Exhibit 4.1
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CONSOL ENERGY INC.
Issuer
THE GUARANTORS LISTED ON
SCHEDULE I HERETO
AND
THE BANK OF NOVA SCOTIA TRUST
COMPANY OF NEW YORK
Trustee
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INDENTURE
Dated as of March 7, 2002
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CROSS-REFERENCE TABLE /(1)/
Section of Trust Indenture Act of 1939, as Amended Indenture
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310(a)..........................................................7.10
310(b)..........................................................7.09; 7.11
310(c)..........................................................Inapplicable
311(a)..........................................................7.14
311(b)..........................................................7.14
311(c)..........................................................Inapplicable
312(a)..........................................................5.02(a)
312(b)..........................................................5.02(c)
312(c)..........................................................5.02(c)
313(a)..........................................................5.04(a)
313(b)..........................................................5.04(b)
313(c)..........................................................5.04(a); 5.04(b)
313(d)..........................................................5.04(c)
314(a)..........................................................5.03
314(b)..........................................................Inapplicable
314(c)..........................................................14.07
314(d)..........................................................Inapplicable
314(e)..........................................................14.07
314(f)..........................................................Inapplicable
315(a)..........................................................7.01(a); 7.03
315(b)..........................................................7.02
315(c)..........................................................7.01
315(d)..........................................................7.01(b)
315(e)..........................................................6.07; 7.07
316(a)..........................................................6.06 8.04
316(b)..........................................................6.04
316(c)..........................................................8.01
317(a)..........................................................6.02
317(b)..........................................................4.03
318(a)..........................................................14.09
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/(1)/This Cross-Reference Table does not constitute part of the Indenture and
shall not have any bearing on the interpretation of any of its terms or
provisions.
TABLE OF CONTENTS /(2)/
ARTICLE I DEFINITIONS...........................................................................1
Section 1.01 Definitions of Terms............................................................1
ARTICLE II ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION aND EXCHANGE OF SECURITIES.....8
Section 2.01 Designation and Terms of Securities.............................................8
Section 2.02 Form of Securities and Trustee's Certificate...................................10
Section 2.03 Denominations: Provisions for Payment..........................................10
Section 2.04 Execution and Authentication...................................................12
Section 2.05 Registration of Transfer and Exchange..........................................13
Section 2.06 Temporary Securities...........................................................14
Section 2.07 Mutilated, Destroyed, Lost or Stolen Securities................................14
Section 2.08 Cancellation...................................................................15
Section 2.09 Benefits of Indenture..........................................................15
Section 2.10 Authenticating Agent...........................................................15
Section 2.11 Global Securities..............................................................16
ARTICLE III REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS............................17
Section 3.01 Redemption.....................................................................17
Section 3.02 Notice of Redemption...........................................................18
Section 3.03 Payment Upon Redemption........................................................19
Section 3.04 Sinking Fund...................................................................19
Section 3.05 Satisfaction of Sinking Fund Payments With Securities..........................20
Section 3.06 Redemption of Securities for Sinking Fund......................................20
ARTICLE IV COVENANTS........................................................................20
Section 4.01 Payment of Principal, Premium and Interest.....................................20
Section 4.02 Maintenance of Office or Agency................................................21
Section 4.03 Paying Agents..................................................................21
Section 4.04 Appointment to Fill Vacancy in Office of Trustee...............................22
Section 4.05 Limitations On Liens...........................................................22
Section 4.06 Limitations On Sale and Lease-back Transactions................................24
Section 4.07 Subsidiary Guarantees..........................................................25
ARTICLE V SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE.................25
Section 5.01 Company to Furnish Trustee Names and Addresses of Securityholders..............25
Section 5.02 Preservation of Information; Communications With Securityholders...............26
Section 5.03 Reports by the Company.........................................................26
Section 5.04 Reports by the Trustee.........................................................27
Section 5.05 No Accountability by Reason of Disclosure......................................27
ARTICLE VI REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT..................27
Section 6.01 Events of Default..............................................................27
Section 6.02 Collection of Indebtedness and Suits for Enforcement by Trustee................30
Section 6.03 Application of Moneys Collected................................................31
Section 6.04 Limitation On Suits............................................................32
Section 6.05 Rights and Remedies Cumulative; Delay or Omission Not Waiver...................33
Section 6.06 Control by Securityholders.....................................................33
Section 6.07 Undertaking to Pay Costs.......................................................34
ARTICLE VII CONCERNING THE TRUSTEE..........................................................34
Section 7.01 Certain Duties and Responsibilities of Trustee.................................34
Section 7.02 Notice of Defaults.............................................................36
Section 7.03 Certain Rights of Trustee......................................................36
Section 7.04 Trustee Not Responsible for Recitals or Issuance or Securities.................37
Section 7.05 May Hold Securities............................................................37
Section 7.06 Moneys Held in Trust...........................................................37
Section 7.07 Compensation and Reimbursement.................................................38
Section 7.08 Reliance On Officers' Certificate..............................................38
Section 7.09 Disqualification; Conflicting Interests........................................39
Section 7.10 Corporate Trustee Required; Eligibility........................................39
Section 7.11 Resignation and Removal; Appointment of Successor..............................39
Section 7.12 Acceptance of Appointment by Successor.........................................40
Section 7.13 Merger, Conversion, Consolidation or Succession to Business....................42
Section 7.14 Preferential Collection of Claims Against the Company..........................42
ARTICLE VIII CONCERNING THE SECURITYHOLDERS.................................................42
Section 8.01 Evidence of Action by Securityholders..........................................42
Section 8.02 Proof of Execution by Securityholders..........................................43
Section 8.03 Who May be Deemed Owners.......................................................43
Section 8.04 Certain Securities Owned by Company Disregarded................................44
Section 8.05 Actions Binding On Future Securityholders......................................44
ARTICLE IX SUPPLEMENTAL INDENTURES..........................................................45
Section 9.01 Supplemental Indentures Without the Consent of Securityholders.................45
Section 9.02 Supplemental Indentures With Consent of Securityholders........................46
Section 9.03 Effect of Supplemental Indentures..............................................47
Section 9.04 Securities Affected by Supplemental Indentures.................................47
Section 9.05 Execution of Supplemental Indentures...........................................48
ARTICLE X SUCCESSOR ENTITY..................................................................48
Section 10.01 Company May Consolidate, Etc..................................................48
Section 10.02 Successor Entity Substituted..................................................49
Section 10.03 Securing of Assets Upon Consolidation, Etc....................................49
Section 10.04 Evidence of Consolidation, Etc. to Trustee....................................50
ARTICLE XI SUBSIDIARY GUARANTEES............................................................50
Section 11.01 Guarantee.....................................................................50
Section 11.02 Limitation On Guarantor Subsidiary Liability..................................51
Section 11.03 Delivery of Subsidiary Guarantee..............................................51
Section 11.04 Guarantor Subsidiaries May Consolidate, Etc., On Certain Terms................52
Section 11.05 Releases of Subsidiary Guarantee..............................................52
ARTICLE XII SATISFACTION AND DISCHARGE; DEFEASANCE.............................................53
Section 12.01 Satisfaction and Discharge....................................................53
Section 12.02 Defeasance....................................................................54
Section 12.03 Deposited Moneys to be Held in Trust..........................................56
Section 12.04 Payment of Moneys Held by Paying Agents.......................................56
Section 12.05 Repayment to Company..........................................................56
Section 12.06 Reinstatement.................................................................56
Section 12.07 Other Coin or Currency Units..................................................57
ARTICLE XIII IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS................57
ii
Section 13.01 No Recourse...................................................................57
ARTICLE XIV MISCELLANEOUS PROVISIONS........................................................58
Section 14.01 Effect On Successors and Assigns..............................................58
Section 14.02 Actions by Successor..........................................................58
Section 14.03 Surrender of Company Powers...................................................58
Section 14.04 Notices.......................................................................58
Section 14.05 Governing Law.................................................................59
Section 14.06 Treatment of Securities as Debt...............................................59
Section 14.07 Compliance Certificates and Opinions..........................................59
Section 14.08 Payments On Business Days.....................................................60
Section 14.09 Conflict With Trust Indenture Act.............................................60
Section 14.10 Effects of Headings and Table of Contents.....................................60
Section 14.11 Counterparts..................................................................61
Section 14.12 Separability..................................................................61
Section 14.13 Assignment....................................................................61
SCHEDULE I......................................................................................1
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GUARANTORS......................................................................................1
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/(2)/This Table of Contents does not constitute part of the Indenture and shall
not have any bearing on the interpretation of any of its terms or
provisions.
iii
INDENTURE, dated as of March 7, 2002, between CONSOL Energy Inc., a
Delaware corporation (the "Company"), the Guarantor Subsidiaries listed on
Schedule I hereto and The Bank of Nova Scotia Trust Company of New York, as
trustee (the "Trustee"):
WHEREAS, for its lawful corporate purposes, the Company has duly authorized
the execution and delivery of this Indenture to provide for the issuance of
unsecured debt securities (hereinafter referred to as the "Securities"), in an
unlimited aggregate principal amount to be issued from time to time in one or
more series as in this Indenture provided, as registered Securities without
coupons, to be authenticated by the certificate of the Trustee;
WHEREAS, to provide the terms and conditions upon which the Securities are
to be authenticated, issued and delivered, the Company has duly authorized the
execution of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises and the purchase of the
Securities by the holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the holders of Securities or of
series thereof.
ARTICLE I
DEFINITIONS
Section 1.01 Definitions of Terms.
The terms defined in this Section (except as in this Indenture otherwise
expressly provided or unless the context otherwise requires) for all purposes of
this Indenture and of any indenture supplemental hereto shall have the
respective meanings specified in this Section and shall include the plural as
well as the singular. All other terms used in this Indenture that are defined in
the Trust Indenture Act of 1939, as amended, or that are by reference in said
Trust Indenture Act defined in the Securities Act of 1933, as amended (except as
herein otherwise expressly provided or unless the context otherwise requires),
shall have the meanings assigned to such terms in said Trust Indenture Act and
in said Securities Act as in force at the date of the execution of this
instrument.
"Attributable Debt" has the meaning set forth in Section 4.06(c).
"Authenticating Agent" means an authenticating agent with respect to all or
any of the series of Securities appointed with respect to all or any series of
the Securities by the Trustee pursuant to Section 2.10.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar federal or state
law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company or any
committee of such Board duly authorized to act generally or in a particular
respect for the Company hereunder.
"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 and to be in full force and effect on the date of such
certification.
"Business Day" means, with respect to any series of Securities, any day
other than a Saturday, Sunday or other day on which Federal or State banking
institutions in the Borough of Manhattan, The City of New York, are authorized
or obligated by law, executive order or regulation to close.
"Commission" means the Securities and Exchange Commission, or any successor
agency or commission.
"Company" means CONSOL Energy Inc., a corporation duly organized and
existing under the laws of the State of Delaware, and shall also include its
successors and assigns permitted under the provisions of Article X.
"Consolidated Net Tangible Assets" as used herein means, as of any
particular time, the total of all the assets appearing on the most recent
consolidated balance sheet of the Company and the Subsidiaries (other than those
principally engaged in leasing or financing activities) as of the end of the
last fiscal quarter for which financial information is available (less
applicable reserves and other properly deductible items) after deducting from
such amount: (a) all current liabilities, including current maturities of
long-term debt and current maturities of obligations under capital leases (other
than liabilities of Subsidiaries principally engaged in leasing or financing
activities that are not guaranteed by the Company or any of its other
Subsidiaries), and (b) the total of the net book values of all assets of the
Company and its Subsidiaries (other than those principally engaged in leasing or
financing activities) properly classified as intangible assets under U.S.
generally accepted accounting principles (including goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like
intangible assets).
"Corporate Trust Office" means the office of the Trustee at which, at any
particular time, its corporate trust business shall be principally administered,
which office at the date hereof is located at Xxx Xxxxxxx Xxxxx, 00xx Xxxxx, Xxx
Xxxx, XX 00000.
"Covenant Defeasance" has the meaning given in Section 12.02.
"Custodian" means any receiver, trustee, assignee, liquidator or similar
official under any Bankruptcy Law.
"Debt" has the meaning set forth in Section 4.05(a).
2
"Default" means any event, act or condition that with notice or lapse of
time, or both, would constitute an Event of Default.
"Defaulted Interest" has the meaning given in Section 2.03.
"Depositary" means, with respect to Securities of any series, for which the
Company shall determine that such Securities will be issued as a Global
Security, The Depository Trust Company, New York, New York, another clearing
agency, or any successor registered as a clearing agency under the Exchange Act,
or other applicable statute or regulation, which, in each case, shall be
designated by the Company pursuant to either Section 2.01 or 2.11.
"Event of Default" means, with respect to Securities of a particular series
any event specified in Section 6.01, continued for the period of time, if any,
therein designated.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any successor statute or statutes thereto.
"Global Security" means, with respect to any series of Securities, a
Security executed by the Company and delivered by the Trustee to the Depositary
or pursuant to the Depositary's instruction, all in accordance with this
Indenture, which shall be registered in the name of the Depositary or its
nominee.
"Governmental Obligations" 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, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any such Governmental
Obligation or a specific payment of principal of or interest on any such
Governmental Obligation held by such custodian for the account of the holder of
such depositary receipt; provided, however, that (except as required by law)
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such custodian is not authorized to make any deduction from the amount payable
to the holder of such depositary receipt from any amount received by the
custodian in respect of the Governmental Obligation or the specific payment of
principal of or interest on the Governmental Obligation evidenced by such
depositary receipt.
"Guarantee" means, in respect of any Indebtedness, any obligation,
contingent or otherwise, of any Person directly or indirectly guaranteeing such
Indebtedness.
"Guarantor Subsidiary" means any domestic Subsidiary of the Company that
incurs or Guarantees any Indebtedness.
3
"herein", "hereof" and "hereunder", and other words of similar import,
refer to this Indenture as a whole and not to any particular Article, Section or
other subdivision.
"Indebtedness" means, with respect to any Person on any date of
determination, without duplication, (i) the principal of and premium (if any) in
respect of indebtedness of such Person for borrowed money and (ii) the principal
of and premium (if any) in respect of obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments; provided, however, that
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Indebtedness shall not include any indebtedness of a Subsidiary to the Company
or another Subsidiary.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into in accordance with the terms hereof, including, for all
purposes of this instrument and any such supplemental indenture, the provisions
of the Trust Indenture Act that are deemed to be a part of and govern this
instrument and any such supplemental indenture, respectively. The term
"Indenture" shall also include the terms of particular series of Securities
established as contemplated by Section 2.01.
"Interest Payment Date", when used with respect to any installment of
interest on a Security of a particular series, means the date specified in such
Security or in a Board Resolution or in an indenture supplemental hereto with
respect to such series as the fixed date on which an installment of interest
with respect to Securities of that series is due and payable.
