Exhibit 4.8
GOLDEN STAR RESOURCES LTD.
as Issuer
and
-----------------------------
as Trustee
-----------------------------
INDENTURE
dated as of ________________, 200__
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE........................................................... 1
SECTION 1.01 Certain Definitions............................................................... 1
SECTION 1.02 Other Definitions................................................................. 4
SECTION 1.03 Trust Indenture Act............................................................... 4
SECTION 1.04 Rules of Construction............................................................. 5
ARTICLE 2. THE SECURITIES....................................................................................... 5
SECTION 2.01 Unlimited In Amount, Issuable In Series, Form and Dating.......................... 5
SECTION 2.02 Execution and Authentication...................................................... 7
SECTION 2.03 Registrar and Paying Agent........................................................ 8
SECTION 2.04 Paying Agent to Hold Money in Trust............................................... 8
SECTION 2.05 Securityholder Lists.............................................................. 9
SECTION 2.06 Transfer and Exchange............................................................. 9
SECTION 2.07 Replacement Securities............................................................ 9
SECTION 2.08 Outstanding Securities............................................................ 10
SECTION 2.09 Temporary Securities.............................................................. 10
SECTION 2.10 Cancellation...................................................................... 10
SECTION 2.11 Defaulted Interest................................................................ 11
SECTION 2.12 Special Record Dates.............................................................. 11
SECTION 2.13 Global Securities................................................................. 11
SECTION 2.14 CUSIP Numbers..................................................................... 13
ARTICLE 3. REDEMPTION........................................................................................... 13
SECTION 3.01 Notices to Trustee................................................................ 13
SECTION 3.02 Selection of Securities to Be Redeemed............................................ 13
SECTION 3.03 Notice of Redemption.............................................................. 14
SECTION 3.04 Effect of Notice of Redemption.................................................... 14
SECTION 3.05 Deposit of Redemption Price....................................................... 15
SECTION 3.06 Securities Redeemed in Part....................................................... 15
ARTICLE 4. COVENANTS............................................................................................ 15
SECTION 4.01 Payment of Securities............................................................. 15
SECTION 4.02 Commission Reports................................................................ 15
SECTION 4.03 Compliance Certificate............................................................ 15
ARTICLE 5. SUCCESSORS........................................................................................... 16
SECTION 5.01 When Company May Merge, etc....................................................... 16
SECTION 5.02 Successor Corporation Substituted................................................. 16
ARTICLE 6. DEFAULTS AND REMEDIES................................................................................ 17
SECTION 6.01 Events of Default................................................................. 17
SECTION 6.02 Acceleration...................................................................... 18
SECTION 6.03 Other Remedies.................................................................... 18
SECTION 6.04 Waiver of Defaults................................................................ 19
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TABLE OF CONTENTS (CONT'D)
Page
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SECTION 6.05 Control by Majority............................................................... 19
SECTION 6.06 Limitation on Suits............................................................... 19
SECTION 6.07 Rights of Holders to Receive Payment.............................................. 20
SECTION 6.08 Collection Suit by Trustee........................................................ 20
SECTION 6.09 Trustee May File Proofs of Claim.................................................. 20
SECTION 6.10 Priorities........................................................................ 21
SECTION 6.11 Undertaking for Costs............................................................. 21
ARTICLE 7. TRUSTEE.............................................................................................. 21
SECTION 7.01 Duties of Trustee................................................................. 21
SECTION 7.02 Rights of Trustee................................................................. 22
SECTION 7.03 Individual Rights of Trustee...................................................... 23
SECTION 7.04 Trustee's Disclaimer.............................................................. 23
SECTION 7.05 Notice of Defaults................................................................ 23
SECTION 7.06 Reports by Trustee to Holders..................................................... 24
SECTION 7.07 Compensation and Indemnity........................................................ 24
SECTION 7.08 Replacement of Trustee............................................................ 25
SECTION 7.09 Successor Trustee by Merger, etc.................................................. 26
SECTION 7.10 Eligibility; Disqualification..................................................... 26
SECTION 7.11 Preferential Collection of Claims Against Company................................. 26
ARTICLE 8. SATISFACTION AND DISCHARGE; DEFEASANCE............................................................... 26
SECTION 8.01 Satisfaction and Discharge of Indenture........................................... 26
SECTION 8.02 Application of Trust Funds; Indemnification....................................... 27
SECTION 8.03 Legal Defeasance of Securities of any Series...................................... 28
SECTION 8.04 Covenant Defeasance............................................................... 30
SECTION 8.05 Repayment to Company.............................................................. 31
ARTICLE 9. SUPPLEMENTS, AMENDMENTS AND WAIVERS.................................................................. 31
SECTION 9.01 Without Consent of Holders........................................................ 31
SECTION 9.02 With Consent of Holders........................................................... 32
SECTION 9.03 Revocation and Effect of Consents................................................. 33
SECTION 9.04 Notation on or Exchange of Securities............................................. 33
SECTION 9.05 Trustee to Sign Amendments, etc................................................... 33
ARTICLE 10. MISCELLANEOUS....................................................................................... 34
SECTION 10.01 Notices......................................................................... 34
SECTION 10.02 Communication By Holders With other Holders..................................... 35
SECTION 10.03 Certificate and Opinion as to Conditions Precedent.............................. 35
SECTION 10.04 Statements Required in Certificate or Opinion................................... 35
SECTION 10.05 Rules by Trustee and Agents..................................................... 36
SECTION 10.06 Legal Holidays.................................................................. 36
SECTION 10.07 No Recourse Against Others...................................................... 36
SECTION 10.08 Counterparts.................................................................... 36
SECTION 10.09 Governing Law................................................................... 36
SECTION 10.10 Severability.................................................................... 36
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TABLE OF CONTENTS (CONT'D)
Page
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SECTION 10.11 Effect of Headings, Table of Contents, etc...................................... 36
SECTION 10.12 Successors and Assigns.......................................................... 37
SECTION 10.13 No Interpretation of Other Agreements........................................... 37
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CROSS-REFERENCE TABLE*
Trust Indenture Act Section Indenture Section
--------------------------- -----------------
310 (a)(1) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
(a)(5) 7.10
(b) 7.03; 7.08; 7.10
(c) N.A.
311 (a) 7.11
(b) 7.11
(c) N.A.
312 (a) 2.05
(b) 10.02
(c) 10.02
313 (a) 7.06
(b) 7.06
(c) 7.06; 10.01
(d) 7.06
314 (a) 4.02; 10.01
(b) N.A.
(c)(1) 10.03
(c)(2) 10.03
(c)(3) N.A.
(d) N.A.
(e) 10.04
(f) N.A.
315 (a) 7.01(b)(i); 7.01(b)(ii); 7.02
(b) 7.05; 10.01
(c) 7.01(a); 7.02
(d) 7.01(c); 7.02
(e) 6.11
316 (a)(last sentence) 2.08
(a)(1)(A) 6.05
(a)(1)(B) 6.04
(a)(2) N.A.
(b) 6.07
(c) 2.12; 9.03
317 (a)(1) 6.08
(a)(2) 6.09
(b) 2.04
318 (a) 1.03
(b) N.A.
(c) 1.03
----------------
N.A. means not applicable.
* This Cross-Reference Table is not part of the Indenture.
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INDENTURE dated as of ____________, 20__ between Golden Star Resources
Ltd., a Canadian corporation (the "Company"), and _______________________, a
_________________, as Trustee (the "Trustee").
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures, notes
or other evidences of indebtedness to be issued in one or more series (the
"Securities"), as herein provided, up to such principal amount as may from time
to time be authorized in or pursuant to one or more resolutions of the Board of
Directors or by supplemental indenture.
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of each series of the Securities:
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 CERTAIN DEFINITIONS.
"Affiliate" means any Person controlling or controlled by or under common
control with the Company. For purposes of this definition, "control" (including,
with correlative meanings, the terms "controlling," "controlled by" and "under
common control with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting stock, by agreement or otherwise.
"Agent" means any Registrar, Paying Agent, authenticating agent or
co-Registrar.
"Board of Directors" means the Board of Directors of the Company or any
authorized committee thereof.
