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EXHIBIT 4.10
SEITEL, INC.,
AS ISSUER,
and
THE FIRST NATIONAL BANK OF CHICAGO,
AS TRUSTEE
---------------------------
INDENTURE
Dated as of , 1999
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DEBT SECURITIES
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE......................................................1
Section 1.01 Definitions..............................................................................1
Section 1.02 Other Definitions........................................................................5
Section 1.03 Incorporation by Reference of Trust Indenture Act........................................6
Section 1.04 Rules of Construction....................................................................6
ARTICLE II THE SECURITIES..................................................................................7
Section 2.01 Amount Unlimited; Issuable in Series.....................................................7
Section 2.02 Denominations............................................................................9
Section 2.03 Forms Generally..........................................................................9
Section 2.04 Execution, Authentication, Delivery and Dating..........................................10
Section 2.05 Registrar and Paying Agent..............................................................12
Section 2.06 Paying Agent to Hold Money in Trust.....................................................12
Section 2.07 Holder Lists............................................................................13
Section 2.08 Transfer and Exchange...................................................................13
Section 2.09 Replacement Securities..................................................................14
Section 2.10 Outstanding Securities..................................................................14
Section 2.11 Original Issue Discount and Treasury Securities.........................................14
Section 2.12 Temporary Securities....................................................................15
Section 2.13 Cancellation............................................................................15
Section 2.14 Payments; Defaulted Interest............................................................15
Section 2.15 Persons Deemed Owners...................................................................16
Section 2.16 Computation of Interest.................................................................16
Section 2.17 Global Securities; Book-Entry Provisions................................................16
ARTICLE III REDEMPTION.....................................................................................18
Section 3.01 Applicability of Article................................................................18
Section 3.02 Notice to the Trustee...................................................................18
Section 3.03 Selection of Securities To Be Redeemed..................................................18
Section 3.04 Notice of Redemption....................................................................19
Section 3.05 Effect of Notice of Redemption..........................................................20
Section 3.06 Deposit of Redemption Price.............................................................20
Section 3.07 Securities Redeemed or Purchased in Part................................................21
Section 3.08 Purchase of Securities..................................................................21
Section 3.09 Mandatory and Optional Sinking Funds....................................................21
Section 3.10 Satisfaction of Sinking Fund Payments with Securities...................................21
Section 3.11 Redemption of Securities for Sinking Fund...............................................22
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ARTICLE IV COVENANTS......................................................................................22
Section 4.01 Payment of Securities...................................................................22
Section 4.02 Maintenance of Office or Agency.........................................................23
Section 4.03 SEC Reports; Financial Statements.......................................................23
Section 4.04 Compliance Certificate..................................................................24
Section 4.05 Corporate Existence.....................................................................24
Section 4.06 Maintenance of Properties...............................................................25
Section 4.07 Payment of Taxes and Other Claims.......................................................25
Section 4.08 Waiver of Stay, Extension or Usury Laws.................................................25
Section 4.09 Additional Amounts......................................................................26
ARTICLE V SUCCESSORS.....................................................................................26
Section 5.01 Limitations on Mergers and Consolidations...............................................26
Section 5.02 Successor Person Substituted............................................................27
ARTICLE VI DEFAULTS AND REMEDIES..........................................................................27
Section 6.01 Events of Default.......................................................................27
Section 6.02 Acceleration............................................................................29
Section 6.03 Other Remedies..........................................................................29
Section 6.04 Waiver of Existing or Past Defaults.....................................................30
Section 6.05 Control by Majority.....................................................................30
Section 6.06 Limitations on Suits....................................................................30
Section 6.07 Rights of Holders to Receive Payment....................................................31
Section 6.08 Collection Suit by Trustee..............................................................31
