, authorization, direction,
notice, consent, waiver or other act by the Noteholders on the record date
shall
be deemed effective unless it shall become effective pursuant to this Indenture
not later than six months after the record date. Any such record date shall
be
at least 30 days prior to the date of the solicitation to the Noteholders by
the
Company.
ARTICLE
XI
NOTEHOLDERS'
MEETING
Section
11.01 PURPOSES OF MEETINGS. A
meeting of Noteholders may be called at any time and from time to time pursuant
to this Article XI for any of the following purposes:
(a)
to give any notice to the Company
or to the Trustee, or to give any directions to the Trustee, or to consent
to
the waiving of any Event of Default hereunder and its consequences, or to take
any other action authorized to be taken by Noteholders pursuant to Article
XIII;
(b)
to remove the Trustee pursuant to
Article IX;
(c)
to consent to the execution of an
indenture or indentures supplemental hereto pursuant to Section 13.02 hereof;
or
(d)
to take any other action authorized
to be taken by or on behalf of the Holders of any specified aggregate principal
amount of the Notes of any series, as the case may be, under any other provision
of this Indenture or under applicable law.
Section
11.02 CALL OF MEETINGS BY
TRUSTEE. The Trustee may at any time call a meeting of Holders of Notes to
take
any action specified in Section 11.01 hereof, to be held at such time and at
such place as the Trustee shall determine. Notice of every such meeting of
Noteholders, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given to Holders
of the Notes that may be affected by the action proposed to be taken at such
meeting in the manner provided in Section 15.10 hereof. Such notice shall be
given not less than 20 nor more than 90 days prior to the date fixed for such
meeting.
Section
11.03 CALL OF MEETINGS BY
COMPANY OR NOTEHOLDERS. If at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in aggregate principal amount of
the
Notes of all series then outstanding, considered as one class, shall have
requested the Trustee to call a meeting of Noteholders, by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have mailed the notice of such meeting within
20 days after receipt of such request, then the Company or such Noteholders
may
determine the time and the place for such meeting and may call such meeting
to
take any action authorized in Section 11.01 hereof, by giving notice thereof
as
provided in Section 11.02 hereof.
43
Section
11.04 QUALIFICATIONS FOR
VOTING. To be entitled to vote at any meetings of Noteholders a Person shall
(a)
be a Holder of one or more Notes affected by the action proposed to be taken
or
(b) be a Person appointed by an instrument in writing as proxy by a Holder
of
one or more such Notes. The only Persons who shall be entitled to be present
or
to speak at any meeting of Noteholders shall be the Persons entitled to vote
at
such meeting and their counsel and any representatives (including employees)
of
the Trustee and its counsel and any representatives (including employees) of
the
Company and its counsel.
Section
11.05 REGULATIONS.
(a)
Notwithstanding any other
provisions of this Indenture, the Trustee may make such reasonable regulations
as it may deem advisable for any meeting of Noteholders in regard to proof
of
the holding of Notes and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination
of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall think
fit.
(b)
The Trustee shall, by an instrument
in writing, appoint a temporary chairman of the meeting, unless the meeting
shall have been called by the Company or by the Noteholders as provided in
Section 11.03 hereof, in which case the Company or Noteholders calling the
meeting, as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be elected
by the Holders of a majority in aggregate principal amount of the Notes present
in person or by proxy at the meeting.
(c)
Subject to Section 10.04 hereof, at
any meeting each Noteholder or proxy shall be entitled to one vote for each
$1,000 principal amount of Notes held or represented by such Noteholder;
provided that no vote shall be cast or counted at any meeting in respect of
any
Note determined to be not outstanding. The chairman of the meeting shall have
no
right to vote other than by virtue of Notes held by such chairman or instruments
in writing as aforesaid duly designating such chairman as the person to vote
on
behalf of other Noteholders. At any meeting of Noteholders duly
called pursuant to Section 11.02 or 11.03 hereof, the presence of persons
holding or representing Notes in an aggregate principal amount sufficient to
take action on any business for the transaction for which such meeting was
called shall constitute a quorum. Any meeting of Noteholders duly called
pursuant to Section 11.02 or 11.03 hereof may be adjourned from time to time
by
the Holders of a majority in aggregate principal amount of the Notes present
in
person or by proxy at the meeting, whether or not constituting a quorum, and
the
meeting may be held as so adjourned without further notice.