"Board Resolution" means 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 or pursuant to authorization by the Board of Directors and to be in
full force and effect on the date of such certification (and delivered to the
Trustee, if appropriate).
"Closing Date" means the date on which the Securities of a particular
series were originally issued under this Indenture.
"Commission" means the Securities and Exchange Commission.
"Company" means the party named as such above until a successor replaces
it pursuant to this Indenture and thereafter means the successor.
"Company Order" means a written order signed in the name of the Company by
two officers, one of whom must be the Company's principal executive officer,
principal financial officer or principal accounting officer.
"Company Request" means a written request signed in the name of the
Company by its Chairman of the Board, a President or a Vice President, and by
its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
"Corporate Trust Office" shall mean the corporate trust office of the
Trustee, which shall initially be ____________________.
"Default" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"Depositary" means, with respect to the Securities of any series issuable
or issued in whole or in part in the form of one or more Global Securities, the
person designated as Depositary for such series by the Company, which Depositary
shall be a clearing agency registered under the Exchange Act; and if at any time
there is more than one such person, "Depositary" as used with respect to the
Securities of any series shall mean the Depositary with respect to the
Securities of such series.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are applicable to the circumstances as of the Closing Date.
"Global Security" shall mean a Security issued to evidence all or a part
of any series of Securities that is executed by the Company and authenticated
and delivered by the Trustee to a Depositary or pursuant to such Depositary's
instructions, all in accordance with this Indenture and pursuant to Section
2.01, which shall be registered as to principal and interest in the name of such
Depositary or its nominee.
"Holder" or "Securityholder" means a Person in whose name a Security is
registered in the register of Securities kept by the Registrar.
"Indenture" means this Indenture, as amended or supplemented from time to
time.
"Interest" when used with respect to an Original Issue Discount Security
that by its terms bears interest only after maturity, means interest payable
after maturity.
"Maturity" when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officer" means the Chairman of the Board, the Chief Executive Officer,
the President, the Chief Operating Officer, the Chief Financial Officer, any
Vice President, the Treasurer, the Controller, the Secretary, any Assistant
Treasurer or any Assistant Secretary of the Company.
2
"Officers Certificate" means a certificate signed by two Officers, one of
whom must be the principal executive officer, principal financial officer or
principal accounting officer of the Company.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Original Issue Discount Security" means any Security which provides that
an amount less than its principal amount is due and payable upon acceleration
after an Event of Default.
"Person" means any individual, corporation, partnership, joint venture,
association, limited liability company, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Principal" of a Security means the principal amount due on the Stated
Maturity of the Security plus the premium, if any, on the Security.
"Securities" means the Securities authenticated and delivered under this
Indenture.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
"Stated Maturity" when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subsidiary" means any corporation, partnership or limited liability
company of which the Company, or the Company and one or more Subsidiaries, or
any one or more Subsidiaries, directly or indirectly owns or own (i) in the case
of a corporation, voting securities entitling the holders thereof to elect a
majority of the directors, either at all times or so long as there is no default
or contingency which permits the holders of any other class of securities to
vote for the election of one or more directors, (ii) in the case of a
partnership, at least a majority of the general partnership interests and at
least a majority of total outstanding partnership interests or (iii) in the case
of a limited liability company, at least a majority of the membership interests.
"TIA" means the Trust Indenture Act of 1939, as amended from time to time,
and as in effect on the date of execution of this Indenture; provided, however,
that in the event the TIA is amended after such date, "TIA" means, to the extent
required by such amendment, the Trust Indenture Act, as so amended.
"Trustee" means the party named as such above until a successor becomes
such pursuant to this Indenture and thereafter means or includes each party who
is then a trustee hereunder, and if at any time there is more than one such
party, "Trustee" as used with respect to the Securities of any series means the
Trustee with respect to Securities of that series. If Trustees with respect to
different series of Securities are trustees under this Indenture, nothing herein
shall constitute the Trustees co-trustees of the same trust, and each Trustee
shall be the trustee of a trust separate and apart from any trust administered
by any other Trustee with respect to a different series of Securities.
3
"Trust Officer" means any officer or assistant officer of the Trustee
assigned by the Trustee to administer its corporate trust matters.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America that is not callable or
redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation or a specific payment of interest on or
principal of any such U.S. Government obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government obligation evidenced by such
depository receipt.
SECTION 1.02 OTHER DEFINITIONS.
Term Defined in Section
---- ------------------
"Bankruptcy Law" 6.01
"Custodian" 6.01
"Event of Default" 6.01
"Legal Holiday" 10.06
"Paying Agent" 2.03
"Place of Payment" 2.01
"Registrar" 2.03
SECTION 1.03 TRUST INDENTURE ACT.
The provisions of TIA Sections 310 through 317 that impose duties on any
Person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture
upon and so long as the Indenture and Securities are subject to the TIA. If any
provision of this Indenture limits, qualifies or conflicts with such duties, the
duties imposed by the Indenture shall control. If a provision of the TIA
requires or permits a provision of this Indenture and the TIA provision is
amended, then the Indenture provision shall be automatically amended to like
effect.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Securities.
"indenture securityholder" means a Securityholder.
"indenture to be qualified" means this Indenture.
4
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the Securities means the Company and any successor obligor on
the Securities.
SECTION 1.04 RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(i) a term defined in Section 1.01 or 1.02 has the meaning
assigned to it therein, and terms defined in the TIA and not
defined in Section 1.01 or 1.02 have the meanings assigned to
them in the TIA;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and words in the
plural include the singular;
(v) provisions apply to successive events and transactions; and
(vi) "including" means without limitation.
ARTICLE 2.
THE SECURITIES
SECTION 2.01 UNLIMITED IN AMOUNT, ISSUABLE IN SERIES, FORM AND DATING.
The aggregate principal amount of Securities that may be authenticated and
delivered under this Indenture is unlimited. The Securities may be issued in one
or more series. There shall be established in or pursuant to a Board Resolution
or an Officers Certificate pursuant to authority granted under a Board
Resolution or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series:
(a) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other securities);
(b) the price or prices (expressed as a percentage of the aggregate
principal amount thereof) at which the Securities of the series will
be issued;
(c) any limit upon the aggregate principal amount of Securities of the
series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities
of the series pursuant to this Article 2);
(d) the date or dates on which the principal of the Securities of the
series is payable;
5
(e) the rate or rates that may be fixed or variable at which the
Securities of the series shall bear interest, if any, or the manner
in which such rate or rates shall be determined, the date or dates
from which such interest shall accrue, the interest payment dates on
which such interest shall be payable and the record dates for the
determination of Holders to whom interest is payable;
(f) the place or places where the principal of and any interest on
Securities of the series shall be payable, if other than as provided
herein;
(g) one currency or currencies in which the Securities are issued and
payable;
(h) the conversion or exchange provisions applicable to the Securities;
(i) whether and upon what terms the series of Securities will be
convertible into equity or debt securities of the Company;
(j) the price or prices at which (if any), the period or periods within
which (if any) and the terms and conditions upon which (if other
than as provided herein) Securities of the series may be redeemed,
in whole or in part, at the option, or as an obligation, of the
Company;
(k) the obligation, if any, of the Company to redeem, purchase or repay
Securities of the series, in whole or in part, pursuant to any
sinking fund or analogous provisions or at the option of a Holder
thereof and the price or prices at which and the period and periods
within which and the terms and conditions upon which Securities of
the series shall be redeemed, purchased or repaid pursuant to such
obligation;
(l) if other than denominations of $1,000 and any multiple thereof, the
denominations in which Securities of the series shall be issuable;
(m) whether the Securities of the series shall be issued in whole or in
part in the form of a Global Security or Securities; the terms and
conditions, if any, upon which such Global Security or Securities
may be exchanged in whole or in part for other individual
securities, and the Depositary for such Global Security and
Securities;
(n) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant to
Section 6.02 hereof;
(o) any Events of Default with respect to the Securities of a particular
series, if not set forth herein;
(p) any additions or changes to, or deletions from, the covenants set
forth in Article 4 or the acceleration provisions applicable to
Securities of the series;
(q) the provisions, if any, relating to any security provided for the
Securities of the series;
6
(r) the Trustee for the series of Securities;
(s) any other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture, but which may modify or
delete any provision of this Indenture with respect to such series;
provided, however, that no such term may modify or delete any
provision hereof if imposed by the TIA; and provided, further, that
any modification or deletion of the rights, duties or immunities of
the Trustee hereunder shall have been consented to in writing by the
Trustee).