Section 6.09 Trustee May File Proofs of Claim........................................................31
Section 6.10 Priorities..............................................................................32
Section 6.11 Undertaking for Costs...................................................................32
ARTICLE VII TRUSTEE........................................................................................33
Section 7.01 Duties of Trustee.......................................................................33
Section 7.02 Rights of Trustee.......................................................................34
Section 7.03 May Hold Securities.....................................................................34
Section 7.04 Trustee's Disclaimer....................................................................35
Section 7.05 Notice of Defaults......................................................................35
Section 7.06 Reports by Trustee to Holders...........................................................35
Section 7.07 Compensation and Indemnity..............................................................35
Section 7.08 Replacement of Trustee..................................................................36
Section 7.09 Successor Trustee by Merger, etc........................................................38
Section 7.10 Eligibility; Disqualification...........................................................38
Section 7.11 Preferential Collection of Claims Against Company.......................................39
ARTICLE VIII DISCHARGE OF INDENTURE.........................................................................39
Section 8.01 Termination of Company's Obligations....................................................39
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Section 8.02 Application of Trust Money..............................................................43
Section 8.03 Repayment to Company....................................................................43
Section 8.04 Reinstatement...........................................................................43
ARTICLE IX SUPPLEMENTAL INDENTURES AND AMENDMENTS.........................................................44
Section 9.01 Without Consent of Holders..............................................................44
Section 9.02 With Consent of Holders.................................................................45
Section 9.03 Compliance with Trust Indenture Act.....................................................47
Section 9.04 Revocation and Effect of Consents.......................................................47
Section 9.05 Notation on or Exchange of Securities...................................................48
Section 9.06 Trustee to Sign Amendments, etc.........................................................48
ARTICLE X MISCELLANEOUS .................................................................................48
Section 10.01 Trust Indenture Act Controls...........................................................48
Section 10.02 Notices................................................................................48
Section 10.03 Communication by Holders with Other Holders............................................50
Section 10.04 Certificate and Opinion as to Conditions Precedent.....................................50
Section 10.05 Statements Required in Certificate or Opinion..........................................50
Section 10.06 Rules by Trustee and Agents............................................................51
Section 10.07 Legal Holidays.........................................................................51
Section 10.08 No Recourse Against Others.............................................................51
Section 10.09 Governing Law..........................................................................51
Section 10.10 No Adverse Interpretation of Other Agreements..........................................51
Section 10.11 Successors.............................................................................51
Section 10.12 Severability...........................................................................52
Section 10.13 Counterpart Originals..................................................................52
Section 10.14 Table of Contents; Headings; etc.......................................................52
Section 10.15 Agent for Service of Process...........................................................52
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INDENTURE dated as of , between Seitel, Inc.,
a Delaware corporation (the "Company"), and The First National Bank of Chicago,
a national banking association, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of the Company's
unsecured debentures, notes or other evidences of indebtedness (the
"Securities") to be issued from time to time in one or more series as provided
in this Indenture:
ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions.
"Additional Amounts" means any additional amounts required by
the express terms of a Security or by or pursuant to a Board Resolution, under
circumstances specified therein or pursuant thereto, to be paid by the Company
with respect to certain taxes, assessments or other governmental charges
imposed on certain Holders and that are owing to such Holders.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by, or under direct or
indirect common control with, such specified Person. For purposes of this
definition, "control" of a Person shall mean the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise, and the terms
"controlling" and "controlled" shall have meanings correlative to the
foregoing.
"Agent" means any Registrar or Paying Agent.
"Bankruptcy Law" means Title 11 of the United States Code or
any similar federal, state or foreign law for the relief of debtors.
"Board of Directors" means the Board of Directors of the
Company or any committee thereof duly authorized, with respect to any
particular matter, to act by or on behalf of the Board of Directors of the
Company.
"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, and delivered to the Trustee.
"Business Day" means any day that is not a Legal Holiday.