"Legal Defeasance" has the meaning given in Section 12.02.
"Lien" has the meaning set forth in Section 4.05(a).
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Debt.
"Officers' Certificate" means a certificate signed by the President or a
Vice President and by the Treasurer or an Assistant Treasurer or the Controller
or an Assistant Controller or the Secretary or an Assistant Secretary of the
Company that is delivered to the Trustee in accordance with the terms hereof.
Each such certificate shall include the statements provided for in Section
14.07, if and to the extent required by the provisions thereof.
"Opinion of Counsel" means an opinion in writing of legal counsel, who may
be an employee of or counsel for the Company that is delivered to the Trustee in
accordance with the terms hereof. Each such opinion shall include the statements
provided for in Section 14.07, if and to the extent required by the provisions
thereof.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Section 6.01.
4
"Outstanding", when used with reference to Securities of any series, means,
subject to the provisions of Section 8.04, as of any particular time, all
Securities of that series theretofore authenticated and delivered by the Trustee
under this Indenture, except (a) Securities theretofore canceled by the Trustee
or any paying agent, or delivered to the Trustee or any paying agent for
cancellation, (b) Securities or portions thereof for the payment or redemption
of which moneys or Governmental Obligations in the necessary amount shall have
been deposited in trust with the Trustee or with any paying agent (other than
the Company) or shall have been set aside and segregated in trust by the Company
(if the Company shall act as its own paying agent) for the holders of such
Securities; provided, however, that if such Securities or portions of such
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Securities are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as set forth in Article III or provision
satisfactory to the Trustee shall have been made for giving such notice, and (c)
Securities in lieu of or in substitution for which other Securities shall have
been authenticated and delivered pursuant to the terms of Section 2.07;
provided, however, that in determining whether the holders of the requisite
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principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be the amount of
the principal thereof which would be due and payable as of such date upon
acceleration of the maturity thereof to such date pursuant to Section 6.01.
"Person" means any individual, corporation, limited liability company,
partnership, joint-venture, joint-stock company, unincorporated organization or
government or any agency or political subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 2.07 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
"Principal Property" means the land, improvements, buildings and fixtures
(including any leasehold interest thereof) constituting the principal corporate
office, any mine, preparation plant, transportation facilities, manufacturing
plant or any manufacturing or research or engineering facility (whether owned at
or acquired after the date of this Indenture) that is owned or leased by the
Company or a Restricted Subsidiary, that is located within the continental
United States, the gross book value of which (without deduction of any
depreciation reserves) on the date as of which the determination is made exceeds
1% of Consolidated Net Tangible Assets unless the Company's Board of Directors
has determined in good faith that such property is not material to the operation
of the business conducted by the Company and its Subsidiaries taken as a whole.
"Redemption Date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
5
"Responsible Officer" when used with respect to the Trustee means any
officer assigned to administer corporate trust matters or to whom any corporate
trust matter is referred because of his or her knowledge of and familiarity with
the particular subject.
"Restricted Subsidiary" means any Subsidiary (a) substantially all of whose
property is located within the United States, (b) (i) which owns a Principal
Property or (ii) in which the investment by the Company and its Subsidiaries
exceeds 1.0% of the aggregate amount of assets included on a consolidated
balance sheet of the Company and its Subsidiaries as of the end of the last
fiscal quarter for which financial information is available; provided, however,
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the term "Restricted Subsidiary" shall not include any Subsidiary that is
principally engaged in leasing or financing activities.
"Sale and Lease-Back Transaction has the meaning set forth in Section
4.06(b).
"Securities" means the debt Securities authenticated and delivered under
this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Securityholder", "Holder," "holder of Securities", "registered holder", or
other similar term, means the Person or Persons in whose name or names a
particular Security shall be registered on the books of the Company kept for
that purpose in accordance with the terms of this Indenture.
"Security Register" has the meaning given in Section 2.05(b).
"Security Registrar" has the meaning given in Section 2.05(b).
"Subsidiary" means (i) any corporation at least a majority of whose
outstanding Voting Stock shall at the time be owned, directly or indirectly, by
the Company or by one or more of its Subsidiaries or by the Company and one or
more of its Subsidiaries, (ii) any general partnership, limited liability
company, joint venture or similar entity, at least a majority of whose
outstanding partnership or similar interests shall at the time be owned by the
Company, or by one or more of its Subsidiaries, or the Company and one or more
of its Subsidiaries, and (iii) any limited partnership of which the Company or
any Subsidiary is a general partner.
"Subsidiary Guarantee" means a Guarantee by a Guarantor Subsidiary of the
Company's Obligations under this Indenture and under any Securities of any
Series pursuant to Section 11.01 hereof or pursuant to a supplemental indenture
hereto providing for a Guarantee on the same terms set forth in Section 11.01.
"Trustee" means The Bank of Nova Scotia Trust Company of New York, and,
subject to the provisions of Article VII, shall also include its successors and
assigns, and, if at any time there is more than one Person acting in such
capacity hereunder, "Trustee" shall mean each such Person. The term "Trustee" as
used with respect to a particular series of the Securities shall mean the
trustee with respect to that series.
6
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended,
subject to the provisions of Sections 9.01, 9.02, and 10.01, as in effect at the
date of execution of this instrument.
"Voting Stock", as applied to stock of any Person, means shares, interests,
participations or other equivalents in the equity interest (however designated)
in such Person having ordinary voting power for the election of a majority of
the directors (or the equivalent) of such Person, other than shares, interests,
participations or other equivalents having such power only by reason of the
occurrence of a contingency.
7
ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE
OF SECURITIES
Section 2.01 Designation and Terms of Securities.
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 up to the aggregate principal amount of Securities of that series
from time to time authorized by or pursuant to a Board Resolution or pursuant to
one or more indentures supplemental hereto. Prior to the initial issuance of
Securities of any series, there shall be established in or pursuant to a Board
Resolution, and set forth in an Officers' Certificate, or established in one or
more indentures supplemental hereto:
(1) the title of the Security of the series (which shall distinguish the
Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
that 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 that series);
(3) the date or dates on which the principal of the Securities of the
series is payable and the place(s) of payment;
(4) the rate or rates at which the Securities of the series shall bear
interest or the manner of calculation of such rate or rates, if any;
(5) the date or dates from which such interest shall accrue, the Interest
Payment Dates on which such interest will be payable or the manner of
determination of such Interest Payment Dates, the place(s) of payment,
and the record date or other method for the determination of holders
to whom interest is payable on any such Interest Payment Dates;
(6) the right, if any, to extend the interest payment periods and the
duration of such extension;
(7) the period or periods within which, the price or prices at which and
the terms and conditions upon which, Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions (including payments
8
made in cash in satisfaction of future sinking fund obligations) or at
the option of a holder thereof and the period or periods within which,
the price or prices at which, and the terms and conditions upon which,
Securities of the series shall be redeemed or purchased, in whole or
in part, pursuant to such obligation;
(9) the form of the Securities of the series including the form of the
Trustee's certificate of authentication for such series;
(10) if other than denominations of one thousand U.S. dollars ($1,000) or
any integral multiple thereof, the denominations in which the
Securities of the series shall be issuable;
(11) any and all other terms with respect to such series (which terms shall
not be inconsistent with the terms of this Indenture, as amended by
any supplemental indenture) including any terms which may be required
by or advisable under laws or regulations or advisable in connection
with the marketing of Securities of that series;
(12) whether the Securities are issuable as a Global Security and, in such
case, the identity of the Depositary for such series;
(13) whether the Securities will be convertible into shares of common stock
or other securities of the Company and, if so, the terms and
conditions upon which such Securities will be so convertible,
including the conversion price and the conversion period;
(14) 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 6.01;
(15) any additional or different Events of Default or restrictive covenants
provided for with respect to the Securities of the series;
(16) any provisions granting special rights to holders when a specified
event occurs;
(17) if applicable, that the Securities of the series, in whole or in
specified part, shall be defeasible pursuant to Section 12.02 and, if
other than by a Board Resolution, the manner in which any election by
the Company to defease such Securities shall be evidenced; and
(18) if other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of or
any premium or interest on any Securities of the series shall be
payable and the manner of determining the equivalent thereof in the
currency of the United States of America for any purpose, including
for purposes of the definition of "Outstanding" in Section 1.01.
9
All Securities of any one series shall be substantially identical except as to
denomination and except as may otherwise be provided prior to any issuance
thereof in or pursuant to any such Board Resolution or in any indentures
supplemental hereto. If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series. Securities of any
particular series may be issued at various times, with different dates on which
the principal or any installment of principal is payable, with different rates
of interest, if any, or different methods by which rates of interest may be
determined, with different dates on which such interest may be payable and with
different redemption dates. Notwithstanding Section 2.01(2) and unless otherwise
expressly provided with respect to a series of Securities, the aggregate
principal amount of a series of Securities may be increased and additional
Securities of such series may be issued up to the maximum aggregate principal
amount authorized with respect to such series as increased.
Section 2.02 Form of Securities and Trustee's Certificate.
The Securities of any series and the Trustee's certificate of
authentication to be borne by such Securities shall be substantially of the
tenor and purport as set forth in one or more indentures supplemental hereto or
as provided in a Board Resolution and as set forth in an Officers' Certificate.
The Securities may have such letters, numbers or other marks of identification
or designation and such legends or endorsements printed, lithographed or
engraved thereon as the Company may deem appropriate and as are not inconsistent
with the provisions of this Indenture, or as may be required to comply with any
law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which Securities of that series may be
listed, or to conform to usage.
Section 2.03 Denominations: Provisions for Payment.
(a) The Securities shall be issuable as registered Securities and in the
denominations of one thousand U.S. dollars ($1,000) or any integral multiple
thereof, subject to Section 2.01(10). The Securities of a particular series
shall bear interest payable on the dates and at the rates specified or provided
for with respect to that series. Except as contemplated by Section 2.01(18), the
principal of and the interest on the Securities of any series, as well as any
premium thereon in case of redemption thereof prior to maturity, shall be
payable in the coin or currency of the United States of America that at the time
is legal tender for public and private debt, at the office or agency of the
Company maintained for that purpose in the Borough of Manhattan, the City and
State of New York; provided, however, that at the option of the Company payment
-------- -------
of interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register. Each Security
shall be dated the date of its authentication by the Trustee. Except as
otherwise provided for under Section 2.01(4), interest on the Securities shall
be computed on the basis of a 360-day year composed of twelve 30-day months.
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(b) Except as contemplated by Section 2.01(5), the interest installment on
any Security that is payable, and is punctually paid or duly provided for, on
any Interest Payment Date for Securities of that series shall be paid to the
Person in whose name said Security (or one or more Predecessor Securities) is
registered at the close of business on the regular record date for such interest
installment. In the event that any Security of a particular series or portion
thereof is called for redemption and the redemption date is subsequent to a
regular record date with respect to any Interest Payment Date and prior to such
Interest Payment Date, interest on such Security will be paid upon presentation
and surrender of such Security as provided in Section 3.03. Any interest on any
Security that is payable, but is not punctually paid or duly provided for, on
any Interest Payment Date for Securities of the same series (herein called
"Defaulted Interest") shall forthwith cease to be payable to the registered
holder on the relevant regular record date by virtue of having been such holder;
and such Defaulted Interest shall be paid by the Company, at its election, as
provided in clause (1) or clause (2) below:
(1) The Company may make payment of any Defaulted Interest on Securities to
the Persons in whose names such Securities (or their respective Predecessor
Securities) are registered at the close of business on a special record date for
the payment of such Defaulted Interest, which shall be fixed in the following
manner: the Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each such Security and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a special record date for the payment of such Defaulted Interest which
shall not be more than 15 nor less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify the
Company of such special record date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the special record date therefor to be mailed, first class postage prepaid,
to each Securityholder at his or her address as it appears in the Security
Register (as hereinafter defined), not less than 10 days prior to such special
record date. Notice of the proposed payment of such Defaulted Interest and the
special record date therefor having been mailed as aforesaid, such Defaulted
Interest shall be paid to the Persons in whose names such Securities (or their
respective Predecessor Securities) are registered on such special record date.
(2) The Company may make payment of any Defaulted Interest on any
Securities in any other lawful manner not inconsistent with the requirements of
any securities exchange on which such Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Unless otherwise set forth in a Board Resolution or one or more indentures
supplemental hereto establishing the terms of any series of Securities pursuant
to Section 2.01 hereof, the term "regular record date" as used in this Section
2.03(b) with respect to a series of Securities with
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respect to any Interest Payment Date for such series shall mean either (i) the
fifteenth day of the month immediately preceding the month in which an Interest
Payment Date established for such series pursuant to Section 2.01 hereof shall
occur, if such Interest Payment Date is the first day of a month, or (ii) the
last day of the month immediately preceding the month in which an Interest
Payment Date established for such series pursuant to Section 2.01 hereof shall
occur, if such Interest Payment Date is the fifteenth day of a month, whether or
not such day is a Business Day.
(c) Subject to the foregoing provisions of this Section, each Security of a
series delivered under this Indenture upon transfer of or in exchange for or in
lieu of any other Security of such series shall carry the rights to interest
accrued and unpaid, and to accrue, that were carried by such other Security.
Section 2.04 Execution and Authentication.
(a) The Securities shall be signed on behalf of the Company by its
President, or one of its Vice Presidents, together with its Treasurer, or one of
its Assistant Treasurers, or its Secretary or one of its Assistant Secretaries.
Signatures may be the manual or facsimile signatures of the present or any such
future officers. The Company may use the facsimile signature of any Person who
shall have been a President or Vice President thereof, or of any Person who
shall have been the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary thereof, notwithstanding the fact that at the time the
Securities shall be authenticated and delivered or disposed of such Person shall
have ceased to be the President or a Vice President, or the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company.
The Securities may contain such notations, legends or endorsements required by
law, stock exchange rule or usage. Each Security shall be dated the date of its
authentication by the Trustee.
(b) A Security shall not be valid until authenticated manually by an
authorized signatory of the Trustee, or by an Authenticating Agent. Such
signature shall be conclusive evidence that the Security so authenticated has
been duly authenticated and delivered hereunder and that the holder is entitled
to the benefits of this Indenture.
(c) At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a written order of the
Company for the authentication and delivery of such Securities, signed by its
President or any Vice President and its Controller or any Assistant Controller
or its Secretary or any Assistant Secretary, and the Trustee in accordance with
such written order shall authenticate and deliver such Securities.
(d) In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 7.01) shall be
fully protected in relying upon, an Officers' Certificate and Opinion of Counsel
each stating that the form and terms thereof have been established in conformity
with the provisions of this Indenture. The Trustee shall not be required to
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authenticate such Securities if the issue of such Securities pursuant to this
Indenture will affect the Trustee's own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner that is not reasonably
acceptable to the Trustee.