All Securities of any series shall be substantially identical except as to
denomination and except as may otherwise be provided in or pursuant to such
Board Resolution or Officers Certificate or in any such indenture supplemental
hereto.
The principal of and any interest on the Securities shall be payable at
the office or agency of the Company designated in the form of Security for the
series (each such place herein called the "Place of Payment"); provided,
however, that payment of interest may be made at the option of the Company by
check mailed to the address of the Person entitled thereto as such address shall
appear in the register of Securities referred to in Section 2.03 hereof.
Each Security shall be in one of the forms approved from time to time by
or pursuant to a Board Resolution or Officers Certificate, or established in one
or more indentures supplemental hereto. Prior to the delivery of a Security to
the Trustee for authentication in any form approved by or pursuant to a Board
Resolution or Officers Certificate, the Company shall deliver to the Trustee the
Board Resolution or Officers Certificate by or pursuant to which such form of
Security has been approved, which Board Resolution or Officers Certificate shall
have attached thereto a true and correct copy of the form of Security that has
been approved by or pursuant thereto.
The Securities may have notations, legends or endorsements required by
law, stock exchange rule or usage. Each Security shall be dated the date of its
authentication.
SECTION 2.02 EXECUTION AND AUTHENTICATION.
Two officers shall sign the Securities for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Security no longer holds that office
at the time the Security is authenticated, the Security shall nevertheless be
valid.
A Security shall not be valid until authenticated by the manual or
facsimile signature of the Trustee. The signature shall be conclusive evidence
that the Security has been authenticated under this Indenture.
The Trustee shall authenticate Securities for original issue upon a
Company Order.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Securities. An authenticating agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes
7
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with the Company or an Affiliate of the Company.
SECTION 2.03 REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where Securities of a
particular series may be presented for registration of transfer or for exchange
(the "Registrar") and an office or agency where Securities of that series may be
presented for payment (a "Paying Agent"). The Registrar for a particular series
of Securities shall keep a register of the Securities of that series and of
their transfer and exchange. The Company may appoint one or more co-Registrars
and one or more additional paying agents for each series of Securities. The term
"Paying Agent" includes any additional paying agent. The Company may change any
Paying Agent, Registrar or co-Registrar without prior notice to any
Securityholder. The Company shall notify the Trustee in writing of the name and
address of any Agent not a party to this Indenture.
If the Company fails to maintain a Registrar or Paying Agent for any
series of Securities, the Trustee shall act as such. The Company or any of its
Affiliates may act as Paying Agent, Registrar or co-Registrar.
The Company hereby appoints the Trustee the initial Registrar and Paying
Agent for each series of Securities unless another Registrar or Paying Agent, as
the case may be, is appointed prior to the time Securities of that series are
first issued.
SECTION 2.04 PAYING AGENT TO HOLD MONEY IN TRUST.
Whenever the Company has one or more Paying Agents it will, prior to each
due date of the principal of or interest on, any Securities, deposit with a
Paying Agent a sum sufficient to pay the principal or interest so becoming due,
such sum to be held in trust for the benefit of the Persons entitled to such
principal or interest, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that such Paying Agent will hold in trust for the benefit of
the Securityholders of the particular series for which it is acting, or the
Trustee, all money held by the Paying Agent for the payment of principal or
interest on the Securities of such series, and that such Paying Agent will
notify the Trustee of any Default by the Company or any other obligor of the
series of Securities in making any such payment and at any time during the
continuance of any such Default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such Paying Agent. If
the Company or an Affiliate acts as Paying Agent, it shall segregate and hold in
a separate trust fund for the benefit of the Securityholders of the particular
series for which it is acting all money held by it as Paying Agent. The Company
at any time may require a Paying Agent to pay all money held by it to the
Trustee. Upon so doing, the Paying Agent (if other than the Company or an
Affiliate of the Company) shall have no further liability for such money. Upon
any bankruptcy or reorganization proceedings relating to the Company, the
Trustee shall serve as Paying Agent for the Securities.
8
SECTION 2.05 SECURITYHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders, separately by series, and shall otherwise comply with TIA
Section 312(a). If the Trustee is not the Registrar, the Company shall furnish
to the Trustee at least seven business days before each interest payment date
and at such other times as the Trustee may request in writing, a list in such
form and as of such date as the Trustee may reasonably require of the names and
addresses of Securityholders, separately by series, relating to such interest
payment date or request, as the case may be.
SECTION 2.06 TRANSFER AND EXCHANGE.
Where Securities of a series are presented to the Registrar or a
co-Registrar with a request to register a transfer or to exchange them for an
equal principal amount of Securities of the same series of other authorized
denominations, the Registrar shall register the transfer or make the exchange if
its requirements for such transactions are met. To permit registrations of
transfers and exchanges, the Company shall issue and the Trustee shall
authenticate Securities at the Registrar's request.
No service charge shall be made for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer tax or similar governmental charge payable upon
exchanges pursuant to Sections 2.09, 2.13, 3.06 or 9.04).
The Company need not issue, and the Registrar or co-Registrar need not
register the transfer or exchange of, (i) any Security of a particular series
during a period beginning at the opening of business 15 days before the day of
any selection of Securities of that series for redemption under Section 3.02 and
ending at the close of business on the day of selection, or (ii) any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security of that series being redeemed in part.
SECTION 2.07 REPLACEMENT SECURITIES.
If a mutilated Security is surrendered to the Trustee or if the Holder of
a Security claims that the Security has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate a replacement
Security of same series if the Company's and the Trustee's requirements are met.
The Trustee or the Company may require an indemnity bond to be furnished which
is sufficient in the judgment of both to protect the Company, the Trustee, and
any Agent from any loss which any of them may suffer if a Security is replaced.
The Company may charge such Holder for its expenses in replacing a Security.
Every replacement Security is an obligation of the Company and shall be
entitled to all the benefit of the Indenture equally and proportionately with
any and all other Securities of the same series.
9
SECTION 2.08 OUTSTANDING SECURITIES.
The Securities of any series outstanding at any time are all the
Securities of that series authenticated by the Trustee except for those canceled
by it, those delivered to it for cancellation, and those described in this
Section as not outstanding.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If Securities are considered paid under Section 4.01, they cease to be
outstanding and interest on them ceases to accrue.
A Security does not cease to be outstanding because the Company or an
Affiliate holds the Security; however, TIA Section 316(a) shall apply where
appropriate.
For each series of Original Issue Discount Securities, the principal
amount of such Securities that shall be deemed to be outstanding and used to
determine whether the necessary Holders have given any request, demand,
authorization, direction, notice, consent or waiver shall be the principal
amount of such Securities that could be declared to be due and payable upon
acceleration upon an Event of Default as of the date of such determination. When
requested by the Trustee, the Company shall advise the Trustee of such amount,
showing its computations in reasonable detail.
SECTION 2.09 TEMPORARY SECURITIES.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities upon a written
order of the Company signed by one Officer of the Company. Temporary Securities
shall be substantially in the form of definitive Securities but may have
variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Securities in exchange for temporary Securities.
Holders of temporary securities shall be entitled to all of the benefits
of this Indenture.
SECTION 2.10 CANCELLATION.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee shall cancel all Securities surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall return such
canceled Securities to the Company at the Company's written request. The Company
may not issue new Securities to replace Securities that it has paid or that have
been delivered to the Trustee for cancellation.
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SECTION 2.11 DEFAULTED INTEREST.
If the Company fails to make a payment of interest on any series of
Securities, it shall pay such defaulted interest plus (to the extent lawful) any
interest payable on the defaulted interest, in any lawful manner. It may elect
to pay such defaulted interest, plus any such interest payable on it, to the
Persons who are Holders of such Securities on which the interest is due on a
subsequent special record date. The Company shall notify the Trustee in writing
of the amount of defaulted interest proposed to be paid on each such Security.