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"Capital Stock" of any Person means and includes any and all
shares, interests, rights to purchase, warrants or options (whether or not
currently exercisable), participations or other equivalents of or interests
(however designated) in the equity (which includes, but is not limited to,
common stock, preferred stock and partnership and joint venture interests) of
such Person (excluding any debt securities that are convertible into, or
exchangeable for, such equity).
"Common Equity" of any Person means and includes all Capital
Stock of such Person that is generally entitled to (i) vote in the election of
directors of such Person or (ii) if such Person is not a corporation, vote or
otherwise participate in the selection of the governing body, partners,
managers or others that will control the management and policies of such
Person.
"Company" means the Person named as the "Company" in the
first paragraph of this instrument until a successor corporation shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor corporation.
"Company Order" and "Company Request" mean, respectively, a
written order or request signed in the name of the Company by two Officers of
the Company, and delivered to the Trustee.
"Corporate Trust Office of the Trustee" shall be the address
specified in Section 10.02 and may be located at such other address as the
Trustee may give notice to the Company.
"Default" means any event, act or condition that is, or after
notice or the passage of time or both would be, an Event of Default.
"Depositary" means, with respect to the Securities of any
series issuable or issued in whole or in part in global form, the Person
specified pursuant to Section 2.01 hereof as the initial Depositary with
respect to the Securities of such series, until a successor shall have been
appointed and become such pursuant to the applicable provision of this
Indenture, and thereafter, "Depositary" shall mean or include such successor.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time shall be legal tender
for the payment of public and private debt.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and any successor statute.
"GAAP" means generally accepted accounting principles in the
United States set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as may be approved by a significant
segment of the accounting profession of the United States, as in effect from
time to time.
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"Global Security" of any series means a Security of that
series that is issued in global form in the name of the Depositary with respect
thereto or its nominee.
"Government Obligations" means, with respect to a series of
Securities, direct noncallable obligations of the government that issues the
currency in which the Securities of the series are payable for the payment of
which the full faith and credit of such government is pledged, or noncallable
obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of such government, the payment of which is fully and
unconditionally guaranteed as a full faith and credit obligation by such
government.
"Holder" means a Person in whose name a Security is
registered.
"Indenture" means this instrument as originally executed or
as it may from time to time be amended or supplemented by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, and includes the terms of particular series of Securities
established as contemplated by Section 2.01.
"interest" means, with respect to an Original Issue Discount
Security that by its terms bears interest only after Maturity, interest payable
after Maturity.
"Interest Payment Date," when used with respect to any
Security, has the meaning assigned to such term in the Security as contemplated
by Section 2.01.
"Issue Date" means, with respect to Securities of a series,
the date on which the Securities of such series are originally issued under
this Indenture.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in any of The City of New York, New York, Houston, Texas
or a Place of Payment are authorized or obligated by law, regulation or
executive order to remain closed.
"Maturity" means, with respect to any Security, the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity
thereof, or by declaration of acceleration, call for redemption or otherwise.
"Officer" means the Chairman of the Board, the President, any
Vice Chairman of the Board, any Vice President, the chief financial officer,
the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any
Assistant Secretary of a Person.
"Officers' Certificate" means a certificate signed by two
Officers of a Person, one of whom must be the Person's chief executive officer,
chief financial officer or chief accounting officer.
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"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. Such counsel may be an employee of or
counsel to the Company or the Trustee.
"Original Issue Discount Security" means any Security that
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 6.02.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, incorporated or unincorporated
association, joint stock company, trust, unincorporated organization or
government or other agency or political subdivision thereof or other entity of
any kind.
"Place of Payment" means, with respect to the Securities of
any series, the place or places where, subject to the provisions of Section
4.02, the principal of, premium (if any) and interest on the Securities of that
series are payable as specified in accordance with Section 2.01.
"Redemption Date" means, with respect to any Security to be
redeemed, the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price" means, with respect to any Security to be
redeemed, the price at which it is to be redeemed pursuant to this Indenture.
"SEC" means the Securities and Exchange Commission.