Section 2.05 Registration of Transfer and Exchange.
(a) Securities of any series may be exchanged upon presentation thereof at
the office or agency of the Company designated for such purpose in the Borough
of Manhattan, the City and State of New York, for other Securities of such
series of authorized denominations, and for a like aggregate principal amount,
upon payment of a sum sufficient to cover any tax or other governmental charge
in relation thereto, all as provided in this Section. In respect of any
Securities so surrendered for exchange, the Company shall execute, the Trustee
shall authenticate and such office or agency shall deliver in exchange therefor
the Security or Securities of the same series that the Securityholder making the
exchange shall be entitled to receive, bearing numbers not contemporaneously
outstanding.
(b) The Company shall keep, or cause to be kept, at its office or agency
designated for such purpose in the Borough of Manhattan, the City and State of
New York, or such other location designated by the Company a register or
registers (herein referred to as the "Security Register") in which, subject to
such reasonable regulations as it may prescribe, the Company shall register the
Securities and the transfers of Securities as in this Article provided and which
at all reasonable times shall be open for inspection by the Trustee. The
registrar for the purpose of registering Securities and transfer of Securities
as herein provided shall be appointed as authorized by Board Resolution (the
"Security Registrar"). Upon surrender for transfer of any Security at the office
or agency of the Company designated for such purpose, the Company shall execute,
the Trustee shall authenticate and such office or agency shall deliver in the
name of the transferee or transferees a new Security or Securities of the same
series as the Security presented for a like aggregate principal amount. All
Securities presented or surrendered for exchange or registration of transfer, as
provided in this Section, shall be accompanied (if so required by the Company or
the Security Registrar) by a written instrument or instruments of transfer, in
form satisfactory to the Company or the Security Registrar, duly executed by the
registered holder or by such holder's duly authorized attorney in writing.
(c) No service charge shall be made for any exchange or registration of
transfer of Securities, or issue of new Securities in case of partial redemption
of any series, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge in relation thereto, other than exchanges
pursuant to Section 2.06, Section 3.03(b) and Section 9.04 not involving any
transfer. The Company shall not be required (i) to issue, exchange or register
the transfer of any Securities during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of less
than all the Outstanding Securities of the same series and ending at the close
of business on the day of such mailing, nor (ii) to register the transfer of or
exchange any Securities of any series or portions thereof called for redemption.
The provisions of this Section 2.05 are, with respect to any Global Security,
subject to Section 2.11 hereof.
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Section 2.06 Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute, and the Trustee shall authenticate and deliver, temporary
Securities (printed, lithographed or typewritten) of any authorized
denomination. Such temporary Securities shall be substantially in the form of
the definitive Securities in lieu of which they are issued, but with such
omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Company. Every temporary Security of
any series shall be executed by the Company and be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with like
effect, as the definitive Securities of such series. Without unnecessary delay
the Company will execute and will furnish definitive Securities of such series
and thereupon any or all temporary Securities of such series may be surrendered
in exchange therefor (without charge to the holders), at the office or agency of
the Company designated for the purpose in the Borough of Manhattan, the City and
State of New York, and the Trustee shall authenticate and such office or agency
shall deliver in exchange for such temporary Securities an equal aggregate
principal amount of definitive Securities of such series, unless the Company
advises the Trustee to the effect that definitive Securities need not be
executed and furnished until further notice from the Company. Until so
exchanged, the temporary Securities of such series shall be entitled to the same
benefits under this Indenture as definitive Securities of such series
authenticated and delivered hereunder.
Section 2.07 Mutilated, Destroyed, Lost or Stolen Securities.
In case any temporary or definitive Security shall become mutilated or be
destroyed, lost or stolen, the Company (subject to the next succeeding sentence)
shall execute, and upon the Company's request the Trustee (subject as aforesaid)
shall authenticate and deliver, a new Security of the same series, bearing a
number not contemporaneously outstanding, in exchange and substitution for the
mutilated Security, or in lieu of and in substitution for the Security so
destroyed, lost or stolen. In every case the applicant for a substituted
Security shall furnish to the Company and the Trustee such security or indemnity
as may be required by them to save each of them harmless, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Company and
the Trustee evidence to their satisfaction of the destruction, loss or theft of
the applicant's Security and of the ownership thereof. The Trustee shall
authenticate any such substituted Security and deliver the same upon the written
request or authorization of any officer of the Company. Upon the issuance of any
substituted Security, the Company may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee)
connected therewith. In case any Security that has matured or is about to mature
shall become mutilated or be destroyed, lost or stolen, the Company may, instead
of issuing a substitute Security, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated Security) if the
applicant for such payment shall furnish to the Company and the Trustee such
security or indemnity as they may require to save them harmless, and, in case of
destruction, loss or theft, evidence to the satisfaction of the Company and the
Trustee of the destruction, loss or theft of such Security and of the ownership
thereof. Every replacement Security issued pursuant to the provisions of this
Section shall constitute an additional
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contractual obligation of the Company whether or not the mutilated, destroyed,
lost or stolen Security shall be found at any time, or be enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of the same series duly issued
hereunder. All Securities shall be held and owned upon the express condition
that the foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities, and shall preclude
(to the extent lawful) any and all other rights or remedies, notwithstanding any
law or statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
Section 2.08 Cancellation.
All Securities surrendered for the purpose of payment, redemption, exchange
or registration of transfer shall, if surrendered to the Company or any paying
agent, be delivered to the Trustee for cancellation, or, if surrendered to the
Trustee, shall be cancelled by it, and no Securities shall be issued in lieu
thereof except as expressly required or permitted by any of the provisions of
this Indenture. On request of the Company at the time of such surrender, the
Trustee shall deliver to the Company canceled Securities held by the Trustee. In
the absence of such request the Trustee may dispose of canceled Securities in
accordance with its standard procedures and deliver a certificate of disposition
to the Company. If the Company shall otherwise acquire any of the Securities,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities unless and until the same are
delivered to the Trustee for cancellation.
Section 2.09 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give or be construed to give to any Person, other than the parties hereto and
the holders of the Securities any legal or equitable right, remedy or claim
under or in respect of this Indenture, or under any covenant, condition or
provision herein contained; all such covenants, conditions and provisions being
for the sole benefit of the parties hereto and of the holders of the Securities.
Section 2.10 Authenticating Agent.
So long as any of the Securities of any series remain Outstanding there may
be an Authenticating Agent for any or all such series of Securities which the
Trustee shall have the right to appoint. Said Authenticating Agent shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, transfer or partial redemption thereof, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. All references in this Indenture to the authentication of
Securities by the Trustee shall be deemed to include authentication by an
Authenticating Agent for such series. Each Authenticating Agent shall be
acceptable to the Company and shall be a corporation that has a combined capital
and surplus, as most recently reported or determined by it, sufficient under the
laws of any
15
jurisdiction under which it is organized or in which it is doing business to
conduct a trust business, and that is otherwise authorized under such laws to
conduct such business and is subject to supervision or examination by Federal or
State authorities. If at any time any Authenticating Agent shall cease to be
eligible in accordance with these provisions, it shall resign immediately.
Any Authenticating Agent may at any time resign by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time (and
upon request by the Company shall) terminate the agency of any Authenticating
Agent by giving written notice of termination to such Authenticating Agent and
to the Company. Upon resignation, termination or cessation of eligibility of any
Authenticating Agent, the Trustee may appoint an eligible successor
Authenticating Agent acceptable to the Company. Any successor Authenticating
Agent, upon acceptance of its appointment hereunder, shall become vested with
all the rights, powers and duties of its predecessor hereunder as if originally
named as an Authenticating Agent pursuant hereto.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided that such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
Section 2.11 Global Securities.
(a) If the Company shall establish pursuant to Section 2.01 that the
Securities of a particular series are to be issued as a Global Security, then
the Company shall execute and the Trustee shall, in accordance with Section
2.04, authenticate and deliver, one or more Global Securities that:
(1) shall represent, and shall be denominated in an amount equal to the
aggregate principal amount of, all or a portion of the Outstanding
Securities of such series;
(2) shall be registered in the name of the Depositary or its nominee;
(3) shall be delivered by the Trustee to the Depositary or pursuant to the
Depositary's instruction; and
(4) shall bear a legend substantially to the following effect: "Except as
otherwise provided in Section 2.11 of the Indenture, this Security may
be transferred, in whole but not in part, only to the Depositary,
another nominee of the Depositary or to a successor Depositary or to a
nominee of such successor Depositary."
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(b) Notwithstanding the provisions of Section 2.05, a Global Security of a
series may be transferred, in whole but not in part and in the manner provided
in Section 2.05, only to the Depositary for such series, another nominee of the
Depositary for such series, or to a successor Depositary for such series
selected or approved by the Company or to a nominee of such successor
Depositary.
(c) If (i) at any time the Depositary for a series of the Securities
notifies the Company that it is unwilling or unable to continue as Depositary
for such series or if at any time the Depositary for such series shall no longer
be registered or in good standing under the Exchange Act, or other applicable
statute or regulation, and a successor Depositary for such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such condition, as the case may be, or (ii) an Event of
Default has occurred and is continuing, then this Section 2.11 shall no longer
be applicable to the Securities of such series and the Company will execute, and
subject to Section 2.05, the Trustee will authenticate and deliver the
Securities of such series in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security of such series in exchange for such
Global Security. In addition, the Company may at any time determine that the
Securities of any series shall no longer be represented by a Global Security and
that the provisions of this Section 2.11 shall no longer apply to the Securities
of such series. In such event the Company will execute and subject to Section
2.05, the Trustee, upon receipt of an Officers' Certificate evidencing such
determination by the Company, will authenticate and deliver the Securities of
such series in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security of such series in exchange for such Global
Security. Upon the exchange of the Global Security for such Securities in
definitive registered form without coupons, in authorized denominations, the
Global Security shall be canceled by the Trustee. Such Securities in definitive
registered form issued in exchange for the Global Security pursuant to this
Section 2.11(c) shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Securities to the Depositary for delivery to the Persons in
whose names such Securities are so registered.
ARTICLE III
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
Section 3.01 Redemption.
The Company may redeem the Securities of any series issued hereunder on and
after the dates and in accordance with the terms established for such series
pursuant to Section 2.01 hereof.
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Section 3.02 Notice of Redemption.
(a) In case the Company shall desire to exercise such right to redeem all
or, as the case may be, a portion of the Securities of any series in accordance
with the right reserved so to do, the Company shall, or shall cause the Trustee
(by providing to the Trustee at least 45 days prior notice of the date fixed for
redemption) to, give notice of such redemption to holders of the Securities of
such series to be redeemed by mailing, first class postage prepaid, a notice of
such redemption not less than 30 days and not more than 60 days before the date
fixed for redemption of that series to such holders at their last addresses as
they shall appear upon the Security Register unless a shorter period is
specified in the Securities to be redeemed. Any notice that is mailed in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not the registered holder receives the notice. In any case, failure
duly to give such notice to the holder of any Security of any series designated
for redemption in whole or in part, or any defect in the notice, shall not
affect the validity of the proceedings for the redemption of any other
Securities of such series or any other series. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with any such restriction.
(b) Each notice of redemption shall specify the date fixed for redemption
and the redemption price at which Securities of that series are to be redeemed,
and shall state (i) that payment of the redemption price of such Securities to
be redeemed will be made at the office or agency of the Company in the Borough
of Manhattan, the City and State of New York, upon presentation and surrender of
such Securities, (ii) that interest accrued to the date fixed for redemption
will be paid as specified in said notice, (iii) that from and after said date
interest will cease to accrue and (iv) that the redemption is for a sinking
fund, if such is the case. If less than all the Securities of a series are to be
redeemed, the notice to the holders of Securities of that series to be redeemed
in whole or in part shall specify the particular Securities to be so redeemed.
In case any Security is to be redeemed in part only, the notice that relates to
such Security shall state the portion of the principal amount thereof to be
redeemed, and shall state that on and after the redemption date, upon surrender
of such Security, a new Security or Securities of such series in principal
amount equal to the unredeemed portion thereof will be issued.
(c) If less than all the Securities of a series are to be redeemed, the
Company shall give the Trustee at least 45 days' notice in advance of the date
fixed for redemption as to the aggregate principal amount of Securities of the
series to be redeemed, and thereupon the Trustee shall select, by lot or in such
other manner as it shall deem appropriate and fair in its discretion and that
may provide for the selection of a portion or portions (equal to one thousand
U.S. dollars ($1,000) or any integral multiple thereof) of the principal amount
of such Securities of a denomination larger than $1,000, the Securities to be
redeemed and shall thereafter promptly notify the Company in writing of the
numbers of the Securities to be redeemed, in whole or in part. The Company may,
if and whenever it shall so elect, by delivery of instructions signed on its
behalf by its President or any Vice President, instruct the Trustee or any
paying agent to call all or any part of the Securities of a particular series
for redemption and to give notice of
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redemption in the manner set forth in this Section, such notice to be in the
name of the Company or its own name as the Trustee or such paying agent as it
may deem advisable. In any case in which notice of redemption is to be given by
the Trustee or any such paying agent, the Company shall deliver or cause to be
delivered to, or permit to remain with, the Trustee or such paying agent, as the
case may be, such Security Register, transfer books or other records, or
suitable copies or extracts therefrom, sufficient to enable the Trustee or such
paying agent to give any notice by mail that may be required under the
provisions of this Section.
Section 3.03 Payment Upon Redemption.
(a) If the giving of notice of redemption shall have been completed as
above provided, the Securities or portions of Securities of the series to be
redeemed specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption and interest on such
Securities or portions of Securities shall cease to accrue on and after the date
fixed for redemption, unless the Company shall default in the payment of such
redemption price or accrued interest with respect to any such Security or
portion thereof. On presentation and surrender of such Securities on or after
the date fixed for redemption at the place of payment specified in the notice,
said Securities shall be paid and redeemed at the applicable redemption price
for such series, together with interest accrued thereon to the date fixed for
redemption (but if the date fixed for redemption is an Interest Payment Date,
the interest installment payable on such date shall be payable to the registered
holder at the close of business on the applicable record date pursuant to
Section 2.03).
(b) Upon presentation of any Security of such series that is to be redeemed
in part only, the Company shall execute and the Trustee shall authenticate and
the office or agency where the Security is presented shall deliver to the holder
thereof, at the expense of the Company, a new Security of the same series of
authorized denominations in principal amount equal to the unredeemed portion of
the Security so presented.
Section 3.04 Sinking Fund.
The provisions of Sections 3.04, 3.05 and 3.06 shall be applicable to any
sinking fund for the retirement of Securities of a series, except as otherwise
specified as contemplated by Section 2.01 for Securities of such series. The
minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 3.05. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series.