The Company shall fix any such record date and payment date for such payment. At
least 15 days before any such record date, the Company shall mail to
Securityholders affected thereby a notice that states the record date, payment
date, and amount of such interest to be paid.
SECTION 2.12 SPECIAL RECORD DATES.
(a) The Company may, but shall not be obligated to, set a record date
for the purpose of determining the identity of Holders entitled to
consent to any supplement, amendment or waiver permitted by this
Indenture. If a record date is fixed, the Holders of Securities of
that series outstanding on such record date, and no other Holders,
shall be entitled to consent to such supplement, amendment or waiver
or revoke any consent previously given, whether or not such Holders
remain Holders after such record date. No consent shall be valid or
effective for more than 90 days after such record date unless
consents from Holders of the principal amount of Securities of that
series required hereunder for such amendment or waiver to be
effective shall have also been given and not revoked within such
90-day period.
(b) The Company may, but shall not be obligated to, fix any day as a
record date for the purpose of determining the Holders of any series
of Securities entitled to join in the giving or making of any notice
of Default, any declaration of acceleration, any request to
institute proceedings or any other similar direction. If a record
date is fixed, the Holders of Securities of that series outstanding
on such record date, and no other Holders, shall be entitled to join
in such notice, declaration, request or direction, whether or not
such Holders remain Holders after such record date; provided,
however, that no such action shall be effective hereunder unless
taken on or prior to the date 90 days after such record date.
SECTION 2.13 GLOBAL SECURITIES.
(a) Terms of Securities. A Board Resolution, a supplemental indenture
hereto or an Officers Certificate shall establish whether the
Securities of a series shall be issued in whole or in part in the
form of one or more Global Securities and the Depositary for such
Global Security or Securities.
(b) Transfer and Exchange. Notwithstanding any provisions to the
contrary contained in Section 2.06 of this Indenture and in addition
thereto, any Global Security shall be exchangeable pursuant to
Section 2.06 of this Indenture for Securities registered in the
names of Holders other than the Depositary for such Security or its
nominee only if (i) such Depositary notifies the Company that it is
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unwilling or unable to continue as Depositary for such Global
Security or if at any time such Depositary ceases to be a clearing
agency registered under the Exchange Act, and, in either case, the
Company fails to appoint a successor Depositary within 90 days of
such event or (ii) the Company executes and delivers to the Trustee
an Officers Certificate to the effect that such Global Security
shall be so exchangeable. Any Global Security that is exchangeable
pursuant to the preceding sentence shall be exchangeable for
Securities registered in such names as the Depositary shall direct
in writing in an aggregate principal amount equal to the principal
amount of the Global Security with like tenor and terms.
Except as provided in this paragraph (b) of this Section, a
Global Security may not be transferred except as a whole by the
Depositary with respect to such Global Security to a nominee of such
Depositary, by a nominee of such Depositary to such Depositary or
another nominee of such Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such a successor
Depositary.
(c) Legend. Any Global Security issued hereunder shall bear a legend in
substantially the following form:
"Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), New York, New York, to the issuer or its agent
for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such
other name as may be requested by an authorized representative of
DTC (and any payment is made to Cede & Co. or such other entity as
may be requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede
& Co. has an interest herein. Transfer of this Global Security shall
be limited to transfers in whole, but not in part, to nominees of
DTC or to a successor thereof or such successor's nominee and
limited to transfers made in accordance with the restrictions set
forth in the Indenture referred to herein."
(d) Acts of Holders. The Depositary, as a Holder, may appoint agents and
otherwise authorize participants to give or take any request,
demand, authorization, direction, notice, consent, waiver or other
action which a Holder is entitled to give or take under this
Indenture.
(e) Payments. Notwithstanding the other provisions of this Indenture,
unless otherwise specified as contemplated by Section 2.01 hereof,
payment of the principal of and interest, if any, on any Global
Security shall be made to the Person specified therein.
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(f) Consents, Declaration and Directions. Except as provided in
paragraph (e) of this Section, the Company, the Trustee and any
Agent shall treat a Person as the Holder of such principal amount of
outstanding Securities of such series represented by a Global
Security as shall be specified in a written statement of the
Depositary with respect to such Global Security, for purposes of
obtaining any consents, declarations or directions required to be
given by the Holders pursuant to this Indenture.
SECTION 2.14 CUSIP NUMBERS.
The Company in issuing any series of Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on such Securities or as contained in any notice and that reliance may
be placed only on the other identification numbers printed on such Securities,
and any such action relating to such notice shall not be affected by any defect
in or omission of such numbers in such notice. The Company shall promptly notify
the Trustee of any change in the "CUSIP" numbers.
ARTICLE 3.
REDEMPTION
SECTION 3.01 NOTICES TO TRUSTEE.
If the Company elects to redeem Securities of any series pursuant to any
optional redemption provisions thereof, it shall notify the Trustee of the
redemption date and the principal amount of Securities of that series to be
redeemed.
If the Company elects to reduce the principal amount of Securities of any
series to be redeemed pursuant to mandatory redemption provisions thereof, it
shall notify the Trustee of the amount of, and the basis for, any such
reduction. If the Company elects to credit against any such mandatory redemption
Securities it has not previously delivered to the Trustee for cancellation, it
shall deliver such Securities with such notice.
The Company shall give the notice provided for in this Section at least 45
days before the redemption date (unless a shorter notice period shall be
satisfactory to the Trustee), which notice shall specify the provisions of such
Security pursuant to which the Company elects to redeem such Securities.
SECTION 3.02 SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the securities of any series are to be redeemed, the
Trustee shall select the Securities of that series to be redeemed by a method
that complies with the requirements of any exchange on which the Securities of
that series are listed, or, if the Securities of that series are not listed on
an exchange, by lot or by such other method as the Trustee deems appropriate.
The Trustee shall make the selection not more than 75 days and not less than 30
days before the redemption date from Securities of that series outstanding and
not previously called for redemption. Except as otherwise provided as to any
particular series of Securities, Securities and
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portions thereof that the Trustee selects shall be in amounts equal to the
minimum authorized denomination for Securities of the series to be redeemed or
any integral multiple thereof. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called for
redemption. The Trustee shall notify the Company promptly in writing of the
Securities or portions of Securities to be called for redemption.
SECTION 3.03 NOTICE OF REDEMPTION.
Except as otherwise provided as to any particular series of Securities, at
least 30 days but not more than 60 days before a redemption date, the Company
shall mail a notice of redemption to each Holder whose Securities are to be
redeemed.
The notice shall identify the Securities of the series to be redeemed and
shall state:
(1) the redemption date;
(2) the redemption price;
(3) if any Security is being redeemed in part, the portion
of the principal amount of such Security to be redeemed
and that, after the redemption date, upon surrender of
such Security, a new Security or Securities in principal
amount equal to the unredeemed portion will be issued;
(4) the name and address of the Paying Agent;
(5) that Securities called for redemption must be
surrendered to the Paying Agent to collect the
redemption price;
(6) that, unless the Company defaults in payment of the
redemption price, interest on Securities called for
redemption ceases to accrue on and after the redemption
date; and
(7) the CUSIP number, if any, of the Securities to be
redeemed.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at its expense. The notice mailed in the manner herein
provided shall be conclusively presumed to have been duly given whether or not
the Holder receives such notice. In any case, failure to give such notice by
mail or any defect in the notice of the Holder of any Security shall not affect
the validity of the proceeding for the redemption of any other Security.
SECTION 3.04 EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Securities called for redemption become due and payable on the
redemption date for the redemption price. Upon surrender to the Paying Agent,
such Securities will be paid at the redemption price.
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SECTION 3.05 DEPOSIT OF REDEMPTION PRICE.
On or before the redemption date, the Company shall deposit with the
Paying Agent (or, if the Company or any Affiliate is the Paying Agent, shall
segregate and hold in trust) money sufficient to pay the redemption price of all
Securities called for redemption on that date, other than Securities that have
previously been delivered by the Company to the Trustee for cancellation. The
Paying Agent shall return to the Company any money not required for that
purpose.
SECTION 3.06 SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the Company shall
issue and the Trustee shall authenticate for the Holder at the expense of the
Company a new Security of same series equal in principal amount to the
unredeemed portion of the Security surrendered.
ARTICLE 4.