Section
11.06 VOTING. The vote upon any
resolution submitted to any meeting of Noteholders shall be by written ballots
on which shall be subscribed the signatures of the Holders of Notes or of their
representatives by proxy and the principal amount of Notes held or represented
by them. The permanent chairman of the meeting shall appoint two inspectors
of
votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the meeting. A record
in duplicate of the proceedings of such meeting of Noteholders shall be prepared
by the secretary of the meeting and there shall be attached to said record
the
original reports of the inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more persons having knowledge of the facts setting
forth a copy of the notice of the meeting and showing that said notice was
given
as provided in Section 11.02 hereof. The record shall show the aggregate
principal amount of the Notes voting in favor of or
44
against
any resolution. The record shall be signed and verified by the affidavits of
the
permanent chairman and secretary of the meeting and one of the duplicates shall
be delivered to the Company and the other to the Trustee to be preserved by
the
Trustee and the Trustee shall have the ballots taken at the meeting attached
to
such duplicate. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
Section
11.07 RIGHTS OF TRUSTEE OR
NOTEHOLDERS NOT DELAYED. Nothing in this Article XI shall be deemed or construed
to authorize or permit, by reason of any call of a meeting of Noteholders or
any
rights expressly or impliedly conferred hereunder to make such call, any
hindrance or delay in the exercise of any right or rights conferred upon or
reserved to the Trustee or to the Holders of Notes under any of the provisions
of this Indenture or of the Notes.
ARTICLE
XII
CONSOLIDATION,
MERGER, SALE, TRANSFER OR CONVEYANCE
Section
12.01 COMPANY MAY CONSOLIDATE,
ETC. ONLY ON CERTAIN TERMS. The Company shall not consolidate with or merge
into
any other corporation or sell, transfer, lease or otherwise dispose of its
properties as or substantially as an entirety to any Person unless the Company
has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel
each stating that such consolidation, merger, conveyance or transfer and the
supplemental indenture referred to in clause (b) below comply with this Article
XII and that all conditions precedent herein provided for have been complied
with, and the corporation formed by such consolidation or into which the Company
is merged or the Person which receives such properties pursuant to such sale,
transfer, lease or other disposition (a) shall be a corporation organized and
existing under the laws of the United States of America, any state thereof
or
the District of Columbia; (b) shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form reasonably
satisfactory to the Trustee, the due and punctual payment of the principal
of
and premium and interest on all of the Notes and the performance of every
covenant of this Indenture on the part of the Company to be performed or
observed; and (c) immediately after giving effect to the transaction, no
Event of Default or event that, after notice or lapse of time, or both, would
become an Event of Default, shall have occurred and be continuing
Section
12.02 SUCCESSOR CORPORATION
SUBSTITUTED. Upon any consolidation or merger, or any sale, transfer, lease
or
other disposition of the properties of the Company substantially as an entirety
in accordance with Section 12.01 hereof, the successor corporation formed by
such consolidation or into which the Company is merged or the Person to which
such sale, transfer or other disposition is made shall succeed to, and be
substituted for and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor corporation or Person
had been named as the Company herein and the Company shall be released from
all
obligations hereunder.
45
ARTICLE
XIII
SUPPLEMENTAL
INDENTURES
Section
13.01 SUPPLEMENTAL INDENTURES
WITHOUT CONSENT OF NOTEHOLDERS.