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Section 3.05 Satisfaction of Sinking Fund Payments with Securities.
The Company:
(1) may deliver Outstanding Securities of a series (other than any
Securities previously called for redemption); and
(2) may apply as a credit Securities of a series that have been redeemed
either at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities.
In each case in satisfaction of all or any part of any sinking fund payment with
respect to the Securities of such series required to be made pursuant to the
terms of such Securities as provided for by the terms of such series, provided
that such Securities have not been previously so credited. Such Securities shall
be received and credited for such purpose by the Trustee at the redemption price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 3.06 Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of the series, the portion thereof, if any,
that is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 3.05 and the basis for such credit and will, together with
such Officers' Certificate, deliver to the Trustee any Securities to be so
delivered. Not less than 30 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 3.02 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 3.02. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Section 3.03.
ARTICLE IV
COVENANTS
Section 4.01 Payment of Principal, Premium and Interest.
The Company will duly and punctually pay or cause to be paid (in the
currency or currency unit in which the Securities of such series are payable)
the principal of (and premium, if any) on the Securities, and the interest which
shall have accrued thereon, of each series at the time and place and in the
manner provided herein and established with respect to such Securities.
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Section 4.02 Maintenance of Office or Agency.
So long as any series of the Securities remain Outstanding, the Company
agrees to maintain an office or agency in the Borough of Manhattan, the City and
State of New York, with respect to each such series and at such other location
or locations as may be designated as provided in this Section 4.02, where (i)
Securities of that series may be presented for payment, (ii) Securities of that
series may be presented as hereinabove authorized for registration of transfer
and exchange, and (iii) notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be given or served, such
designation to continue with respect to such office or agency until the Company
shall, by written notice signed by its President or a Vice President and
delivered to the Trustee, designate some other office or agency in the Borough
of Manhattan, the City and State of New York for such purposes or any of them.
If at any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, notices and demands. The Company may also
from time to time designate one or more other offices or agencies where the
Securities of one or more series may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City and State of New York for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
Section 4.03 Paying Agents.
(a) If the Company shall appoint one or more paying agents for all or any
series of the Securities, other than the Trustee, the Company will cause each
such paying agent to execute and deliver to the Trustee an instrument in which
such agent shall agree with the Trustee, subject to the provisions of this
Section:
(1) that it will hold all sums held by it as such agent for the payment of
the principal of (and premium, if any) or interest on the Securities
of that series (whether such sums have been paid to it by the Company
or by any other obligor of such Securities) in trust for the benefit
of the Persons entitled thereto;
(2) that it will give the Trustee notice of any failure by the Company (or
by any other obligor of such Securities) to make any payment of the
principal of (and premium, if any) or interest on the Securities of
that series when the same shall be due and payable;
(3) that it will, at any time during the continuance of any failure
referred to in the preceding paragraph (a)(2) above, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held
in trust by such paying agent; and
21
(4) that it will perform all other duties of paying agent as set forth in
this Indenture.
(b) If the Company shall act as its own paying agent with respect to any
series of the Securities, it will on or before each due date of the principal of
(and premium, if any) or interest on Securities of that series, set aside,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay such principal (and premium, if any) or interest so
becoming due on Securities of that series until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will promptly notify the
Trustee of such action, or any failure (by it or any other obligor on such
Securities) to take such action. Whenever the Company shall have one or more
paying agents for any series of Securities, it will, prior to each due date of
the principal of (and premium, if any) or interest on any Securities of that
series, deposit with the paying agent a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal, premium or interest, and
(unless such paying agent is the Trustee) the Company will promptly notify the
Trustee of this action or failure so to act.
(c) Notwithstanding anything in this Section to the contrary,
(1) the agreement to hold sums in trust as provided in this Section is
subject to the provisions of Section 12.05, and
(2) the Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose,
pay, or direct any paying agent to pay, to the Trustee all sums held
in trust by the Company or such paying agent, such sums to be held by
the Trustee upon the same terms and conditions as those upon which
such sums were held by the Company or such paying agent; and, upon
such payment by any paying agent to the Trustee, such paying agent
shall be released from all further liability with respect to such
money.
Section 4.04 Appointment to Fill Vacancy in Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 7.11, a Trustee, so
that there shall at all times be a Trustee hereunder.
Section 4.05 Limitations on Liens.
(a) The Company agrees that it shall not, nor shall it permit any
Restricted Subsidiary to, issue, incur, create, assume or guarantee any debt for
borrowed money, collectively referred to as "Debt," secured by any mortgage,
deed of trust, security interest, pledge, lien, charge or other encumbrance,
each a "Lien" and collectively "Liens," upon any Principal Property, shares of
stock (or other equivalents of or interests in equity) or indebtedness of a
Restricted Subsidiary, without in any such case providing concurrently with the
issuance, incurrence, creation, assumption or guaranty of such secured Debt, or
the grant of such Lien, that the Securities (and, at the Company's option, any
other Indebtedness of or Guarantee by the
22
Company ranking equally with the Securities) shall be secured equally and
ratably with (or, at the option of the Company, prior to) such secured Debt. The
foregoing restriction, however, will not apply to Debt secured by:
(1) Liens on property, shares of stock (or other equivalents of or
interests in equity) or indebtedness of a Person existing at the time such
Person becomes a Restricted Subsidiary, provided that such Liens were not
--------
created in anticipation of the transaction in which such Person becomes a
Restricted Subsidiary;
(2) Liens on property acquired by the Company or a Restricted
Subsidiary existing at the time of acquisition by the Company or a
Restricted Subsidiary;
(3) Liens on property acquired by the Company or a Restricted
Subsidiary and created prior to, at the time of, or within 360 days after
the acquisition of such property, or the completion of construction, the
completion of improvements or the commencement of substantial commercial
operation of such property, for the purpose of financing all or any part of
the purchase price of such property, such construction or the making of
such improvements;
(4) Liens in favor of the Company or a Restricted Subsidiary to secure
Debt owing to the Company or a Restricted Subsidiary;
(5) Liens existing on the date of the initial issuance of any
Securities;
(6) Liens on property, shares of stock (or other equivalents of or
interests in equity) or indebtedness of a Person existing at the time such
Person is merged into or consolidated with the Company or a Restricted
Subsidiary or at the time of a sale, lease or other disposition of all or
substantially all of the properties of a Person as an entirety or
substantially as an entirety to the Company or a Restricted Subsidiary,
provided that such Lien was not incurred in anticipation of such merger or
--------
consolidation or sale, lease or other disposition;
(7) Liens on property of the Company or a Restricted Subsidiary in
favor of governmental bodies to secure payments of amounts owed under any
contract or statute or to secure any Debt incurred for the purpose of
financing all or any part of the purchase price or the cost of constructing
or improving the property subject to such Liens;
(8) Liens created in connection with a project financed with, and
created to secure, a nonrecourse obligation;
(9) the sale or other transfer of any interest in property commonly
referred to as a "production payment"; and
(10) any extension, renewal or replacement of any Lien referred to in
the foregoing clauses (1) through (9) or of any Debt secured thereby;
provided, that such
--------
23
extension, renewal or replacement Lien shall secure no larger an amount of
Debt than that existing at the time of such extension, renewal or
replacement.
(b) Notwithstanding the restrictions in Section 4.05(a), the Company
or a Restricted Subsidiary may issue, incur, create, assume or guarantee Debt
secured by a Lien which would otherwise be subject to the foregoing
restrictions, without equally and ratably securing the Securities, provided that
--------
after giving effect thereto, the aggregate principal amount of (x) all Debt so
secured by Liens (not including Liens permitted under clauses (1) through (10)
above) plus (y) all Attributable Debt of Sale and Lease-Back Transactions
permitted under Section 4.06 does not exceed 15% of Consolidated Net Tangible
Assets.
Section 4.06 Limitations on Sale and Lease-Back Transactions.
(a) The Company agrees that it shall not, nor shall it allow any Restricted
Subsidiary to, enter into, any Sale and Lease-Back Transaction with respect to
any Principal Property, unless at the effective time of such transaction:
(1) such Sale and Lease-Back Transaction (A) involves a lease for a
term of not more than three years, (B) is between the Company and a
Restricted Subsidiary or between Restricted Subsidiaries or (C) the Company
or the Restricted Subsidiary would be allowed, pursuant to Section 4.05,
without equally and ratably securing the Securities, to incur Debt secured
by a Lien in an amount at least equal to the Attributable Debt with respect
to such Sale and Lease-Back Transaction; or
(2) the Company or such Restricted Subsidiary, within 360 days after
the closing date of such Sale and Lease-Back Transaction, applies or causes
to be applied an amount equal to the greater of (i) the net proceeds of
such sale or (ii) the Attributable Debt from such Sale and Lease-Back
Transaction to either (or a combination of) (x) the prepayment, repayment,
redemption, reduction or retirement (other than any mandatory prepayment,
mandatory repayment, mandatory redemption or sinking fund payment or
payment at maturity) of Debt of the Company or any Restricted Subsidiary
(other than Debt that is subordinate to the Securities or any Guarantee or
Debt to the Company or a Restricted Subsidiary) that matures more than 12
months after its creation; provided, however, the amount to be applied to
-------- -------
the prepayment or retirement of debt for borrowed money shall be reduced by
the principal amount of any debt securities of the Company or a Restricted
Subsidiary delivered within 360 days after such Sale and Lease-Back
Transaction to the applicable trustee or paying agent for retirement and
cancellations or (y) expenditures for the purchase, construction,
development or expansion of other property, facilities or equipment.
(b) The term "Sale and Lease-Back Transaction" means any arrangement with
any Person providing for the leasing by the Company or any Restricted Subsidiary
of any Principal Property, whether owned at the date of this Indenture or
thereafter acquired (excluding temporary leases of a term, including renewal
periods, of not more than three years), that has
24
been or is to be sold or transferred by the Company or any Restricted Subsidiary
to such Person with the intention of taking back a lease of such property.
(c) The term "Attributable Debt" means, in respect of a Sale and Lease-Back
Transaction, at the time of determination, the present value (discounted at the
weighted average effective interest cost per annum of the outstanding debt
securities of all series, compounded semiannually) of the obligation of the
lessee for rental payments during the remaining term of the lease included in
such transaction, including any period for which such lease has been extended or
may, at the option of the lessor, be extended or, if earlier, until the earliest
date of which the lessee may terminate such lease upon payment of a penalty (in
which case the obligation of the lessee for rental payments will include such
penalty), after excluding all amounts required to be paid on account of
maintenance and repairs, insurance, taxes, assessments, water and utility rates
and similar charges.
Section 4.07 Subsidiary Guarantees.
If at any time a Subsidiary is or becomes a Guarantor Subsidiary, at the
time of the incurrence of the Indebtedness or Guarantee of any Indebtedness by
such Subsidiary the Company shall cause such Subsidiary to enter into a
Subsidiary Guarantee, execute a supplemental indenture in connection therewith
and deliver an Opinion of Counsel as to the enforceability of such supplemental
indenture and Subsidiary Guarantee in form satisfactory to the Trustee within 10
Business Days of the date when such Subsidiary is or becomes a Guarantor
Subsidiary. Each Subsidiary Guarantee shall be joint and several obligation of
the Guarantor Subsidiary; provided, however, that the obligations of each
-------- -------
Guarantor Subsidiary under its Subsidiary Guarantee shall be limited as provided
in Section 11.02.
ARTICLE V
SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE
TRUSTEE
Section 5.01 Company to Furnish Trustee Names and Addresses of Securityholders.
The Company will furnish or cause to be furnished to the Trustee
(1) not more than 15 days after each regular record date (as defined in
Section 2.03) a list, in such form as the Trustee may reasonably
require, of the names and addresses of the holders of each series of
Securities as of such regular record date, provided, however, that the
-------- -------
Company shall not be obligated to furnish or cause to furnish such
list at any time that the list shall not differ in any respect from
the most recent list furnished to the Trustee by the Company and
(2) at such other times as the Trustee may request in writing within 30
days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to
the time such list is furnished;
25
provided, however, that, in either case, no such list need be furnished for any
-------- -------
series for which the Trustee shall be the Security Registrar.
Section 5.02 Preservation Of Information; Communications With Securityholders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the holders of
Securities contained in the most recent list furnished to it as provided in
Section 5.01 and as to the names and addresses of holders of Securities received
by the Trustee in its capacity as Security Registrar (if acting in such
capacity).
(b) The Trustee may destroy any list furnished to it as provided in Section
5.01 upon receipt of a new list so furnished.
(c) Securityholders may communicate as provided in Section 312(b) of the
Trust Indenture Act with other Securityholders with respect to their rights
under this Indenture or under the Securities.
Section 5.03 Reports by the Company.
(a) The Company covenants and agrees to file with the Trustee, within 15
days after the Company is required to file the same with the Commission, copies
of the annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe) that the Company may be required to
file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange
Act; or, if the Company is not required to file information, documents or
reports pursuant to either of such sections, then to file with the Trustee and
the Commission, in accordance with the rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic
information, documents and reports that may be required pursuant to Section 13
of the Exchange Act, in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in such
rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed from to time
by the Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants provided
for in this Indenture as may be required from time to time by such rules and
regulations.
(c) The Company covenants and agrees to transmit by mail, first class
postage prepaid, or reputable overnight delivery service that provides for
evidence of receipt, to the Securityholders, as their names and addresses appear
upon the Security Register, within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents and reports required to be
filed by the Company pursuant to subsections (a) and (b) of this Section as may
be required by rules and regulations prescribed from time to time by the
Commission.
26
Section 5.04 Reports by the Trustee.
(a) On or before March 1, commencing with the first March 1 occurring after
the first issuance of Securities under this Indenture, the Trustee shall
transmit by mail, first class postage prepaid, to the Securityholders, as their
names and addresses appear upon the Security Register, a brief report dated as
of the preceding December 1, if and to the extent required under Section 313(a)
of the Trust Indenture Act.
(b) The Trustee shall comply with Section 313(b) and 313(c) of the Trust
Indenture Act.
(c) A copy of each such report shall, at the time of such transmission to
Securityholders, be filed by the Trustee with the Company, with each stock
exchange upon which any Securities are listed (if so listed) and also with the
Commission. The Company agrees to notify the Trustee when any Securities become
listed on any stock exchange.
Section 5.05 No Accountability by Reason of Disclosure.
Each and every holder, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Securityholders in accordance with the provisions of this
Article V regardless of the source from which such information was derived and
the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under this Article V.
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF
DEFAULT
Section 6.01 Events of Default.