COVENANTS
SECTION 4.01 PAYMENT OF SECURITIES.
The Company shall pay or cause to be paid the principal of and interest on
the Securities on the dates and in the manner provided in this Indenture and the
Securities. Principal and interest shall be considered paid on the date due if
the Paying Agent, if other than the Company or an Affiliate, holds on that date
immediately available funds designated for and sufficient to pay all principal
and interest then due.
To the extent lawful, the Company shall pay interest on overdue principal
and overdue installments of interest at the rate per annum borne by the
applicable series of Securities.
SECTION 4.02 COMMISSION REPORTS.
The Company shall deliver to the Trustee within 15 days after it files
them 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 by rules and regulations prescribe) that the Company is
required to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act; provided, however the Company shall not be required to deliver to
the Trustee any materials for which the Company has sought and received
confidential treatment by the Commission. The Company also shall comply with the
other provisions of TIA Section 314(a).
SECTION 4.03 COMPLIANCE CERTIFICATE.
The Company shall deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company, an Officers Certificate stating that in the
course of the performance by the signers of their duties as officers of the
Company, they would normally have knowledge of any failure by the Company to
comply with all conditions, or default by the Company with respect to any
covenants, under this Indenture, and further stating whether or not they have
knowledge of any such failure or default and, if so, specifying each such
failure or default and the nature
15
thereof. For purposes of this Section, such compliance shall be determined
without regard to any period of grace or requirement of notice provided for in
this Indenture. The certificate need not comply with Section 10.03 hereof.
The Company shall, so long as any of the Securities are outstanding,
deliver to the Trustee, forthwith upon becoming aware of any Default or Event of
Default, an Officers Certificate specifying such Default or Event of Default and
what action the Company is taking or proposes to take with respect thereto.
ARTICLE 5.
SUCCESSORS
SECTION 5.01 WHEN COMPANY MAY MERGE, ETC.
Unless the terms of the Securities of a series provide otherwise, the
Company shall not consolidate or merge with or into (whether or not the Company
is the surviving corporation), or sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its properties or assets in one
or more related transactions to any Person unless:
(1) the Company is the surviving corporation or the Person
formed by or surviving any such consolidation or merger
(if other than the Company) or to which such sale,
assignment, transfer, lease, conveyance or other
disposition shall have been made is a corporation
organized and existing under the laws of the United
States, any state thereof or the District of Columbia;
(2) the Person formed by or surviving any such consolidation
or merger (if other than the Company) or the Person to
which such sale, assignment, transfer, lease, conveyance
or other disposition shall have been made assumes by
supplemental indenture all the obligations of the
Company under the Securities and this Indenture; and
(3) immediately prior to and after giving effect to the
transaction no Default or Event of Default shall have
occurred and be continuing.
The Company shall deliver to the Trustee on or prior to the consummation
of the proposed transaction an Officers Certificate to the foregoing effect and
an Opinion of Counsel stating that the proposed transaction and such
supplemental indenture comply with this Indenture.
SECTION 5.02 SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any transfer by the Company (other
than by lease) of all or substantially all of the assets of the Company in
accordance with Section 5.01 hereof, the successor corporation formed by such
consolidation or into which the Company is merged or to which such transfer 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
16
corporation had been named as the Company herein. In the event of any such
transfer, the predecessor Company shall be released and discharged from all
liabilities and obligations in respect of the Securities and the Indenture, and
the predecessor Company may be dissolved, wound up or liquidated at any time
thereafter.
ARTICLE 6.
DEFAULTS AND REMEDIES
SECTION 6.01 EVENTS OF DEFAULT.
An "Event of Default" occurs with respect to Securities of any particular
series if, unless in the establishing Board Resolution, Officers Certificate or
supplemental indenture hereto, it is provided that such series shall not have
the benefit of said Event of Default:
(1) the Company defaults in the payment of interest on any
Security of that series when the same becomes due and
payable, and the Default continues for a period of 30
days;
(2) the Company defaults in the payment of the principal of
any Security of that series when the same becomes due
and payable at maturity, upon redemption or otherwise;
(3) an Event of Default, as defined in the Securities of
that series, occurs and is continuing, or the Company
fails to comply with any of its other agreements in the
Securities of that series or in this Indenture with
respect to that series and the Default continues for the
period and after the notice specified below;
(4) the Company pursuant to or within the meaning of any
Bankruptcy Law:
a) commences a voluntary case;
b) consents to the entry of an order for relief
against it in an involuntary case;
c) consents to the appointment of a Custodian of it
or for all or substantially all of its property;
d) makes a general assignment for the benefit of its
creditors; or
e) admits in writing its inability generally to pay
its debts as the same become due.
(5) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
17
a) is for relief against the Company in an
involuntary case;
b) appoints a Custodian of the Company or for all or
substantially all of its property; or
c) orders the liquidation of the Company;
and the order or decree remains unstayed and in effect for 60 days;
or
(6) any other Event of Default provided with respect to
Securities of that series which is specified in a Board
Resolution, Officers Certificate or supplemental
indenture establishing that series of Securities.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar federal
or state law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator or similar official under any Bankruptcy Law.
A Default under clause (3) above is not an Event of Default with respect
to a particular series of Securities until the Trustee or the Holders of at
least 50% in principal amount of the then outstanding Securities of that series
notify the Company of the Default and the Company does not cure the Default
within 60 days after receipt of the notice. The notice must specify the Default,
demand that it be remedied and state that the notice is a "Notice of Default."
Such notice shall be given by the Trustee if so requested in writing by the
Holders of 50% of the principal amount of the then outstanding Securities of
that series.
SECTION 6.02 ACCELERATION.
If an Event of Default with respect to Securities of any series (other
than an Event of Default specified in clauses (4) and (5) of Section 6.01)
occurs and is continuing, the Trustee by notice to the Company, or the Holders
of at least 50% in principal amount of the then outstanding Securities of that
series by notice to the Company and the Trustee, may declare the unpaid
principal (or, in the case of Original Issue Discount Securities, such lesser
amount as may be provided for in such Securities) of and any accrued interest on
all the Securities of that series to be due and payable. Upon such declaration,
the principal (or such lesser amount) and interest shall be due and payable
immediately. If an Event of Default specified in clause (4) or (5) of Section
6.01 occurs, all of such amount shall become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder.
The Holders of a majority in principal amount of the then outstanding Securities
of that series by notice to the Trustee may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default with respect to that series have been
cured or waived except nonpayment of principal (or such lesser amount) or
interest that has become due solely because of the acceleration.
SECTION 6.03 OTHER REMEDIES.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may pursue any available remedy to collect the
payment of principal or interest on
18
the Securities of that series or to enforce the performance of any provision of
the Securities of that series or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
SECTION 6.04 WAIVER OF DEFAULTS.
Subject to Section 9.02, the Holders of a majority in principal amount of
the then outstanding Securities of any series, by notice to the Trustee, may
waive an existing or past Default or Event of Default with respect to that
series and its consequences except a Default or Event of Default in the payment
of the principal (including any mandatory sinking fund or like payment) of or
interest on any Security of that series (provided, however, that the Holders of
a majority in principal amount of the outstanding Securities of any series may
rescind an acceleration and its consequences, including any related payment
default that resulted from such acceleration).
SECTION 6.05 CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the then outstanding
Securities of any series may direct the time, method and place of conducting any
proceeding for any remedy with respect to that series available to the Trustee
or exercising any trust or power conferred on it. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture, that
is unduly prejudicial to the rights of another Holder of Securities of that
series, or that may involve the Trustee in personal liability. The Trustee may
take any other action which it deems proper that is not inconsistent with any
such direction.
SECTION 6.06 LIMITATION ON SUITS.
A Holder of Securities of any series may not pursue a remedy with respect
to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default with respect to that series;
(2) the Holders of at least 50% in principal amount of the
then outstanding Securities of that series make a
written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability
or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if
requested, the provision of indemnity; and
19
(5) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Securities of
that series do not give the Trustee a direction
inconsistent with the request.
No Holder of any series of Securities may use this Indenture to prejudice
the rights of another Holder of Securities of that series or to obtain a
preference or priority over another Holder of Securities of that series.