"Securities" has the meaning stated in the preamble of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Custodian" means, with respect to Securities of a
series issued in global form, the Trustee for Securities of such series, acting
in its capacity as custodian with respect to the Securities of such series, or
any successor entity thereto.
"Significant Subsidiary" means any "significant subsidiary"
of the Company, as such term is defined in Regulation S-X, Title 17, Code of
U.S. Federal Regulations Part 210, as in effect on the date hereof.
"Stated Maturity" means, when used with respect to any
Security or any installment of principal thereof or premium or interest
thereon, the date specified in such Security as the fixed date on which the
principal of such Security or such installment of principal or premium or
interest is due and payable.
"Subsidiary" means, as to any Person, any corporation,
association or other business entity in which such Person or one or more of its
Subsidiaries or such Person and one or more of its Subsidiaries own more than
50% of the total combined voting power of all Common Equity, and any
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partnership or joint venture if more than a 50% interest in the profits or
capital thereof is owned by such Person or one or more of its Subsidiaries or
such Person and one or more of its Subsidiaries (unless such partnership or
joint venture can and does ordinarily take major business actions without the
prior approval of such Person or one or more of its Subsidiaries).
"TIA" means the Trust Indenture Act of 1939, as amended (15
U.S.C. Sections 77aaa- 77bbbb), as in effect on the date hereof.
"Trust Officer" means any officer or assistant officer of the
Trustee assigned by the Trustee to administer its corporate trust matters.
"Trustee" means the Person named as such above until a
successor replaces it in accordance with the applicable provisions of this
Indenture, and thereafter "Trustee" means each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person, "Trustee" as
used with respect to the Securities of any series means the Trustee with
respect to Securities of that series.
"United States" means the United States of America (including
the States and the District of Columbia) and its territories, its possessions
(including Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands) and other areas subject to its
jurisdiction.
"United States Alien" means any Person who, for United States
federal income tax purposes, is a foreign corporation, a nonresident alien
individual, a nonresident alien or foreign fiduciary of an estate or trust, or
a foreign partnership.
"U.S. Government Obligations" means Government Obligations
with respect to Securities payable in Dollars.
Section 1.02 Other Definitions.
DEFINED
TERM IN SECTION
---- ----------
"Bankruptcy Custodian" ..........................................................................6.01
"covenant defeasance" ...........................................................................8.01
"Event of Default" ..............................................................................6.01
"legal defeasance" ..............................................................................8.01
"mandatory sinking fund payment" ................................................................3.09
"optional sinking fund payment" .................................................................3.09
"Paying Agent" ..................................................................................2.05
"Registrar" .....................................................................................2.05
"Required Currency" .............................................................................6.10
"Successor" .....................................................................................5.01
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Section 1.03 Incorporation by Reference of Trust Indenture
Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company or
any other obligor on the Securities.
All terms used in this Indenture that are defined by the TIA,
defined by a TIA reference to another statute or defined by an SEC rule under
the TIA have the meanings so assigned to them.
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) provisions apply to successive events and transactions;
and
(6) all references in this Indenture to Articles and Sections
are references to the corresponding Articles and Sections in and of
this Indenture.