(a) Whenever used herein with respect to Securities of a particular series,
"Event of Default" means any one or more of the following events that has
occurred and is continuing (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) the Company defaults in the payment of any installment of interest
upon any of the Securities of that series, as and when the same shall
become due and payable, and continuance of such default for a period
of 30 days; provided, however, that a valid extension of an interest
-------- -------
payment period by the Company in accordance with the terms of this
Indenture shall not constitute a default in the payment of interest
for this purpose;
27
(2) the Company defaults in the payment of the principal of (or premium,
if any, on) any of the Securities of that series as and when the same
shall become due and payable whether at maturity, upon redemption, by
declaration or otherwise, or in any payment required by any sinking or
analogous fund established with respect to that series; provided,
--------
however, that a valid extension of the maturity of such Securities in
------
accordance with the terms of this Indenture shall not constitute a
default in the payment of principal or premium, if any;
(3) the Company or any Restricted Subsidiary fails to observe or perform
any other of its covenants or agreements with respect to that series
contained in this Indenture or otherwise established with respect to
that series of Securities pursuant to Section 2.01 hereof (other than
a covenant or agreement that has been expressly included in this
Indenture solely for the benefit of one or more series of Securities
other than such series) for a period of 60 days after the date on
which written notice of such failure, requiring the same to be
remedied and stating that such notice is a "Notice of Default"
hereunder, shall have been given to the Company by the Trustee, by
registered or certified mail, or to the Company and the Trustee by the
holders of at least 25% in aggregate principal amount of the
Securities of that series at the time Outstanding;
(4) a default under any Debt by the Company or any Restricted Subsidiary
that results in the acceleration of the maturity of such Debt or
failure to pay any such Debt, or failure to pay any such Debt at
maturity, in an aggregate amount greater than $25 million or its
foreign currency equivalent at the time and such Debt is not
discharged or the acceleration is not annulled within seven days of
written notice of acceleration;
(5) the Company or any Guarantor Subsidiary pursuant to or within the
meaning of any Bankruptcy Law
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in an
involuntary case,
(iii) consents to the appointment of a Custodian or other similar
official of it or for all or substantially all of its property,
(iv) makes a general assignment for the benefit of its creditors, or
(v) generally is not paying its debts as they become due; or
(6) a court of competent jurisdiction enters an order under any Bankruptcy
Law that
(i) is for relief against the Company or any Guarantor Subsidiary in
an involuntary case,
28
(ii) appoints a Custodian or other similar official of the Company or
any Guarantor Subsidiary for all or substantially all of its
property, or
(iii) orders wind-up or other liquidation or reorganization of the
Company or any Guarantor Subsidiary, and the order remains
unstayed and in effect for 90 days.
(7) Any Subsidiary Guarantee by a Guarantor Subsidiary ceases to be, or is
asserted in writing by any Guarantor Subsidiary or by the Company not
to be, in full force and effect, and enforceable in accordance with
its terms (other than by reason of the termination of this Indenture
or the release or discharge of any such Subsidiary Guarantee in
accordance with the terms hereof) continues unremedied for ten days.
(b) In each and every such case (other than an Event of Default specified
in Section 6.01(a)(5) or 6.01(a)(6)), unless the principal of all the Securities
of that series shall have already become due and payable, either the Trustee or
the holders of not less than 25% in aggregate principal amount of the Securities
of that series then Outstanding hereunder, by notice in writing to the Company
(and to the Trustee if given by such Securityholders), may declare the principal
of all the Securities of that series to be due and payable immediately, and upon
any such declaration the same shall become and shall be immediately due and
payable, notwithstanding anything contained in this Indenture or in the
Securities of that series or established with respect to the series pursuant to
Section 2.01 to the contrary. If an Event of Default specified in Section
6.01(a)(5) or 6.01(a)(6) occurs and is continuing, the principal of all
Securities of that series shall become and be immediately due and payable
without any declaration or other act on the part of the Trustee or the holders
of Securities.
(c) At any time after the principal of the Securities of that series shall
have been so declared due and payable (or have become immediately due and
payable), and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, the holders of a
majority in aggregate principal amount of the Securities of that series then
Outstanding hereunder, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient to
pay all matured installments of interest upon all the Securities of
that series and the principal of (and premium, if any, on) any and all
Securities of that series that shall have become due otherwise than by
acceleration (with interest upon such principal and premium, if any,
and, to the extent that such payment is enforceable under applicable
law, upon overdue installments of interest, at the rate per annum
expressed in the Securities of that series to the date of such payment
or deposit) and the amount payable to the Trustee under Section 7.07,
and
29
(2) any and all Events of Default under the Indenture with respect to such
series, other than the nonpayment of principal on Securities of that
series that shall not have become due by their terms, shall have been
remedied or waived as provided in Section 6.06.
No such rescission and annulment shall extend to or shall affect any subsequent
default or impair any right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any right with
respect to Securities of a series under this Indenture and such proceedings
shall have been discontinued or abandoned because of such rescission or
annulment or for any other reason or shall have been determined adversely to the
Trustee, then and in every such case, subject to any determination in such
proceedings, the Company and the Trustee shall be restored respectively to their
former positions and rights hereunder, and all rights, remedies and powers of
the Company and the Trustee shall continue as though no such proceedings had
been taken.
Section 6.02 Collection of Indebtedness and Suits for Enforcement by Trustee.
(a) The Company covenants that:
(1) in case it shall default in the payment of any installment of interest
on any of the Securities of a series, as and when the same shall have
become due and payable, and such default shall have continued for a
period of 90 Business Days; or
(2) in case it shall default in the payment of the principal of (or
premium, if any, on) any of the Securities of a series when the same
shall have become due and payable, whether upon maturity of the
Securities of a series or upon redemption or upon declaration,
pursuant to any sinking or analogous fund established with respect to
that series or otherwise,
then, upon demand of the Trustee, the Company will pay to the Trustee, for the
benefit of the holders of the Securities of that series, the whole amount that
then shall have been become due and payable on all such Securities for principal
(and premium, if any) or interest, or both, as the case may be, with interest
upon the overdue principal (and premium, if any) and (to the extent that payment
of such interest is enforceable under applicable law) upon overdue installments
of interest at the rate per annum expressed in the Securities of that series;
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, and the amount payable to the Trustee
under Section 7.07.
(b) If the Company shall fail to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or other obligor upon the
Securities of that series and collect the moneys adjudged or decreed to be
payable in the manner
30
provided by law out of the property of the Company or other obligor upon the
Securities of that series, wherever situated.
(c) In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, readjustment, arrangement, composition or judicial proceedings
affecting the Company, or its creditors or property, the Trustee shall have
power to intervene in such proceedings and take any action therein that may be
permitted by the court and shall (except as may be otherwise provided by law) be
entitled to file such proofs of claim and other papers and documents as may be
necessary or advisable in order to have the claims of the Trustee and of the
holders of Securities of such series allowed for the entire amount due and
payable by the Company under the Indenture at the date of institution of such
proceedings and for any additional amount that may become due and payable by the
Company after such date, and to collect and receive any moneys or other property
payable or deliverable on any such claim, and to distribute the same after the
deduction of the amount payable to the Trustee under Section 7.07; and any
receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the holders of Securities of such series to make such
payments to the Trustee, and, in the event that the Trustee shall consent to the
making of such payments directly to such Securityholders, to pay to the Trustee
any amount due it under Section 7.07.
(d) All rights of action and of asserting claims under this Indenture, or
under any of the terms established with respect to Securities of that series,
may be enforced by the Trustee without the possession of any of such Securities,
or the production thereof at any trial or other proceeding relative thereto, and
any such suit or proceeding instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment shall,
after provision for payment to the Trustee of any amounts due under Section
7.07, be for the ratable benefit of the holders of the Securities of such
series.
(e) In case of an Event of Default hereunder, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in the Indenture or in aid of the exercise
of any power granted in this Indenture, or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
(f) Nothing contained herein shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities of that series or the rights of any holder thereof or to authorize
the Trustee to vote in respect of the claim of any Securityholder in any such
proceeding.
Section 6.03 Application of Moneys Collected.
Any moneys collected by the Trustee pursuant to this Article with respect
to a particular series of Securities shall be applied in the following order, at
the date or dates fixed by the
31
Trustee and, in case of the distribution of such moneys on account of principal
(or premium, if any) or interest, upon presentation of the Securities of that
series, and notation thereon of the payment, if only partially paid, and upon
surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection and of all
amounts payable to the Trustee under Section 7.07;
SECOND: To the payment of the amounts then due and unpaid upon
Securities of such series for principal (and premium, if any) and interest, or
any other amounts owed hereunder, in respect of which or for the benefit of
which such money has been collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest, respectively; and
THIRD: To the Company.
Section 6.04 Limitation on Suits.
No holder of any Security of any series shall have any right by virtue or
by availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such holder previously shall have given to the Trustee written notice
of an Event of Default and of the continuance thereof with respect to
the Securities of such series specifying such Event of Default, as
hereinbefore provided;
(2) the holders of not less than 25% in aggregate principal amount of the
Securities of such series then Outstanding shall have made written
request upon the Trustee to institute such action, suit or proceeding
in its own name as trustee hereunder;
(3) such holder or holders shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity, shall have failed to institute any such action,
suit or proceeding; and
(5) during such 60 day period, the holders of a majority in principal
amount of the Securities of that series do not give the Trustee a
direction inconsistent with the request.
Notwithstanding anything contained herein to the contrary, the right of any
holder of any Security to receive payment of the principal of (and premium, if
any) and interest on such Security, as therein provided, on the respective due
dates expressed in such Security (or in the case of redemption, on the
redemption date), or to institute suit for the enforcement of any such
32
payment on or after such respective dates or redemption date, shall not be
impaired or affected without the consent of such holder and by accepting a
Security hereunder it is expressly understood, intended and covenanted by the
taker and holder of every Security of such series with every other such taker
and holder and the Trustee, that no one or more holders of Securities of such
series shall have any right in any manner whatsoever by virtue or by availing of
any provision of this Indenture to affect, disturb or prejudice the rights of
the holders of any other of such Securities, or to obtain or seek to obtain
priority over or preference to any other such holder, or to enforce any right
under this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all holders of Securities of such series. For the
protection and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
Section 6.05 Rights and Remedies Cumulative; Delay or Omission Not Waiver.
(a) Except as otherwise provided in Section 2.07, all powers and remedies
given by this Article to the Trustee or to the Securityholders shall, to the
extent permitted by law, be deemed cumulative and not exclusive of any other
powers and remedies available to the Trustee or the holders of the Securities,
by judicial proceedings or otherwise, to enforce the performance or observance
of the covenants and agreements contained in this Indenture or otherwise
established with respect to such Securities.
(b) No delay or omission of the Trustee or of any holder of any of the
Securities to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power, or
shall be construed to be a waiver of any such default or on acquiescence
therein; and, subject to the provisions of Section 6.04, every power and remedy
given by this Article or by law to the Trustee or the Securityholders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Securityholders.
Section 6.06 Control by Securityholders.
The holders of a majority in aggregate principal amount of the Securities
of any series at the time Outstanding, determined in accordance with Section
8.04, shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee with respect to such series; provided,
--------
however, that such direction shall not be in conflict with any rule of law or
-------
with this Indenture or be unduly prejudicial to the rights of holders of
Securities of such series at the time Outstanding. Unless otherwise provided
under the Trust Indenture Act and subject to the provisions of Section 7.01, the
Trustee shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or Officers of the
Trustee, determine that the proceeding so directed would involve the Trustee in
personal liability. The holders of a majority in aggregate principal amount of
the Securities of any series at the time Outstanding affected thereby,
determined in accordance with Section 8.04, may on behalf of the holders of all
of the Securities of such series waive any past default in the performance of
any of the covenants contained herein or established pursuant to Section 2.01
with respect to such series and its
33
consequences, except (i) a default in the payment of the principal of (or
premium, if any) or interest on, any of the Securities of that series as and
when the same shall become due by the terms of such Securities otherwise than by
acceleration (unless such default has been cured and a sum sufficient to pay all
matured installments of interest and principal and any premium has been
deposited with the Trustee (in accordance with Section 6.01(c))) or (ii) in
respect of a covenant or provision hereof which under Article IX cannot be
modified or amended without the consent of the holder of each Outstanding
Security affected. Upon any such waiver, the default covered thereby shall be
deemed to be cured for all purposes of this Indenture and the Company, the
Trustee and the holders of the Securities of such series shall be restored to
their former positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other default or impair any right consequent
thereon.
Section 6.07 Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder of any Securities by
such holder's acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action
taken or omitted by it as Trustee, the filing by any party litigant in such suit
of an undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder, or group of
Securityholders, holding more than 10% in aggregate principal amount of the
Outstanding Securities of any series, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of (or
premium, if any) or interest on any Security of such series, on or after the
respective due dates expressed in such Security or established pursuant to this
Indenture.
ARTICLE VII
CONCERNING THE TRUSTEE
Section 7.01 Certain Duties and Responsibilities of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default with
respect to the Securities of a series and after the curing of all Events of
Default with respect to the Securities of that series that may have occurred,
shall undertake to perform with respect to the Securities of such series such
duties and only such duties as are specifically set forth in this Indenture, and
no implied covenants shall be read into this Indenture against the Trustee. In
case an Event of Default with respect to the Securities of a series has occurred
(that has not been cured or waived), the Trustee shall exercise with respect to
Securities of that series such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
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(b) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(1) prior to the occurrence of an Event of Default with respect to the
Securities of a series and after the curing or waiving of all such
Events of Default with respect to that series that may have occurred:
(i) the duties and obligations of the Trustee shall with respect
to the Securities of such series be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable with
respect to the Securities of such series except for the performance of
such duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may with respect to the Securities of such series conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions that
by any provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirement of this
Indenture;
(2) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the
direction of the holders of not less than a majority in aggregate
principal amount of the Securities of any series at the time
Outstanding relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee under this Indenture with
respect to the Securities of that series; and
(4) none of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if there is reasonable ground
for believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Indenture or adequate
indemnity against such risk is not reasonably assured to it.
35
Section 7.02 Notice of Defaults.
Within ninety (90) days after the occurrence of an Event of Default with
respect to the Securities of a Series, the Trustee shall, as provided in Section
315(b) of the Trust Indenture Act, give to the holders of the Securities of such
series notice of each default with respect to the Securities of such series
actually known to a Responsible Officer of the Trustee in the manner provided in
Section 313(c) of the Trust Indenture Act, unless such Event of Default shall
have been cured before the giving of such notice; but, unless such default be
the failure to pay the principal of, or premium, if any, or interest on any of
the Securities of such series when and as the same shall become payable, or to
make any sinking fund payment as to Securities of the same series, the Trustee
shall be protected in withholding such notice, if and so long as the board of
directors, the executive committee or a trust committee of directors or
Responsible Officers of the Trustee in good faith determine that the withholding
of such notice is in the interests of the holders of the Securities of such
series.