SECTION 6.07 RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security to receive payment of principal of and interest, if any, on
the Security, on or after the respective due dates expressed in the Security, or
to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of the
Holder.
SECTION 6.08 COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(l) or (2) hereof occurs
and is continuing with respect to Securities of any series, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company for the whole amount of principal (or such portion of the principal as
may be specified as due upon acceleration at that time in the terms of that
series of Securities) and interest, if any, remaining unpaid on the Securities
of that series then outstanding, together with (to the extent lawful) interest
on overdue principal and interest, and such further amount as shall be
sufficient to cover the costs and, to the extent lawful, expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel and any other amounts due the Trustee under
Section 7.07 hereof.
SECTION 6.09 TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee and the
Securityholders allowed in any judicial proceedings relative to the Company (or
any other obligor on the Securities), its creditors or its property and shall be
entitled to and empowered to collect and receive any money or other property
payable or deliverable on any such claims and to distribute the same, and any
custodian in any such judicial proceedings is hereby authorized by each Holder
to make such payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agent and counsel, and any other
amounts due the Trustee under Section 7.07 hereof. Nothing contained herein
shall be deemed to authorize the Trustee to authorize or consent to or accept or
adopt on behalf of any Securityholder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding.
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SECTION 6.10 PRIORITIES.
If the Trustee collects any money with respect to Securities of any series
pursuant to this Article, it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under Section
7.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the
costs and expenses of collection;
Second: to Securityholders for amounts due and unpaid on the Securities of such
series for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Securities of such series for principal and interest, respectively; and
Third: to the Company or to such party as a court of competent jurisdiction
shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Securities of any series pursuant to this Section. The Trustee shall
notify the Company in writing reasonably in advance of any such record date and
payment date.
SECTION 6.11 UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defense made by the party
litigant. This Section does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.07 hereof or a suit by Holders of more than 10% in
principal amount of the then outstanding Securities of any series.
ARTICLE 7.
TRUSTEE
SECTION 7.01 DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default known to the
Trustee:
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture or the TIA and the
Trustee need perform only those duties that are specifically
set forth in this Indenture or the TIA and no others, and no
implied covenants or obligations shall be read into this
Indenture against the Trustee; and
21
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However, in
the case of any certificates or opinions which by any
provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall examine the certificates and
opinions 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).
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own
willful misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section;
(ii) the Trustee shall not be liable for any error of judgment made
in good faith by a responsible officer of the Trustee, unless
it is proved that the Trustee was negligent in ascertaining
the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b) and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or incur any liability. The Trustee may refuse
to perform any duty or exercise any right or power unless it
receives security and indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company.
Absent written instruction from the Company, the Trustee shall not
be required to invest any such money. Money held in trust by the
Trustee need not be segregated from other funds except to the extent
required by law.
SECTION 7.02 RIGHTS OF TRUSTEE.
Subject to TIA Section 315(a) through (d):
(a) The Trustee may conclusively rely on any document believed by it to
be genuine and to have been signed or presented by the proper
person. The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of
indebtedness or
22
other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or
matters as it may see fit.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers Certificate or an Opinion of Counsel, or both. The Trustee
shall not be liable for any action it takes or omits to take in good
faith in reliance on such Officers Certificate or Opinion of
Counsel.
(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its
rights or powers under the Indenture, unless the Trustee's conduct
constitutes negligence.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be
sufficient if signed by an officer of the Company.
(f) The Trustee may consult with counsel of its selection and may rely
upon the advice of such counsel or any Opinion of Counsel.
The Trustee shall be deemed to have notice of any Default or Event of
Default only if a Trust Officer of the Trustee has actual knowledge thereof or
receives at the Corporate Trust Office of the Trustee written notice of any
event that is in fact a Default or Event of Default, and such notice references
the Securities generally or the Securities of a particular series, as the case
may be, and this Indenture.
SECTION 7.03 INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Securities and may otherwise deal with the Company or an Affiliate
with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights. However, the Trustee is subject to TIA Sections 310(b)
and 311.
SECTION 7.04 TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or adequacy of this
Indenture or the Securities, it shall not be accountable for the Company's use
of the proceeds from the Securities, and it shall not be responsible for any
statement in the Securities other than its certificate of authentication.
SECTION 7.05 NOTICE OF DEFAULTS.
If a Default or Event of Default with respect to the Securities of any
series occurs and is continuing and if the Trustee is deemed to have notice
thereof, the Trustee shall mail to all Holders of Securities of that series a
notice of the Default or Event of Default within 90 days after it occurs. Except
in the case of a Default or Event of Default in payment on any such
23
Security, the Trustee may withhold the notice if and so long as a committee of
its Trust Officers in good faith determines that withholding the notice is in
the interests of such Securityholders.
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after May 15 in each year, the Trustee with respect to any
series of Securities shall mail to Holders of Securities of that series as
provided in TIA Section 313(c) a brief report dated as of such May 15 that
complies with TIA Section 313(a) (if such report is required by TIA Section
313(a)). The Trustee shall also comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Securityholders shall
be mailed to the Company and filed with the Commission and each stock exchange
on which any of the Securities are listed, as required by TIA Section 313(d).
The Company shall notify the Trustee when the Securities are listed on any stock
exchange, and of any delisting thereof.
SECTION 7.07 COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such compensation
as shall be agreed upon in writing for its services hereunder. The Company shall
reimburse the Trustee upon written request for all reasonable out-of-pocket
expenses incurred by it. Such expenses shall include the reasonable compensation
and out-of-pocket expenses of the Trustee's agents and counsel.
The Company shall indemnify each of the Trustee or any predecessor Trustee
for any loss, liability, damage, claims or expenses, including taxes (other than
taxes based upon, measured by or determined by the income of the Trustee)
incurred by it, without negligence or bad faith on its part, in connection with
the acceptance or administration of this Indenture and its duties hereunder. The
Trustee shall notify the Company promptly of any claim for which it may seek
indemnity. The Company shall defend the claim and the Trustee shall cooperate in
the defense. The Trustee may have separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel. The Company need not pay for any
settlement made without its consent.
To secure the Company's payment obligations in this Section, the Trustee
shall have a lien prior to the Securities on all money or property held or
collected by the Trustee in its capacity as Trustee, except money or property
held in trust to pay principal and interest on particular Securities. Such lien
will survive the satisfaction and discharge of this Indenture.
If the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(4) or (5) hereof occurs, the expenses and the
compensation for the services will be intended to constitute expenses of
administration under any applicable Bankruptcy Law.
This Section 7.07 shall survive the termination of this Indenture.
24
SECTION 7.08 REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee with respect to one or more or all
series of Securities and appointment of a successor Trustee shall become
effective only upon the successor Trustee's acceptance of appointment as
provided in this Section.
The Trustee may resign with respect to one or more or all series of
Securities by so notifying the Company in writing. The Holders of a majority in
principal amount of the then outstanding Securities of any series may remove the
Trustee as to that series by so notifying the Trustee in writing and may appoint
a successor Trustee with the Company's consent. The Company may remove the
Trustee with respect to one or more or all series of Securities if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver or other public officer takes charge of the Trustee or
its property; or
(d) the Trustee becomes incapable of acting.
If, as to any series of Securities, the Trustee resigns or is removed or
if a vacancy exists in the office of Trustee for any reason, the Company shall
promptly appoint a successor Trustee for that series. Within one year after the
successor Trustee with respect to any series takes office, the Holders of a
majority in principal amount of the then outstanding Securities of that series
may appoint a successor Trustee to replace the successor Trustee appointed by
the Company. If a successor Trustee as to a particular series does not take
office within 60 days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Company or the Holders of at least 10% in principal amount
of the then outstanding Securities of that series may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10 hereof with respect to
any series, any Holder of Securities of that series who satisfies the
requirements of TIA Section 310(b) may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee for that series.
A successor Trustee as to any series of Securities shall deliver a written
acceptance of its appointment to the retiring Trustee and to the Company.
Immediately after that, the retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee (subject to the lien
provided for in Section 7.07 hereof), the resignation or removal of the retiring
Trustee shall become effective, and the successor Trustee shall have all the
rights, powers and duties of the Trustee under this Indenture as to that series.