(a)
The Company, when authorized by
Board Resolution, and the Trustee may from time to time and at any time enter
into an indenture or indentures supplemental hereto, without consent of holders
of the Notes, for one or more of the following purposes:
(1) to
make such provision in regard to matters or questions arising under this
Indenture as may be necessary or desirable, and not inconsistent with this
Indenture or prejudicial to the interests of the Holders in any material
respect, for the purpose of supplying any omission, curing any ambiguity, or
curing, correcting or supplementing any defective or inconsistent
provision;
(2) to
change or eliminate any of the provisions of this Indenture, provided that
any
such change or elimination shall become effective only when there is no Note
outstanding created prior to the execution of such supplemental indenture which
is entitled to the benefit of such provision or such change or elimination
is
applicable only to Notes issued after the effective date of such change or
elimination;
(3) to
establish the form of Notes of any series as permitted by Section 2.01 hereof
or
to establish or reflect any terms of any Note of any series determined pursuant
to Section 2.05 hereof;
(4) to
evidence the succession of another corporation to the Company as permitted
hereunder, and the assumption by any such successor of the covenants of the
Company herein and in the Notes;
(5) to
grant to or confer upon the Trustee for the benefit of the Holders any
additional rights, remedies, powers or authority;
(6) to
permit the Trustee to comply with any duties imposed upon it by
law;
(7) to
specify further the duties and responsibilities of, and to define further the
relationships among, the Trustee, any Authenticating Agent and any paying agent,
and to evidence the succession of a successor Trustee as permitted
hereunder;
(8) to
add to the covenants of the Company for the benefit of the Holders of one or
more series of Notes, to add to the security for all of the Notes, to surrender
a right or power conferred on the Company herein or to add any Event of Default
with respect to one or more series of Notes; and
(9) to
make any other change that is not prejudicial to the Holders.
(b)
The Trustee is hereby authorized to
join with the Company in the execution of any such supplemental indenture,
to
make any further appropriate agreements and stipulations which may be therein
contained and to accept the conveyance, transfer and assignment of any
46
property
thereunder, but the Trustee shall not be obligated to enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
(c)
Any supplemental indenture
authorized by this Section 13.01 may be executed by the Company and the Trustee
without the consent of the Holders of any of the Notes at the time outstanding,
notwithstanding any of the provisions of Section 13.02 hereof.
Section
13.02 SUPPLEMENTAL INDENTURES
WITH CONSENT OF NOTEHOLDERS.
(a)
With the consent (evidenced as
provided in Section 10.01 hereof) of the Holders of a majority in aggregate
principal amount of the Notes of all series at the time outstanding, considered
as one class, the Company, when authorized by Board Resolution, and the Trustee
may from time to time and at any time enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, or changing
in
any manner or eliminating any of the provisions of, this Indenture or of any
supplemental indenture or of modifying or waiving in any manner the rights
of
the Noteholders; provided, however, that if there shall be Notes of more than
one series Outstanding hereunder and if a proposed supplemental indenture shall
directly affect the rights of the Holders of Notes of one or more, but less
than
all, of such series, then the consent only of the Holders of a majority in
aggregate principal amount of the Outstanding Notes of all series so directly
affected, considered as one class, shall be required; provided further that
no
such supplemental indenture shall:
(1) change
the Stated Maturity of any Note, or reduce the rate (or change
the method of calculation thereof) or extend the time of payment of
interest thereon, or reduce the principal amount thereof or any premium thereon,
or change the coin or currency in which the principal of any Note or any premium
or interest thereon is payable, or change the date on which any Note may be
redeemed or adversely affect the rights of the Noteholders to institute suit
for
the enforcement of any payment of principal of or any premium or interest on
any
Note, in each case without the consent of the Holder of each Note so affected;
or
(2) modify
this Section 13.02(a) or reduce the aforesaid percentage of Notes, the Holders
of which are required to consent to any such supplemental indenture or to reduce
the percentage of Notes, the Holders of which are required to waive Events
of
Default, in each case, without the consent of the Holders of all of the Notes
affected thereby then outstanding.
(b)
Upon the request of the Company,
accompanied by a copy of the Board Resolution authorizing the execution of
any
such supplemental indenture, and upon the filing with the Trustee of evidence
of
the consent of Noteholders as aforesaid, the Trustee shall join with the Company
in the execution of such supplemental indenture unless such supplemental
indenture affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such supplemental indenture.
(c)
A supplemental indenture which
changes, waives or eliminates any covenant or other provision of this Indenture
(or any supplemental indenture) which has expressly been included solely for
the
benefit of one or more series of Notes, or which modifies the rights of the
Holders of Notes of such series with respect to such covenant or provision,
shall be deemed not to affect the rights under this Indenture of the Holders
of
Notes of any other series.