Section 7.03 Certain Rights of Trustee.
Except as otherwise provided in Section 7.01:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond, security or other paper
or document reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned herein
shall be sufficiently evidenced by a Board Resolution or an instrument signed in
the name of the Company, by the President or any Vice President and by the
Treasurer or an Assistant Treasurer, or the Controller or an Assistant
Controller, the Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer thereof (unless other evidence in respect thereof is
specifically prescribed herein);
(c) the Trustee may consult with counsel and the advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken or suffered or omitted hereunder in good faith
and in reliance thereon in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request, order or direction of
any of the Securityholders, pursuant to the provisions of this Indenture, unless
such Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities that may be incurred
therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted to be
taken by it in good faith and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Indenture;
36
(f) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, security, or
other papers or documents, unless requested in writing so to do by the holders
of not less than a majority in principal amount of the Outstanding Securities of
the particular series affected thereby (determined as provided in Section 8.04);
provided, however, that if the payment within a reasonable time to the Trustee
of the costs, expenses or liabilities likely to be incurred by it in the making
of such investigation is, in the opinion of the Trustee, not reasonably assured
to the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such costs, expenses or
liabilities as a condition to so proceeding. The reasonable expense of every
such examination shall be paid by the Company or, if paid by the Trustee, shall
be repaid by the Company upon demand; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
Section 7.04 Trustee Not Responsible for Recitals or Issuance or Securities.
(a) The recitals contained herein and in the Securities shall be taken as
the statements of the Company, and the Trustee assumes no responsibility for the
correctness of the same.
(b) The Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Securities.
(c) The Trustee shall not be accountable for the use or application by the
Company of any of the Securities or of the proceeds of such Securities, or for
the use or application of any moneys paid over by the Trustee in accordance with
any provision of this Indenture or established pursuant to Section 2.01, or for
the use or application of any moneys received by any paying agent other than the
Trustee.
Section 7.05 May Hold Securities.
The Trustee or any paying agent or Security Registrar, in its individual or
any other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not Trustee, paying agent or Security Registrar.
Section 7.06 Moneys Held in Trust.
Subject to the provisions of Section 12.05, all moneys received by the
Trustee shall, until used or applied as herein provided, be held in trust for
the purposes for which they were received, but need not be segregated from other
funds except to the extent required by law. The
37
Trustee shall be under no liability for interest on any moneys received by it
hereunder except such as it may agree with the Company to pay thereon.
Section 7.07 Compensation and Reimbursement.
(a) The Company covenants and agrees to pay to the Trustee, and the Trustee
shall be entitled to, such reasonable compensation as the Company and the
Trustee may from time to time agree in writing, for all services rendered by it
in the execution of the trusts hereby created and in the exercise and
performance of any of the powers and duties hereunder of the Trustee, and,
except as otherwise expressly provided herein, the Company will pay or reimburse
the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any of the
provisions of this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel) except any such expense, disbursement
or advance as may result from its negligence or bad faith. The Company also
covenants to indemnify the Trustee (and its officers, agents, directors and
employees) for, and to hold it harmless against, any loss, liability or expense
incurred without negligence, bad faith or willful misconduct on the part of the
Trustee and arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself against any claim of liability in the premises.
(b) The obligations of the Company under this Section to compensate and
indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder.
Such additional indebtedness shall be secured by a lien prior to that of the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the holders of particular
Securities.
(c) The provisions of this Section 7.07 shall survive the resignation or
removal of the Trustee and the termination of this Indenture.
Section 7.08 Reliance on Officers' Certificate.
Except as otherwise provided in Section 7.01, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or
suffering or omitting to take any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered to the
Trustee and such certificate, in the absence of negligence or bad faith on the
part of the Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted to be taken by it under the provisions of this Indenture
upon the faith thereof.
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Section 7.09 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire any "conflicting interest" within the
meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the
Company shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act, subject to the penultimate paragraph thereof.
Section 7.10 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee with respect to the Securities issued
hereunder which shall at all times be a corporation organized and doing business
under the laws of the United States of America or any State or Territory thereof
or of the District of Columbia, or a corporation or other Person permitted to
act as trustee by the Commission, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus together with that
of its parent of at least 50 million U.S. dollars ($50,000,000), and subject to
supervision or examination by Federal, State, Territorial, or District of
Columbia authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. The
Company may not, nor may any Person directly or indirectly controlling,
controlled by, or under common control with the Company, serve as Trustee. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 7.11.
Section 7.11 Resignation and Removal; Appointment of Successor.
(a) The Trustee or any successor hereafter appointed, may at any time
resign with respect to the Securities of one or more series by giving written
notice thereof to the Company. Upon receiving such notice of resignation, the
Company shall promptly appoint a successor trustee with respect to Securities of
such series by written instrument, in duplicate, executed by order of the Board
of Directors, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee. If no successor trustee shall
have been so appointed and shall have accepted such appointment within 30 days
after the mailing of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee with respect to Securities of such series, or any Securityholder of that
series who has been a bona fide holder of a Security or Securities for at least
six months may on behalf of himself and all others similarly situated, petition
any such court for the appointment of a successor trustee. Such court may
thereupon after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any one of the following shall occur:
39
(1) the Trustee shall fail to comply with the provisions of Section 7.09
after written request therefor by the Company or by any Securityholder
who has been a bona fide holder of a Security or Securities for at
least six months; or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 7.10 and shall fail to resign after written
request therefor by the Company or by any such Securityholder; or
(3) the Trustee shall become incapable of acting with respect to the
Securities, or shall be adjudged a bankrupt or insolvent, or commence
a voluntary bankruptcy proceeding, or a receiver of the Trustee or of
its property shall be appointed or consented to, or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation;
then, in any such case, the Company may remove the Trustee with respect to all
Securities and appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall
be delivered to the Trustee so removed and one copy to the successor trustee,
or, unless, in the case of a failure to comply with Section 7.09, the Trustee's
duty to resign is stayed as provided in the penultimate paragraph of Section
310(b) of the Trust Indenture Act, any Securityholder who has been a bona fide
holder of a Security or Securities for at least six months may, on behalf of
that holder and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
trustee. Such court may thereupon after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding may at any time remove the
Trustee with respect to such series by so notifying the Trustee and the Company
and may appoint a successor Trustee for such series with the consent of the
Company.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee with respect to the Securities of a series pursuant to any of
the provisions of this Section shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 7.12.
(e) Any successor trustee appointed pursuant to this Section may be
appointed with respect to the Securities of one or more series or all of such
series, and at any time there shall be only one Trustee with respect to the
Securities of any particular series.
Section 7.12 Acceptance of Appointment By Successor.
(a) In case of the appointment hereunder of a successor trustee with
respect to all Securities, every such successor trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such
40
successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
provided, on the request of the Company or the successor trustee, such retiring
--------
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor trustee all the rights, powers, and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor trustee 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 which:
(1) shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor trustee all
the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the
appointment of such successor trustee relates,
(2) shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such
Trustee and that no Trustee shall be responsible for any act or
failure to act on the part of any other Trustee hereunder; and upon
the execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become effective
to the extent provided therein, such retiring Trustee shall with
respect to the Securities of that or those series to which the
appointment of such successor trustee relates have no further
responsibility for the exercise of rights and powers or for the
performance of the duties and obligations vested in the Trustee under
this Indenture, and each such successor trustee, without any further
act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor trustee relates; but, on request of the Company or any
successor trustee, such retiring Trustee shall duly assign, transfer
and deliver to such successor trustee, to the extent contemplated by
such supplemental indenture, the property and money held by such
retiring Trustee hereunder with respect to the Securities of that or
those series to which the appointment of such successor trustee
relates.
41
(c) Upon request of any such successor trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) No successor trustee shall accept its appointment unless at the time of
such acceptance such successor trustee shall be qualified and eligible under
this Article.
(e) Upon acceptance of appointment by a successor trustee as provided in
this Section, the Company shall transmit notice of the succession of such
trustee hereunder by mail, first class postage prepaid, to the Securityholders,
as their names and addresses appear upon the Security Register. If the Company
fails to transmit such notice within ten days after acceptance of appointment by
the successor trustee, the successor trustee shall cause such notice to be
transmitted at the expense of the Company.
Section 7.13 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, provided that such corporation shall be
qualified under the provisions of Section 7.09 and eligible under the provisions
of Section 7.10, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding. In case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
Section 7.14 Preferential Collection of Claims Against the Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship described in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent included therein.
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
Section 8.01 Evidence of Action by Securityholders.
Whenever in this Indenture it is provided that the holders of a majority or
specified percentage in aggregate principal amount of the Securities of a
particular series may take any
42
action (including the making of any demand or request, the giving of any notice,
consent or waiver or the taking of any other action), the fact that at the time
of taking any such action the holders of such majority or specified percentage
of that series have joined therein may be evidenced by any instrument or any
number of instruments of similar tenor executed by such holders of Securities of
that series in Person or by agent or proxy appointed in writing. If the Company
shall solicit from the Securityholders of any series any request, demand,
authorization, direction, notice, consent, waiver or other action, the Company
may, at its option, as evidenced by an Officers' Certificate, fix in advance a
record date for such series for the determination of Securityholders entitled to
give such request, demand, authorization, direction, notice, consent, waiver or
other action, but the Company shall have no obligation to do so. If such a
record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other action may be given before or after the record date,
but only the Securityholders of record at the close of business on the record
date shall be deemed to be Securityholders for the purposes of determining
whether Securityholders of the requisite proportion of Outstanding Securities of
that series have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action, and for that
purpose the Outstanding Securities of that series shall be computed as of the
record date; provided, however, that no such authorization, agreement or consent
-------- -------
by such Securityholders on the record date shall be deemed effective unless it
shall become effective pursuant to the provisions of this Indenture not later
than six months after the record date.
Section 8.02 Proof of Execution by Securityholders.
Subject to the provisions of Section 7.01, proof of the execution of any
instrument by a Securityholder (such proof will not require notarization) or his
agent or proxy and proof of the holding by any Person of any of the Securities
shall be sufficient if made in the following manner:
(a) The fact and date of the execution by any such Person of any
instrument may be proved in any reasonable manner acceptable to the
Trustee;
(b) The ownership of Securities shall be proved by the Security Register
of such Securities or by a certificate of the Security Registrar
thereof; and
(c) The Trustee may require such additional proof of any matter referred
to in this Section as it shall deem necessary.
Section 8.03 Who May be Deemed Owners.
Prior to the due presentment for registration of transfer of any Security,
the Company, the Trustee, any paying agent and any Security Registrar may deem
and treat the Person in whose name such Security shall be registered upon the
books of the Company as the absolute owner of such Security (whether or not such
Security shall be overdue and notwithstanding any notice of ownership or writing
thereon made by anyone other than the Security Registrar) for the purpose
43
of receiving payment of or on account of the principal of (and premium, if any)
and (subject to Section 2.03) interest on such Security and for all other
purposes; and neither the Company nor the Trustee nor any paying agent nor any
Security Registrar shall be affected by any notice to the contrary.
Section 8.04 Certain Securities Owned by Company Disregarded.
In determining whether the holders of the requisite aggregate principal
amount of Securities of a particular series have concurred in any direction,
consent of waiver under this Indenture, the Securities of that series that are
owned by the Company or any other obligor on the Securities of that series or by
any Person directly or indirectly controlling or controlled by or under common
control with the Company or any other obligor on the Securities of that series
shall be disregarded and deemed not to be Outstanding for the purpose of any
such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver,
only Securities of such series that the Trustee actually knows are so owned
shall be so disregarded. The Securities so owned that have been pledged in good
faith may be regarded as Outstanding for the purposes of this Section, if the
pledgee shall establish to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is not a Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company or any such other obligor. In case of a dispute
as to such right, any decision by the Trustee taken upon the advice of counsel
shall be full protection to the Trustee.
Section 8.05 Actions Binding on Future Securityholders.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.01, of the taking of any action by the holders of the
majority or percentage in aggregate principal amount of the Securities of a
particular series specified in this Indenture in connection with such action,
any holder of a Security of that series that is shown by the evidence to be
included in the Securities the holders of which have consented to such action
may, by filing written notice with the Trustee, and upon proof of holding as
provided in Section 8.02, revoke such action so far as concerns such Security.
Except as aforesaid any such action taken by the holder of any Security shall be
conclusive and binding upon such holder and upon all future holders and owners
of such Security, and of any Security issued in exchange therefor, on
registration of transfer thereof or in place thereof, irrespective of whether or
not any notation in regard thereto is made upon such Security. Any action taken
by the holders of the majority or percentage in aggregate principal amount of
the Securities of a particular series specified in this Indenture in connection
with such action shall be conclusively binding upon the Company, the Trustee and
the holders of all the Securities of that series.
44
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without the Consent of Securityholders.
(a) In addition to any supplemental indenture otherwise authorized by this
Indenture, the Company, the Guarantor Subsidiaries and the Trustee may from time
to time and at any time enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act as then
in effect), without the consent of the Securityholders, for one or more of the
following purposes:
(1) to cure any ambiguity, defect, or inconsistency or to correct or
supplement any provision contained herein or in any supplemental
indenture which may be defective or inconsistent with any other
provision contained herein or in any supplemental indenture; or to
make such other provisions in regard to matters or questions arising
under this Indenture or under any supplemental indenture as the Board
of Directors may deem necessary or desirable and which shall not
materially adversely affect the interests of the Holders of the
Securities;
(2) to evidence the succession of another corporation to the Company or
any Guarantor Subsidiary, or successive successions and the assumption
by the successor entity of the covenants, agreements and obligations
of the Company pursuant to Article X and of a Guarantor Subsidiary
pursuant to Article Eleventh, as permitted hereunder;
(3) to provide for uncertificated Securities in addition to or in place of
certificated Securities;
(4) to add to the covenants of the Company for the benefit of the holders
of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit of
such series) or to surrender any right or power herein conferred upon
the Company or to add any additional Events of Default for the benefit
of the holders of all series of Securities;
(5) to add to, delete from, or revise the conditions, limitations, and
restrictions on the authorized amount, terms, or purposes of issue,
authentication, and delivery of Securities (prior to the issuance
thereof), as herein set forth;
(6) to make any change that does not materially adversely affect the
rights of any Securityholder;
(7) to provide for the issuance of and establish the form and terms and
conditions of the Securities of any series prior to the issuance of
such Securities as provided in Section 2.01, to establish the form of
any certifications required to be furnished
45
pursuant to the terms of this Indenture or any series of Securities,
or to add to the rights of the holders of any series of Securities;
(8) to secure the Securities pursuant to the requirements of Sections 4.05
or 10.03;
(9) to change or eliminate any of the provisions of this Indenture;
provided that any such change or elimination shall become effective
--------
only when there is no Security of any series Outstanding created prior
to the execution of such supplemental indenture which is entitled to
the benefit of such provision;
(10) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 7.12;
(11) to allow any Guarantor Subsidiary to execute a supplemental indenture
in respect of a Subsidiary Guarantee;.