The successor Trustee shall mail a notice of its succession to the Holders of
Securities of that series.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08,
the Company's obligations under Section 7.07 hereof shall continue for the
benefit of the retiring trustee.
In case of the appointment hereunder of a successor Trustee with respect
to the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee
25
with respect to the Securities of one or more series shall execute and deliver
an indenture supplemental hereto wherein each successor Trustee shall accept
such appointment and that (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) shall contain such provisions
as shall be necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary or desirable to provide for
or facilitate the administration of the trusts hereunder by more than one
Trustee; provided, however, that nothing herein or in such supplemental
Indenture shall constitute such Trustee co-trustees of the same trust and that
each such Trustee shall be trustee of a trust hereunder separate and apart from
any trust hereunder administered by any other such Trustee.
Upon the execution and delivery of such supplemental Indenture the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates.
SECTION 7.09 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee as to any series of Securities consolidates, merges or
converts into, or transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation without any further
act shall be the successor Trustee as to that series.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION.
Each series of Securities shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee as to any series
of Securities shall always have a combined capital and surplus of at least
$25,000,000 as set forth in its most recent published annual report of
condition. The Trustee is subject to TIA Section 310(b).
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE 8.
SATISFACTION AND DISCHARGE; DEFEASANCE
SECTION 8.01 SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Order cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided
26
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 Securities theretofore authenticated and delivered (other
than Securities that have been destroyed, lost or stolen and
that have been replaced or paid) have been delivered to the
Trustee for cancellation; or
(ii) all such securities not theretofore delivered to the Trustee
for cancellation
(1) have become due and payable, or
(2) will become due and payable at their stated maturity
within one year, or
(3) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and
at the expense, of the Company, or
(4) are deemed paid and discharged pursuant to Section 8.03,
as applicable;
and the Company, in the case of (1), (2) or (3) above, has deposited
or caused to be deposited with the Trustee as trust funds in trust
an amount sufficient for the purpose of paying and discharging the
entire indebtedness on such Securities not theretofore delivered to
the Trustee for cancellation, for principal and interest to the date
of such deposit (in the case of Securities that have become due and
payable on or prior to the date of such deposit) or to the stated
maturity or redemption date, as the case may be;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; 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 have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 7.07 hereof, and, if
money shall have been deposited with the Trustee pursuant to clause (a) of this
section or if money or obligations shall have been deposited with or received by
the Trustee pursuant to Section 8.03 hereof, the obligations of the Trustee
under Sections 8.02 and 8.05 hereof shall survive.
SECTION 8.02 APPLICATION OF TRUST FUNDS; INDEMNIFICATION.
(a) Subject to the provisions of Section 8.05 hereof, all money
deposited with the Trustee pursuant to Section 8.01 hereof, all
money and U.S. Government Obligations deposited with the Trustee
pursuant to Section 8.03 or 8.04 hereof
27
and all money received by the Trustee in respect of U.S. Government
Obligations deposited with the Trustee pursuant to Section 8.03 or
8.04 hereof, shall be held in trust and applied by it, in accordance
with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may
determine, to the persons entitled thereto, of the principal and
interest for whose payment such money has been deposited with or
received by the Trustee or to make mandatory sinking fund payments
or analogous payments as contemplated by Sections 8.03 and 8.04
hereof.
(b) The Company shall pay and shall indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against U.S.
Government Obligations deposited pursuant to Sections 8.03 or 8.04
hereof or the interest 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 Company Request any U.S. Government Obligations or money held
by it as provided in Sections 8.03 or 8.04 hereof that, 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 8.03 LEGAL DEFEASANCE OF SECURITIES OF ANY SERIES.
Unless this Section 8.03 is otherwise specified to be inapplicable to
Securities of any series, the Company shall be deemed to have paid and
discharged the entire indebtedness on all the outstanding Securities of any such
series on the 91st day after the date of the deposit referred to in subparagraph
(d) hereof, and the provisions of this Indenture, as it relates to such
outstanding Securities of such series, shall no longer be in effect (and the
Trustee, at the expense of the Company, shall, upon Company Request, execute
proper instruments acknowledging the same), except as to:
(a) the rights of Holders of the Securities of such series to receive,
from the trust funds described in subparagraph (d) hereof, (i)
payment of each installment of principal of or interest on the
outstanding Securities of such series on the stated maturity of such
principal of or interest and (ii) the benefit of any mandatory
sinking fund payments applicable to the Securities of such series on
the day on which such payments are due and payable in accordance
with the terms of this Indenture and the Securities of such series;
(b) the Company's obligations with respect to such Securities of such
series under Sections 2.03, 2.06 and 2.07 hereof; and
28
(c) the rights, powers, trust and immunities of the Trustee hereunder
and the duties of the Trustee under Section 8.02 hereof and the duty
of the Trustee to authenticate Securities of such series issued on
registration of transfer of exchange;
provided that, the following conditions shall have been satisfied:
(d) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds, for the purpose of
making the following payments, specifically pledged as security for
and dedicated solely to the benefit of the Holders of such
Securities, 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 (and without
reinvestment and assuming no tax liability will be imposed on such
Trustee), 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 and discharge each installment of principal
(including mandatory sinking fund or analogous payments) of and
interest, if any, on all the Securities of such series on the dates
such installments of interest or principal are due;
(e) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other material
agreement or instrument to which the Company is a party or by which
it is bound;
(f) no Default or Event of Default with respect to the Securities of
such series shall have occurred and be continuing on the date of
such deposit or during the period ending on the 91st day after such
date;
(g) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that (i) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling,
or (ii) 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, the Holders of the Securities 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 on the same amount and in
the same manner and at the same times as would have been the case if
such deposit, defeasance and discharge had not occurred;
(h) 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 Securities 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;
(i) such deposit shall not result in the trust arising from such deposit
constituting an investment company (as defined in the Investment
Company Act of 1940, as
29
amended), or such trust shall be qualified under such Act or exempt
from regulation thereunder; and
(j) the Company shall have delivered to the Trustee an Officers
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the defeasance
contemplated by this Section have been complied with.
SECTION 8.04 COVENANT DEFEASANCE.
Unless this Section 8.04 is otherwise inapplicable to Securities of any
series, on and after the 91st 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 Sections 4.02, 4.03 and 5.01 hereof as well as any
additional covenants contained in a supplemental indenture hereto for a
particular series of Securities or a Board Resolution or an Officers Certificate
delivered pursuant to Section 2.01 hereof (and the failure to comply with any
such provisions shall not constitute a Default or Event of Default under Section
6.01 hereof) and the occurrence of any event described in clause (5) of Section
6.01 hereof shall not constitute a Default or Event of Default hereunder, with
respect to the Securities of such series, provided that the following conditions
shall have been satisfied:
(a) With reference to this Section 8.04, the Company has deposited or
caused to be irrevocably deposited (except as provided in Section
8.03 hereof) with the Trustee as trust funds, specifically pledged
as security for, and dedicated solely to, the benefit of the Holders
of such Securities, 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 (and
without reinvestment and assuming no tax liability will be imposed
on such Trustee), not later than one day before the due date of any
payment of money, an amount in cash sufficient, in the opinion of a
nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered
to the Trustee, to pay principal and interest, if any, on and any
mandatory sinking fund in respect of the Securities of such series
on the dates such installments of interest or principal are due;
(b) Such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other material
agreement or instrument to which the Company is a party or by which
it is bound;
(c) No Default or Event of Default with respect to the Securities of
such series shall have occurred and be continuing on the date of
such deposit or during the period ending on the 91st day after such
date;
(d) The Company shall have delivered to the Trustee an Opinion of
Counsel confirming that Holders of the Securities 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 on the same amounts, in the
30
same manner and at the same times as would have been the case if
such deposit and defeasance had not occurred;
(e) 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 Securities 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; and
(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 have been complied with.
SECTION 8.05 REPAYMENT TO COMPANY.
The Trustee and the Paying Agent shall pay to the Company upon the
Company's request any money held by them for the payment of principal or
interest that remains unclaimed for two years after the date upon which such
payment shall have become due. After payment to the Company, Securityholders
entitled to the money must look to the Company for payment as general creditors
unless an applicable abandoned property law designates another Person.