47
(d)
It shall not be necessary for the
consent of the Holders of Notes under this Section 13.02 to approve the
particular form of any proposed supplemental indenture, but it shall be
sufficient if such consent shall approve the substance thereof.
(e)
Promptly after the execution by the
Company and the Trustee of any supplemental indenture pursuant to this Section
13.02, the Trustee shall give notice in the manner provided in Section 15.10
hereof, setting forth in general terms the substance of such supplemental
indenture, to all Noteholders. Any failure of the Trustee to give such notice
or
any defect therein shall not, however, in any way impair or affect the validity
of any such supplemental indenture.
Section
13.03 COMPLIANCE WITH TRUST
INDENTURE ACT; EFFECT OF SUPPLEMENTAL INDENTURES. Any supplemental indenture
executed pursuant to this Article XIII shall comply with the TIA. Upon the
execution of any supplemental indenture pursuant to this Article XIII, the
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the
Noteholders shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be deemed to
be
part of the terms and conditions of this Indenture for any and all
purposes.
Section
13.04 NOTATION ON NOTES. Notes
of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article XIII may bear a notation in
form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Notes of any series so
modified as approved by the Trustee and the Board of Directors with respect
to
any modification of this Indenture contained in any such supplemental indenture
may be prepared and executed by the Company, authenticated by the Trustee and
delivered in exchange for the Notes of such series then
outstanding.
Section
13.05 EVIDENCE OF COMPLIANCE OF
SUPPLEMENTAL INDENTURE TO BE FURNISHED TRUSTEE. The Trustee, subject to Sections
9.01 and 9.02 hereof, shall be entitled to receive an Officers' Certificate
and
an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant hereto complies with the requirements of this Article XIII
and
that all conditions precedent to its execution have been met.
ARTICLE
XIV
IMMUNITY
OF INCORPORATORS,
STOCKHOLDERS,
OFFICERS AND DIRECTORS; LIMITATION OF LIABILITY
Section
14.01 INDENTURE AND NOTES
SOLELY CORPORATE OBLIGATIONS. No recourse for the payment of the principal
of or
any premium or interest on any Note, or for any claim based thereon or otherwise
in respect thereof, and no recourse under or upon any obligation, covenant
or
agreement of the Company, contained in this Indenture, or in any supplemental
indenture, or in any Note, or because of the creation of any indebtedness
represented thereby, shall be had against any incorporator, stockholder, officer
or director, as such, past, present or future, of the Company or of any
successor corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitution,
48
statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise;
it being expressly understood that all such liability is hereby expressly waived
and released as a condition of, and as a consideration for, the execution of
this Indenture and the issuance of the Notes.
Section
14.02 LIMITATION OF LIABILITY
OF TRUSTEE. In no case shall the Bank (or any Person acting as
successor trustee under the Indenture) be personally liable for or on account
of
any of the statements, representations, warranties, covenants or obligations
stated to be those of the Company hereunder or in any of the other documents
contemplated hereby, all such liability, if any, being expressly waived by
the
parties hereto and any person claiming by, through or under such
party.
ARTICLE
XV
MISCELLANEOUS
PROVISIONS
Section
15.01 PROVISIONS BINDING ON
COMPANY'S SUCCESSORS. All the covenants, stipulations, promises and agreements
made by the Company in this Indenture shall bind its successors and assigns
whether so expressed or not.
Section
15.02 OFFICIAL ACTS BY
SUCCESSOR CORPORATION. Any act or proceeding by any provision of this Indenture
authorized or required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with like force
and
effect by the like board, committee or officer of any corporation that shall
at
the time be the lawful successor of the Company.
Section
15.03 NOTICES. Any notice or
demand which by any provision of this Indenture is required or permitted to
be
given or served by the Trustee or by the Noteholders on the Company may be
given
or served by being deposited postage prepaid in a post office letter box
addressed (until another address is filed by the Company with the Trustee)
at
the Principal Executive Offices of the Company, to the attention of the
Secretary. Any notice, direction, request or demand by any Noteholder or the
Company to or upon the Trustee shall be deemed to have been sufficiently given
or made, for all purposes, if given or made to, or sent by registered mail
to,
the Corporate Trust Officer of the Trustee to the attention of the Corporate
Trust Administration, but shall be deemed effective only upon actual
receipt.