(12) to provide for the release of a Guarantor Subsidiary in respect of a
Subsidiary Guarantee pursuant to Article XI; and (13) to comply with
requirements of the Commission in order to effect or maintain the
qualification of this Indenture under the Trust Indenture Act.
The Trustee is hereby authorized to join with the Company in the execution of
any such supplemental indenture, and to make any further appropriate agreements
and stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into any such supplemental indenture that affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
(b) Any supplemental indenture authorized by the provisions of this Section
may be executed by the Company and the Trustee without the consent of the
holders of any of the Securities at the time Outstanding, notwithstanding any of
the provisions of Section 9.02.
Section 9.02 Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Section 8.01) of the holders of
not less than a majority in aggregate principal amount of the Securities of each
series affected by such supplemental indenture or indentures at the time
Outstanding (including consents obtained in connection with a tender offer or
exchange offer for the Securities), the Company, when authorized by resolution
of its Board of Directors, and the Trustee may from time to time and at any time
enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as then in effect) for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any
46
supplemental indenture or of modifying in any manner not covered by Section 9.01
the rights of the holders of the Securities of such series under this Indenture
or releasing any Guarantor Subsidiary from any of its obligations under its
Subsidiary Guarantee or otherwise under this Indenture except in accordance with
the terms of this Indenture; provided, however, that no such supplemental
-------- ------
indenture shall, without the consent of the holders of each Security then
Outstanding and affected thereby:
(1) extend the maturity of the principal of, or any installment of
principal of or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon, or any premium payable upon the
redemption thereof, or extend the time of payment of interest, or reduce
the amount of the principal of an Original Issue Discount Security or any
other Security which would be due and payable upon a declaration of
acceleration of the maturity thereof pursuant to Section 6.01, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose holders is required for any
such supplemental indenture, or the consent of whose holders is required
for any waiver of certain defaults hereunder and their consequences
provided for in this Indenture.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the holders of 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 Securityholders of any series affected thereby
under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Section 9.03 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture pursuant to the provisions
of this Article or of Section 10.01, this Indenture shall, with respect to any
such series affected thereby, be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the holders of Securities of the series affected thereby shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
Section 9.04 Securities Affected by Supplemental Indentures.
Securities of any series affected by a supplemental indenture,
authenticated and delivered after the execution of such supplemental indenture
pursuant to the provisions of this Article or of Section 10.01, may bear a
notation in form approved by the Company, provided such form meets
47
the requirements of any exchange upon which such series may be listed, as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of that series so modified as to conform, in the
opinion of the Board of Directors of the Company, to any modification of this
Indenture contained in any such supplemental indenture may be prepared by the
Company, authenticated by the Trustee and delivered in exchange for the
Securities of that series then Outstanding.
Section 9.05 Execution of Supplemental Indentures.
(a) Upon the request of the Company, accompanied by its Board Resolutions
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders, if
required to consent thereto as aforesaid, the Trustee shall join with the
Company in the execution of such supplemental indenture unless such supplemental
indenture affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such supplemental indenture. The Trustee,
subject to the provisions of Section 7.01, may receive an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant to this
Article is authorized or permitted by, and conforms to, the terms of this
Article and that it is proper for the Trustee under the provisions of this
Article to join in the execution thereof; provided, however, that such Opinion
-------- -------
of Counsel need not be provided in connection with the execution of a
supplemental indenture that establishes the terms of a series of Securities
pursuant to Section 2.01 hereof.
(b) Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall transmit by mail, first class postage prepaid, a notice, setting forth in
general terms the substance of such supplemental indenture, to the
Securityholders of all series affected thereby as their names and addresses
appear upon the Security Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
ARTICLE X
SUCCESSOR ENTITY
Section 10.01 Company May Consolidate, Etc.
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Company with or into any other Person
(whether or not affiliated with the Company) or successive consolidations or
mergers in which the Company or its successor or successors shall be a party or
parties, or shall prevent any sale, conveyance, lease, transfer or other
disposition of the property of the Company or its successor or successors as an
entirety, to any other Person (whether or not affiliated with the Company or its
successor or successors) authorized to acquire and operate the same; provided,
--------
however, the Company hereby covenants and agrees that, upon any such
-------
consolidation or merger (in each case, if the Company
48
is not the survivor of such transaction), sale, conveyance, lease, transfer or
other disposition, the due and punctual payment of the principal of (and
premium, if any) and interest on all of the Securities of all series in
accordance with the terms of each series, according to their tenor and the due
and punctual performance and observance of all the covenants and conditions of
this Indenture or established with respect to each series of Securities pursuant
to Section 2.01 to be kept or performed by the Company shall be expressly
assumed, by supplemental indenture (which shall conform to the provisions of the
Trust Indenture Act, as then in effect) satisfactory in form to the Trustee,
executed and delivered to the Trustee by the entity formed by such
consolidation, or into which the Company shall have been merged, or by the
entity which shall have acquired such property.
Section 10.02 Successor Entity Substituted.
(a) In case of any such consolidation, merger, sale, conveyance, lease,
transfer or other disposition and upon the assumption by the successor entity by
supplemental indenture, executed and delivered to the Trustee and satisfactory
in form to the Trustee, of the due and punctual payment of the principal of (and
premium, if any) and interest on all of the Securities of all series Outstanding
and the due and punctual performance of all of the covenants and conditions of
this Indenture or established with respect to each series of the Securities
pursuant to Section 2.01 to be performed by the Company, such successor entity
shall succeed to and be substituted for the Company with the same effect as if
it had been named as the Company herein, and thereupon the predecessor entity
shall be relieved of all obligations and covenants under this Indenture and the
Securities.
(b) In case of any such consolidation, merger, sale, conveyance, lease,
transfer or other disposition, such changes in phraseology and form (but not in
substance) may be made in the Securities thereafter to be issued as may be
appropriate to reflect the assumption by the successor entity of its obligations
hereunder and thereunder.
(c) Nothing contained in this Article shall require any action by the
Company in the case of a consolidation or merger of any Person into the Company
where the Company is the survivor of such transaction, or the acquisition by the
Company, by purchase or otherwise, of all or any part of the property of any
other Person (whether or not affiliated with the Company).
Section 10.03 Securing of Assets Upon Consolidation, Etc.
If, as a result of any consolidation, merger, sale, conveyance, lease,
transfer or other disposition subject to this Article X, the properties or
assets of the Company would become subject to any Lien which would not be
permitted pursuant to Section 4.05 without equally and ratably securing the
Securities, the Company, or such successor Person, as the case may be, will
secure the Securities equally and ratably with, or prior to, all indebtedness
secured by those Liens.
49
Section 10.04 Evidence of Consolidation, Etc. to Trustee.
The Trustee, subject to the provisions of Section 7.01, may require an
Opinion of Counsel as evidence that any such consolidation, merger, sale,
conveyance, lease, transfer or other disposition, and any such assumption,
complies with the provisions of this Article.
ARTICLE XI
SUBSIDIARY GUARANTEES
Section 11.01 Guarantee.
(a) Subject to this Article XI, each Guarantor Subsidiary hereby agrees,
jointly and severally, to fully and unconditionally guarantee to each Holder of
a Security of the series authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, irrespective of the validity and
enforceability of this Indenture, such Security or the Obligations of the
Company hereunder or thereunder, that: (a) the principal and premium, if any, of
and interest, if any, on such Securities will be promptly paid in full when due,
whether at maturity, by acceleration, redemption, repurchase or otherwise, and
interest on the overdue principal and premium, if any, of and interest, if any,
on the Securities, if any, if lawful, and all other Obligations of the Company
to the Holders or the Trustee hereunder or thereunder will be promptly paid in
full or performed, all in accordance with the terms hereof and thereof; and (b)
in case of any extension of time of payment or renewal of any such Securities or
any of such other Obligations, that same will be promptly paid in full when due
or performed in accordance with the terms of the extension or renewal, whether
at stated maturity, by acceleration or otherwise. Failing payment when due of
any amount so guaranteed or any performance so guaranteed for whatever reason,
each Guarantor Subsidiary shall be jointly and severally obligated to pay the
same immediately. Each Guarantor Subsidiary agrees that this is a guarantee of
payment and not a guarantee of collection.
(b) Each Guarantor Subsidiary hereby agrees that its Obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Securities or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Securities with
respect to any provisions hereof or thereof, the recovery of any judgment
against the Company, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
Guarantor Subsidiary. Each Guarantor Subsidiary hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, and any right to require a proceeding
first against the Company, protest, notice and all demands whatsoever and
covenants that this Subsidiary Guarantee shall not be discharged except by
complete performance of the Obligations contained in the Securities and this
Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise to
return to the Company, the Guarantors or any Custodian, Trustee, liquidator or
other similar official acting in relation to either the Company or the Guarantor
Subsidiaries, any amount paid by either to the
50
Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect.
(d) Each Guarantor Subsidiary agrees that it shall not be entitled to any
right of subrogation in relation to the Holders in respect of any Obligations
guaranteed hereby until payment in full of all Obligations guaranteed hereby.
Each Guarantor Subsidiary further agrees that, as between the Guarantor
Subsidiaries, on the one hand, and the Holders and the Trustee, on the other
hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated
as provided in Article VI for the purposes of this Subsidiary Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Obligations guaranteed hereby, and (y) in the
event of any declaration of acceleration of such Obligations as provided in
Article VI, such Obligations (whether or not due and payable) shall forthwith
become due and payable by the Guarantor Subsidiary for the purpose of this
Subsidiary Guarantee (subject to any subsequent rescission or cancellation of
any acceleration in accordance with Section 6.01(c)). The Guarantor Subsidiary
shall have the right to seek contribution from any non-paying Guarantor
Subsidiary so long as the exercise of such right does not impair the rights of
the Holders under the Subsidiary Guarantee.
Section 11.02 Limitation on Guarantor Subsidiary Liability.
Each Guarantor Subsidiary, and by its acceptance of the Securities of the
series, each Holder, hereby confirms that it is the intention of all such
parties that the Subsidiary Guarantee of such Guarantor Subsidiary not
constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law,
the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or
any similar federal or state law to the extent applicable to any Subsidiary
Guarantee. In the event any Subsidiary Guarantee would constitute or result in a
violation of any applicable fraudulent conveyance or similar law of any relevant
jurisdiction, the liability of the Guarantor Subsidiary under the Subsidiary
Guarantee would be reduced to the maximum amount, after giving effect to all
other contingent and other liabilities of that Guarantor Subsidiary, permissible
under the applicable fraudulent conveyance or similar law. If any Guarantor
Subsidiary makes payment under its Subsidiary Guarantee, that Guarantor
Subsidiary will be entitled to a contribution from the Company and each other
Guarantor Subsidiary in a pro rata amount based on the respective net worth of
the Company and each Guarantor Subsidiary at the time of that payment.
Section 11.03 Delivery of Subsidiary Guarantee.
Each Guarantor Subsidiary hereby agrees that its Subsidiary Guarantee set
forth in Section 11.01 shall remain in full force and effect notwithstanding any
failure to endorse on each Security a notation of such Subsidiary Guarantee. If
an Officer whose signature is on this Indenture no longer holds that office at
the time the Trustee authenticates the Securities on which a Subsidiary
Guarantee is endorsed, the Subsidiary Guarantee shall be valid nevertheless. The
delivery of the Securities of any series by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Subsidiary Guarantee set forth in this Indenture on behalf of
51
the Subsidiary. In the event that the Company creates or acquires any new
Subsidiaries subsequent to the date of this Indenture, if required by Section
4.07 hereof, the Company shall cause such Subsidiaries to provide Subsidiary
Guarantees by executing supplemental indentures to this Indenture in accordance
with Section 4.07 and this Article XI, to the extent applicable.
Section 11.04 Guarantor Subsidiaries may Consolidate, etc., on Certain Terms.
(a) Unless a Guarantor Subsidiary is released from its Subsidiary Guarantee
as provided in Section 11.05, no Guarantor Subsidiary may (i) consolidate or
merge with or into (whether or not such Guarantor Subsidiary is the surviving
Person) another Person or (ii) sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its properties or assets to
another Person unless:
(1) the Person formed by or surviving any such consolidation or merger (if
other than a Guarantor Subsidiary or the Company) or the Person acquiring the
property or assets in any such sale, assignment, transfer, lease, conveyance or
other disposition unconditionally assumes all the Obligations of such Guarantor
Subsidiary under this Indenture, pursuant to a supplemental indenture in form
and substance reasonably satisfactory to the Trustee, on the terms set forth
herein or therein; and
(2) immediately after giving effect to such transaction, no Default or
Event of Default exists.
(b) In case of any such consolidation, merger, sale, assignment, transfer,
lease, or conveyance or other disposition and upon the assumption by the
successor Person, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the Subsidiary Guarantee,
such successor Person shall succeed to and be substituted for the Guarantor
Subsidiary with the same effect as if it had been named herein as a Guarantor
Subsidiary. All the Subsidiary Guarantees so issued shall in all respects have
the same legal rank and benefit under this Indenture as the Subsidiary
Guarantees theretofore and thereafter issued in accordance with the terms of
this Indenture as though all of such Subsidiary Guarantees had been issued at
the date of the execution hereof.
(c) Notwithstanding Section 11.04(a), nothing contained in this Indenture
or in any of the Securities shall prevent any consolidation or merger of a
Guarantor Subsidiary with or into the Company or another Guarantor Subsidiary,
or shall prevent any sale, assignment, transfer, lease, conveyance or other
disposition of all or substantially all of the property or assets of a Guarantor
Subsidiary to the Company or another Guarantor Subsidiary.
Section 11.05 Releases of Subsidiary Guarantee.
(a) Any Guarantor Subsidiary not released from its Obligations under its
Subsidiary Guarantee shall remain liable for the full amount of principal of and
premium, if any, interest on the Securities and for the other obligations of any
Guarantor Subsidiary under this Indenture as provided in this Article XI.
52
(b) At any time any Guarantor Subsidiary has neither any Guarantees nor any
Indebtedness outstanding, such Guarantor Subsidiary will be released, at the
option of the Company, from all its obligations under its Subsidiary Guarantee.
(c) Upon delivery by the Company to the Trustee of an Officer's Certificate
and an Opinion of Counsel to the effect that such release would be in accordance
with the provisions of this Indenture, the Trustee shall execute any documents
reasonably required in order to evidence the release of any Guarantor Subsidiary
from its obligations under its Subsidiary Guarantee.