ARTICLE 9.
SUPPLEMENTS, AMENDMENTS AND WAIVERS
SECTION 9.01 WITHOUT CONSENT OF HOLDERS.
The Company and the Trustee as to any series of Securities may supplement
or amend this Indenture or the Securities without notice to or the consent of
any Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article 5;
(3) to comply with any requirements of the Commission in
connection with the qualification of this Indenture
under the TIA;
(4) to provide for uncertificated Securities in addition to
or in place of certificated Securities;
(5) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of
Securities, provided, however, that any such addition,
change or elimination (A) shall neither (i) apply to any
Security of any series created prior to the execution of
such supplemental indenture and entitled to the benefit
of such provision nor (ii) modify the rights of the
Holder of any such Security with respect to such
provision or (B) shall become effective only when there
is no outstanding Security of any
31
series created prior to the execution of such
supplemental indenture and entitled to the benefit of
such provision;
(6) to make any change that does not adversely affect in any
material respect the interests of the Securityholders of
any series; or
(7) to establish additional series of Securities as
permitted by Section 2.01 hereof.
SECTION 9.02 WITH CONSENT OF HOLDERS.
Subject to Section 6.07, the Company and the Trustee as to any series of
Securities may amend this Indenture or the Securities of that series with the
written consent of the Holders of a majority in principal amount of the then
outstanding Securities of each series affected by the amendment, with each such
series voting as a separate class. The Holders of a majority in principal amount
of the then outstanding Securities of any series may also waive compliance in a
particular instance by the Company with any provision of this Indenture with
respect to that series or the Securities of that series; provided, however, that
without the consent of each Securityholder affected, an amendment or waiver may
not:
(1) reduce the percentage of the principal amount of
Securities whose Holders must consent to an amendment or
waiver;
(2) reduce the amount of, or postpone the date fixed for,
the payment of any sinking fund or analogous provision;
(3) reduce the rate of, or change the time for payment of
interest on, any Security;
(4) reduce the principal of or change the fixed maturity of
any Security or waive a redemption payment or alter the
redemption provisions with respect thereto;
(5) make any Security payable in money other than that
stated in the Security (including defaulted interest);
(6) reduce the principal amount of original Issue Discount
Securities payable upon acceleration of the maturity
thereof;
(7) make any change in Section 6.04, 6.07 or 9.02 (this
sentence); or
(8) waive a default in the payment of the principal of, or
interest on, any Security, except to the extent
otherwise provided for in Section 6.02 hereof.
An amendment or waiver under this Section that waives, changes or
eliminates any covenant or other provision of this Indenture that has expressly
been included solely for the benefit of one or more particular series of
Securities, or that modifies the rights of the Holders of
32
Securities of such series with respect to such covenant or other provision,
shall be deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment or waiver, but
it shall be sufficient if such consent approves the substance thereof.
The Company shall mail supplemental indentures to Holders upon request.
Any failure of the Company to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such supplemental
indenture or waiver.
SECTION 9.03 REVOCATION AND EFFECT OF CONSENTS.
Until an amendment or waiver becomes effective, a consent to it by a
Holder of a Security is a continuing consent by the Holder and every subsequent
Holder of the Security or portion of the Security that evidences the same debt
as the consenting Holder's Security, even if notation of the consent is not made
on any Security; provided, however, that unless a record date shall have been
established pursuant to Section 2.12(a) hereof, any such Holder or subsequent
Holder may revoke the consent as to his or her Security or portion of a Security
if the Trustee receives the notice of revocation before the date on which the
amendment or waiver becomes effective. An amendment or waiver shall become
effective on receipt by the Trustee of consents from the Holders of the
requisite percentage of principal amount of the outstanding Securities of any
series, and thereafter shall bind every Holder of Securities of that series.
SECTION 9.04 NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment or waiver changes the terms of a Security: (a) the Trustee
may require the Holder of the Security to deliver it to the Trustee, the Trustee
may, at the written direction of the Company and at the Company's expense, place
an appropriate notation on the Security about the changed terms and return it to
the Holder and the Trustee may place an appropriate notation on any Security
thereafter authenticated; or (b) if the Company or the Trustee so determines,
the Company in exchange for the Security shall issue and the Trustee shall
authenticate a new Security that reflects the changed terms.
SECTION 9.05 TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall receive an Opinion of Counsel stating that the execution
of any amendment or waiver proposed pursuant to this Article is authorized or
permitted by this Indenture. Subject to the preceding sentence, the Trustee
shall sign such amendment or waiver if the same does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. The Trustee may, but
shall not be obligated to, execute any such amendment, supplement or waiver that
affects the Trustee's own rights, duties, liabilities or immunities under this
Indenture or otherwise.
33
ARTICLE 10.
MISCELLANEOUS
SECTION 10.01 NOTICES.
Any notice or communication is duly given if in writing and delivered in
person or sent by first-class mail (registered or certified, return receipt
requested), telecopier or overnight air courier guaranteeing next-day delivery,
addressed as follows:
If to the Company:
Golden Star Resources Ltd.
00000 X. Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx, 00000
Attention: Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Trustee:
_______________________________
_______________________________
_______________________________
_______________________________
Attention: ____________________
Telephone: ____________________
Facsimile: ____________________
The Company or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; five business days after being deposited in the mail, postage
prepaid, if mailed; when receipt acknowledged, if telecopied; and the next
business day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next-day delivery.
Any notice or communication to a Securityholder shall be mailed by
first-class mail to his address shown on the register kept by the Registrar.
Failure to mail a notice or communication to a Securityholder or any defect in
it shall not affect its sufficiency with respect to other Securityholders. If
the Company mails a notice or communication to Securityholders, it shall mail a
copy to the Trustee at the same time.
34
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives it.
SECTION 10.02 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Holders may communicate pursuant to TIA Section 312(b) with other Holders
with respect to their rights under this Indenture or the Securities. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
SECTION 10.03 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers Certificate stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
SECTION 10.04 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than the certificate provided for
in Section 4.03 hereof) shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
(3) a statement that, in the opinion of such Person, he or
she has made such examination or investigation as is
necessary to enable him or her to express an informed
opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied
with; provided, however, that with respect to matters of
fact an Opinion of Counsel may rely on an Officers
Certificate or certificates of public officials.
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SECTION 10.05 RULES BY TRUSTEE AND AGENTS.
The Trustee as to Securities of any series may make reasonable rules for
action by or at a meeting of Holders of Securities of that series. The Registrar
and any Paying Agent or Authenticating Agent may make reasonable rules and set
reasonable requirements for their functions.
SECTION 10.06 LEGAL HOLIDAYS.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in _______________, are not required to be open. If a payment date
is a Legal Holiday at a place of payment, payment may be made at that place on
the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period.
SECTION 10.07 NO RECOURSE AGAINST OTHERS.
A past, present or future director, officer, employee, stockholder or
incorporator, as such, of the Company or any successor corporation shall not
have any liability for any obligations of the Company under any series of
Securities or the Indenture or for any claim based on, in respect of, or by
reason of such obligations or their creation. Each Securityholder by accepting a
Security waives and releases all such liability. The waiver and release are part
of the consideration of issuance of the Securities.
SECTION 10.08 COUNTERPARTS.
This Indenture may be executed by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
SECTION 10.09 GOVERNING LAW.
The laws of the State of _________ shall govern this Indenture and the
Securities, without regard to the conflict of laws provisions thereof.
SECTION 10.10 SEVERABILITY.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 10.11 EFFECT OF HEADINGS, TABLE OF CONTENTS, ETC.
The Article and Section headings herein and the table of contents are for
convenience only and shall not affect the construction hereof.
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SECTION 10.12 SUCCESSORS AND ASSIGNS.
All covenants and agreements of the Company in this Indenture and the
securities shall bind its successors and assigns. All agreements of the Trustee
in this Indenture shall bind its successor.
SECTION 10.13 NO INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or any Subsidiary. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
[signature page follows]
37
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first above written.
GOLDEN STAR RESOURCES LTD.
By:__________________________________
Name:_____________________________
Title:____________________________
_____________________________________
as Trustee
By:__________________________________
Name:_____________________________
Title:____________________________
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