Section
15.04 GOVERNING LAW; CONSENT TO
JURISDICTION; WAIVER OF JURY TRIAL. This Indenture and each Note shall be
governed by and deemed to be a contract under, and construed in accordance
with,
the laws of the State of New York, and for all purposes shall be construed
in
accordance with the laws of said State without regard to conflicts of law
principles thereof. Any action or proceeding arising out of or
relating to this Indenture or the transactions contemplated hereby may be
instituted in the federal courts of the United States of America located in
the
City of New York or the courts of the State of New York in each case located
in
the City of New York, and each party irrevocably submits to the exclusive
jurisdiction (except for proceedings instituted in regard to the enforcement
of
a judgment of any such court as to which such jurisdiction is non-exclusive)
of
such courts in any such suit, action or proceeding. The parties
irrevocably and unconditionally waive any objection to the laying of venue
of
any suit, action or other proceeding in such courts and irrevocably and
unconditionally waive and agree not to plead or claim in any such court has
been
brought in an inconvenient forum. Service of any process, summons,
notice or document by mail to the address of the Principal Executive Offices
of
the Company shall be effective service of process upon the
49
Company
for any suit, action or other proceeding brought in any such
court. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT OF TRIAL
BY
JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE,
THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section
15.05 EVIDENCE OF COMPLIANCE
WITH CONDITIONS PRECEDENT.
(a)
Upon any application or demand by
the Company to the Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture (including any
covenants compliance with which constitutes a condition precedent) relating
to
the proposed action have been complied with and an Opinion of Counsel stating
that, in the opinion of such counsel, all such conditions precedent have been
complied with.
(b)
Each certificate or opinion
provided for in this Indenture and delivered to the Trustee with respect to
compliance with a condition or covenant provided for in this Indenture (other
than the certificates delivered pursuant to Section 6.06 hereof) shall include
(1) a statement that each Person making such certificate or opinion has read
such covenant or condition and the definitions relating thereto; (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based; (3) a statement that, in the opinion of each such Person, such Person
has
made such examination or investigation as is necessary to enable such Person
to
express an informed opinion as to whether or not such covenant or condition
has
been complied with; and (4) a statement as to whether or not, in the opinion
of
each such Person, such condition or covenant has been complied
with.
(c)
In any case where several matters
are required to be certified by, or covered by an opinion of, any specified
Person, it is not necessary that all such matters be certified by, or covered
by
the opinion of, only one such Person, or that they be so certified or covered
by
only one document, but one such Person may certify or give an opinion with
respect to some matters and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to such matters in one
or
several documents.
(d)
Any certificate or opinion of an
officer of the Company may be based, insofar as it relates to legal matters,
upon a certificate or opinion of, or representations by, counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the matters upon
which
such certificate or opinion is based are erroneous. Any such certificate or
opinion of counsel delivered under the Indenture may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations
by, an officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company, unless
such
person knows, or in the exercise of reasonable care should know, that the
certificate or opinion of representations with respect to such matters are
erroneous. Any opinion of counsel delivered hereunder may contain standard
exceptions and qualifications reasonably satisfactory to the
Trustee.
(e)
Any certificate, statement or
opinion of any officer of the Company, or of counsel, may be based, insofar
as
it relates to accounting matters, upon a certificate or opinion of or
representations by an independent public accountant or firm of accountants,
unless such officer or counsel, as the case may be, knows that the certificate
or opinions or representations
50
with
respect to the accounting matters upon which the certificate, statement or
opinion of such officer or counsel may be based as aforesaid are erroneous,
or
in the exercise of reasonable care should know that the same are erroneous.
Any
certificate or opinion of any firm of independent public accountants filed
with
the Trustee shall contain a statement that such firm is
independent.
(f)
Where any Person is required to
make, give or execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.