ARTICLE XII
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 12.01 Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of further effect
with respect to a series of Securities (except as to any surviving rights of
registration of transfer or exchange of such series of Securities herein
expressly provided for and except for the provisions of this Article XII), and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to such
series, when:
(1) either (A) all Securities of that series theretofore authenticated and
delivered (other than (i) any Securities that shall have been
destroyed, lost or stolen and that shall have been replaced or paid as
provided in Section 2.07 and (ii) Securities for whose payment money
or noncallable Governmental Obligations have theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as
provided in Section 12.05) have been delivered to the Trustee for
cancellation; or (B) all Securities of such series not theretofore
delivered to the Trustee for cancellation (i) have become due and
payable, or (ii) will by their terms become due and payable within one
year, or (iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption, and the Company shall deposit or cause to be deposited
with the Trustee as trust funds in trust for the purpose (x) moneys in
an amount, or (y) noncallable Governmental Obligations the scheduled
principal of and interest on which in accordance with their terms will
provide, not later than the due date of any payment, money in an
amount, or (z) a combination thereof, sufficient, in the case of (y)
or (z), 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, at maturity or upon
redemption, all Securities of that series not theretofore delivered to
the Trustee for cancellation, including principal (and premium, if
any) and interest due or to become due to such date of maturity or
date fixed for redemption, as the case may be, except that the
provisions of Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.09, 2.10, 2.11,
4.02, 4.03,
53
4.04, 5.01, 7.06, 7.11, 10.01, 10.02 and 10.03 shall survive until the
Securities have been paid in full;
(2) the Company has paid or caused to be paid all other sums payable
hereunder with respect to such series by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all the conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture with respect to such series of Securities have been complied
with.
Notwithstanding the satisfaction and discharge or defeasance of this Indenture
with respect to a series of Securities, the obligations of the Company to the
Trustee under Section 7.07 and, if money shall have been deposited with the
Trustee pursuant to subclause (y) of clause (1) of this Section, the obligations
of the Trustee under Sections 12.03 and 12.05 shall survive. Upon the Company's
exercise of this Section 12.01, the Trustee, on demand of the Company and at the
cost and expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture with respect to such series.
Section 12.02 Defeasance.
(a) In addition to the discharge of this Indenture pursuant to Section
12.01, if this Section is specified, as contemplated by Section 2.01 to be
applicable to Securities of any series, the Company may, at its option and at
any time (including notwithstanding the exercise by the Company of a Covenant
Defeasance (as defined herein)), elect to have its obligations discharged with
respect to a series of the Securities ("Legal Defeasance"). Such Legal
Defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by such series of Securities, except that
the provisions of Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.09, 2.10, 2.11, 4.02,
4.03, 4.04, 5.01, 7.06, 7.11, 10.01, 10.02, and 10.03 shall survive until the
Securities have been paid in full. In addition, the Company may, at its option
and at any time, elect to have the obligations of the Company released with
respect to covenants provided with respect to such series of Securities under
Sections 4.05, 4.06 and 10.03 of this Indenture ("Covenant Defeasance") and
thereafter any omission to comply with such obligations shall not constitute a
Default or Event of Default with respect to such series of Securities. In the
event of Covenant Defeasance, those events described under Section 6.01(a) with
respect to the covenants identified in the foregoing sentence will no longer
constitute an Event of Default with respect to such series of Securities.
(b) In order to exercise either Legal Defeasance or Covenant Defeasance:
(1) the Company must irrevocably deposit with the Trustee, in trust, for
the benefit of the holders of such series, (A) moneys in an amount, or
(B) noncallable Governmental Obligations the scheduled principal of
and interest on which in accordance with their terms will provide, not
later than the due date of any payment, money in an amount, or (C) a
combination thereof, sufficient, in the
54
case of (B) or (C), 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, at maturity or
upon redemption, the principal of (and premium, if any) and interest
on such series of Securities on the stated date for payment thereof or
on the applicable redemption date, as the case may be, and all other
sums owed by the Company hereunder or under the Securities with
respect to such series;
(2) in the case of Legal Defeasance, the Company shall have delivered to
the Trustee an Opinion of Counsel confirming that (A) the Company has
received from, or there has been published by, the Internal Revenue
Service a ruling, or (B) since the date of this Indenture, there has
been a change in the applicable federal income tax law, in either case
to the effect that, and based thereon, such Opinion of Counsel shall
confirm that, the holders of such series of Securities will not
recognize income, gain or loss for federal income tax purposes as a
result of such deposit and Legal Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such deposit and Legal
Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Company shall have delivered
to the Trustee an Opinion of Counsel confirming that the holders of
such series of Securities will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and Covenant
Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such deposit and Covenant Defeasance had not occurred;
(4) 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 insofar as Events of Default under clauses (5) and (6) of
Section 6.01(a) or any event which with the giving of notice or lapse
of time, or both, would become such an Event of Default under clauses
(5) or (6) of Section 6.01(a) are concerned, at any time in the period
ending on the 91st day after the date of deposit or, if longer, ending
on the day following the expiration of the longest preference period
applicable to the Company in respect of such deposit;
(5) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for or relating to the Legal Defeasance
or the Covenant Defeasance, as the case may be, have been complied
with;
(6) if such series of Securities are to be redeemed prior to final
maturity (other than from mandatory sinking fund payments or analogous
payments), notice of such redemption shall have been duly given
pursuant to this Indenture or provision therefor satisfactory to the
Trustee shall have been made; and
55
(7) such deposit and defeasance will not result in a breach or violation
of, or constitute a defect under, this Indenture or any other
agreement or instrument to which the Company or any Guarantor
Subsidiary is bound.
Section 12.03 Deposited Moneys to be Held in Trust.
All moneys or Governmental Obligations deposited with the Trustee pursuant
to Sections 12.01 or 12.02 shall be held in trust and shall be available for
payment as due, either directly or through any paying agent (including the
Company acting as its own paying agent), to the holders of the particular series
of Securities for the payment or redemption of which such moneys or Governmental
Obligations have been deposited with the Trustee.
Section 12.04 Payment of Moneys Held by Paying Agents.
In connection with the satisfaction and discharge of this Indenture, all
moneys or Governmental Obligations then held by any paying agent under the
provisions of this Indenture shall, upon demand of the Company, be paid to the
Trustee and thereupon such paying agent shall be released from all further
liability with respect to such moneys or Governmental Obligations.
Section 12.05 Repayment to Company.
Any moneys or Governmental Obligations deposited with any paying agent or
the Trustee, or then held by the Company, in trust for payment of principal of
(or premium, if any) or interest on the Securities of a particular series that
are not applied but remain unclaimed by the holders of such Securities for at
least two years (or such shorter period of time specified in the relevant
abandoned property laws for return of such monies to the Company) after the date
upon which the principal of (and premium, if any) or interest on such Securities
shall have respectively become due and payable, shall be repaid to the Company
on May 31 of each year or (if then held by the Company) shall be discharged from
such trust; and thereupon the paying agent and the Trustee shall be released
from all further liability with respect to such moneys or Governmental
Obligations, and the holder of any of the Securities entitled to receive such
payment shall thereafter, as an unsecured general creditor, look only to the
Company for the payment thereof.
Section 12.06 Reinstatement.
If the Trustee or the paying agent is unable to apply any money in
accordance with either Section 12.01 or 12.02 by reason of any order or judgment
of any court or governmental authority enjoining, restraining, or otherwise
prohibiting such application, then the Company's obligations under the
Securities to be defeased shall be revived and reinstated as though no deposit
had occurred pursuant to this Article XII until such time as the Trustee or
paying agent is permitted to apply all such money in accordance with Section
12.01 or 12.02; provided, however, that if the Company makes any payment of
-------- -------
principal of (and premium, if any) or
56
interest on any such Securities following the reinstatement of its obligations,
the Company shall be subrogated to the rights of the holders of such Securities
to receive such payment from the money held by the Trustee or paying agent.
Section 12.07 Other Coin or Currency Units.
Notwithstanding the foregoing provisions of this Article XII, if the
Securities of any series are payable in a coin or currency or currency unit
other than such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public or private debts, the coin or
currency or currency unit or the nature of the government obligations to be
deposited with the Trustee under the foregoing provisions of this Article XII
shall be set forth in the Officers' Certificate or established in the
supplemental indenture under which the Securities of such series are issued.
ARTICLE XIII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 13.01 No Recourse.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Security, or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator, stockholder, officer or
director, past, present or future as such, of the Company, any Guarantor
Subsidiary, or of any predecessor or successor corporation, either directly or
through the Company, any Guarantor Subsidiary, or any such predecessor or
successor corporation, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that this Indenture and the obligations issued hereunder
are solely corporate obligations, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, the incorporators, stockholders,
officers or directors as such, of the Company, any Guarantor Subsidiary, or of
any predecessor or successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, stockholder, officer or director as such, because of
the creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or implied therefrom, are hereby expressly waived and released as
a condition of, and as a consideration for, the execution of this Indenture and
the issuance of such Securities.
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ARTICLE XIV
MISCELLANEOUS PROVISIONS
Section 14.01 Effect on Successors and Assigns.
All the covenants, stipulations, promises and agreements in this Indenture
and in the Securities of the Company, the Trustee and each Guarantor Subsidiary
shall bind their successors and any permitted assigns under Article VII, Article
X or Section 11.04, whether so expressed or not.
Section 14.02 Actions by Successor.
Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
Company shall and may be done and performed with like force and effect by the
corresponding board, committee or officer of any corporation that shall at the
time be the lawful successor of the Company.
Section 14.03 Surrender of Company Powers.
The Company by instrument in writing executed by authority of its Board of
Directors and delivered to the Trustee may surrender any of the powers reserved
to the Company, and thereupon such power so surrendered shall terminate both as
to the Company and as to any successor corporation.
Section 14.04 Notices.
Except as otherwise expressly provided herein any notice or demand that by
any provision of this Indenture is required or permitted to be given or served
by the Trustee or by the holders of Securities to or on the Company or any
Guarantor Subsidiary may be given or served by being deposited first class
postage prepaid in a post-office letterbox addressed (until another address is
filed in writing by the Company with the Trustee), as follows: CONSOL Energy
Inc., 0000 Xxxxxxxxxx Xxxx, Xxxxxxxxxx, XX 00000, Attention: General Counsel.
Any notice, election, request or demand by the Company or any Securityholder to
or upon the Trustee shall be deemed to have been sufficiently given or made, for
all purposes, if given or made in writing at the Corporate Trust Office of the
Trustee. Any notice, election, request or demand by the Company, any Guarantor
Subsidiary or any Securityholder to or upon the Trustee shall be deemed to have
been sufficiently given or made, for all purposes, if given or made in writing
at the Corporate Trust Office of the Trustee. Any notice to be given to any
Securityholder shall be given to each Securityholder by being deposited first
class postage prepaid in a post-office letterbox addressed to his or her address
as it appears in the Security Register and shall be sufficiently given if so
mailed within the time prescribed herein. 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 a notice or communication
is mailed in the manner provided above, it is duly given, whether or not the
addressee receives it.
58
Section 14.05 Governing Law.
This Indenture and each Security shall be deemed to be a contract made
under the internal laws of the State of New York, and for all purposes shall be
construed in accordance with the laws of said State.
Section 14.06 Treatment of Securities as Debt.
It is intended that the Securities will be treated as indebtedness and not
as equity for federal income tax purposes. The provisions of this Indenture
shall be interpreted to further this intention.
Section 14.07 Compliance Certificates and Opinions.
(a) Upon any application or demand by the Company to the Trustee to take
any action under any of the provisions of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent have been complied with, except that in
the case of any such application or demand as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating
to such particular application or demand, no additional certificate or opinion
need be furnished.
(b) Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
in this Indenture shall include:
(1) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him 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.
(c) Any certificate, statement or opinion of any officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the certificate
or opinion or representations with respect
59
to the matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
(d) Any certificate, statement or opinion of counsel may be based, insofar
as it relates to factual matters or information with respect to which is in the
possession of the Company, upon the certificate, statement or opinion of or
representations by an officer of officers of the Company, unless such counsel
knows that the certificate, statement or opinion or representations with respect
to the matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
(e) Any certificate, statement or opinion of an officer of the Company or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such officer or counsel, as the
case may be, knows that the certificate or opinion of or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Section 14.08 Payments on Business Days.
Except as provided pursuant to Section 2.01 pursuant to a Board Resolution,
and as set forth in an Officers' Certificate, or established in one or more
indentures supplemental to this Indenture, in any case where the date of
maturity of interest or principal of any Security or the date of redemption of
any Security shall not be a Business Day, then payment of interest or principal
(and premium, if any) may be made on the next succeeding Business Day with the
same force and effect as if made on the nominal date of maturity or redemption,
and no additional interest shall accrue for the period after such nominal date
in connection with such payment being made on such date.
Section 14.09 Conflict with Trust Indenture Act.
If and to the extent that any provision of this Indenture limits, qualifies
or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the
Trust Indenture Act, such imposed duties shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act which
may be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may be.
Section 14.10 Effects of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
60
Section 14.11 Counterparts.
This Indenture may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together constitute but one
and the same instrument.
Section 14.12 Separability.
In case any one or more of the provisions contained in this Indenture or in
the Securities of any series shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Indenture or of such Securities,
but this Indenture and such Securities shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein or therein.
Section 14.13 Assignment.
The Company will have the right at all times to assign any of its rights or
obligations under this Indenture to a direct or indirect wholly-owned Subsidiary
of the Company, provided that, in the event of any such assignment, the Company
and any of its successors, will remain liable for all such obligations. This
Indenture may not otherwise be assigned by the Company or by any Guarantor
Subsidiary, except as provided under Article X.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed all as of the day and year first above written.
CONSOL ENERGY INC.
By:
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President and Chief
Financial Officer
Each of the Guarantor Subsidiaries listed on
Schedule I hereto,
--------------------------------------------
Name of Guarantor Subsidiary
By:
-----------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA TRUST
COMPANY OF NEW YORK, as Trustee
By:
-----------------------------------------
Name:
Title:
62
SCHEDULE I
----------
GUARANTOR SUBSIDIARIES
----------------------
Conrhein Coal Company, a Pennsylvania general partnership
CONSOL Financial Inc.,a Delaware corporation
CONSOL of Kentucky, a Delaware corporation
CONSOL Pennsylvania Coal Company, a Delaware corporation
Consolidation Coal Company, a Delaware corporation
Consolidation Coal Sales Company, a Delaware corporation
Eighty-Four Mining Company, a Pennsylvania corporation
Fairmont Supply Company, a Delaware corporation
IC Coal Inc., a Delaware corporation
Island Creek Coal Company, a Delaware corporation
XxXxxxx Coal Company, a Delaware corporation
Rochester & Pittsburgh Coal Company, a Pennsylvania corporation