Section
15.06 BUSINESS DAYS. Unless
otherwise provided pursuant to Section 2.05(c) hereof, in any case where the
date of Maturity of the principal of or any premium or interest on any Note
or
the date fixed for redemption of any Note is not a Business Day, then payment
of
such principal or any premium or interest need not be made on such date but
may
be made on the next succeeding Business Day with the same force and effect
as if
made on the date of Maturity or the date fixed for redemption, and, in the
case
of timely payment thereof, no interest shall accrue for the period from and
after such Interest Payment Date or the date on which the principal or premium
of the Note is required to be paid.
Section
15.07 TRUST INDENTURE ACT TO
CONTROL. If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by the TIA, such required
provision of the TIA shall govern.
Section
15.08 TABLE OF CONTENTS,
HEADINGS, ETC. The table of contents and the titles and headings of the articles
and sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof, and shall in no way modify or
restrict any of the terms or provisions hereof.
Section
15.09 EXECUTION IN
COUNTERPARTS. This Indenture may be executed in any number of counterparts,
each
of which shall be an original, but such counterparts shall together constitute
but one and the same instrument.
Section
15.10 MANNER OF MAILING NOTICE
TO NOTEHOLDERS.
(a)
Any notice or demand which by any
provision of this Indenture is required or permitted to be given or served
by
the Trustee or the Company to or on the Holders of Notes, as the case may be,
shall be given or served by first-class mail, postage prepaid, addressed to
the
Holders of such Notes at their last addresses as the same appear on the register
for the Notes referred to in Section 2.06, and any such notice shall be deemed
to be given or served by being deposited in a post office letter box in the
form
and manner provided in this Section 15.10. In case by reason of the suspension
of regular mail service or by reason of any other cause it shall be
impracticable to give notice to any Holder by mail, then such notification
to
such Holder as shall be made with the approval of the Trustee shall constitute
a
sufficient notification for every purpose hereunder.
(b)
The Company shall also provide any
notices required under this Indenture by publication, but only to the extent
that such publication is required by the TIA, the rules and regulations of
the
Commission or any securities exchange upon which any series of Notes is
listed.
51
Section
15.11 APPROVAL BY TRUSTEE OF
COUNSEL. Wherever the Trustee is required to approve counsel who is to furnish
evidence of compliance with conditions precedent in this Indenture, such
approval by the Trustee shall be deemed to have been given upon the taking
of
any action by the Trustee pursuant to and in accordance with the certificate
or
opinion so furnished by such counsel.
* * * *
52
IN
WITNESS WHEREOF, KANSAS CITY
POWER & LIGHT COMPANY has caused this Indenture to be signed and
acknowledged by its Treasurer and attested by its Assistant Secretary, and
THE
BANK OF NEW YORK TRUST COMPANY, N.A. has caused this Indenture to be signed
and
acknowledged by its duly authorized officer, as of the day and year first
written above.
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KANSAS
CITY POWER & LIGHT
COMPANY
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By:
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/s/ Michael
W.
Cline
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Name:
Michael
W.
Cline
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Title:
Treasurer
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ATTEST:
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/s/
Mark G. English
______
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Name: Mark
G. English
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Title: Assistant
Secretary
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THE
BANK OF NEW YORK TRUST COMPANY, N.A. AS TRUSTEE
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By:
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/s/
M. Callahan
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Name M.
Callahan
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Title
Vice President
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) ss.
On
the
30th day of May, 2007, before me personally came Michael W. Cline, to me known,
who, being by me duly sworn, did depose and say that he is Treasurer 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.
[NOTARIAL
SEAL]
Renee Ray
Notary Public-Notary Seal
State of Missouri, Jackson County
Commission #06919182
My Commission expires Aug. 30, 2010
_
/s/
Renee
Ray
______________
Notary
Public
) ss.
On
the
30th day of May, 2007, before me personally came Mark G. English, to me known,
who, being by me duly sworn, did depose and say that he is Assistant Secretary
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.
[NOTARIAL
SEAL]
Renee Ray
Notary Public-Notary Seal
State of Missouri, Jackson County
Commission #06919182
My Commission expires Aug. 30, 2010
_
/s/
Renee
Ray
______________
Notary
Public