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ARTICLE II
THE SECURITIES
Section 2.01 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution, and set forth, or
determined in the manner provided, in an Officers' Certificate or in a Company
Order, or established in one or more indentures supplemental hereto, prior to
the issuance of Securities of any series:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from the Securities of all
other series);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 2.08, 2.09, 2.12, 2.17,
3.07 or 9.05);
(3) whether any Securities of the series are to be issuable
initially in temporary global form and whether any Securities of the
series are to be issuable in permanent global form, as Global
Securities or otherwise, and, if so, whether beneficial owners of
interests in any such Global Security may exchange such interests for
Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may
occur, if other than in the manner provided in Section 2.17, and the
initial Depositary and Security Custodian, if any, for any Global
Security or Securities of such series;
(4) (i) if other than provided herein, the Person to whom any
interest on Securities of the series shall be payable, and (ii) the
manner in which any interest payable on a temporary Global Security on
any Interest Payment Date will be paid if other than in the manner
provided in Section 2.14;
(5) the date or dates on which the principal of (and premium,
if any, on) the Securities of the series is payable or the method of
determination thereof;
(6) the rate or rates, or the method of determination
thereof, at which the Securities of the series shall bear interest, if
any, whether and under what circumstances Additional Amounts with
respect to such Securities shall be payable, the date or dates from
which any interest shall accrue, the Interest Payment Dates on which
any such interest shall
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be payable and the record date for the interest payable on any
Securities on any Interest Payment Date;
(7) the place or places where, subject to the provisions of
Section 4.02, the principal of, premium (if any) and interest on and
any Additional Amounts with respect to the Securities of the series
shall be payable;
(8) the period or periods within which, the price or prices
(whether denominated in cash, securities or otherwise) 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, if the
Company is to have that option, and the manner in which the Company
may exercise any such option, if different from those set forth
herein;
(9) the obligation, if any, of the Company to redeem,
purchase or repay Securities of the series pursuant to any sinking
fund or analogous provisions or at the option of a Holder thereof and
the period or periods within which, the price or prices (whether
denominated in cash, securities or otherwise) at which and the terms
and conditions upon which Securities of the series shall be redeemed,
purchased or repaid in whole or in part pursuant to such obligation;
(10) if other than denominations of $1,000 and any integral
multiple thereof, the denomination in which any Securities of that
series shall be issuable;
(11) the form, including Capital Stock, other debt securities
(including Securities), warrants, other equity securities, or any
other securities or property of the Company or any other Person in
which payment of the principal of, premium (if any) and interest on
and any Additional Amounts with respect to the Securities of the
series shall be payable;
(12) if the amount of payments of principal of, premium (if
any) and interest on and any Additional Amounts with respect to the
Securities of the series may be determined with reference to any
commodities, currencies or indices, values, rates or prices or any
other index or formula, the manner in which such amounts shall be
determined;
(13) if other than the entire principal amount thereof, the
portion of the principal amount of Securities of the series that shall
be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 6.02;
(14) any additional means of satisfaction and discharge of
this Indenture and any additional conditions or limitations to
discharge with respect to Securities of the series pursuant to Article
VIII or any modifications of or deletions from such conditions or
limitations;
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(15) any deletions or modifications of or additions to the
Events of Default set forth in Section 6.01 or covenants of the
Company set forth in Article IV pertaining to the Securities of the
series;
(16) any restrictions or other provisions with respect to the
transfer or exchange of Securities of the series, which may amend,
supplement, modify or supersede those contained in this Article II;
(17) if the Securities of the series are to be convertible
into or exchangeable for Capital Stock, other debt securities
(including Securities), warrants, other equity securities, or any
other securities or property of the Company or any other Person, at
the option of the Company or the Holder or upon the occurrence of any
condition or event, the terms and conditions for such conversion or
exchange; and
(18) any other terms of the series (which terms shall not be
prohibited by the provisions of this Indenture).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to the Board Resolution referred to above and (subject to Section
2.03) set forth, or determined in the manner provided, in the Officers'
Certificate or Company Order referred to above or in any such indenture
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, together with such Board Resolution, shall be set forth in an Officers'
Certificate or 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 or Company Order setting forth the terms of the series.
Section 2.02 Denominations.
The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by Section 2.01. In the
absence of any such provisions with respect to the Securities of any series,
the Securities of such series denominated in Dollars shall be issuable in
denominations of $1,000 and any integral multiples thereof.
Section 2.03 Forms Generally.
The Securities of each series shall be in fully registered
form and in substantially such form or forms (including temporary or permanent
global form) established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto. The Securities may have notations, legends or
endorsements required by law, securities exchange rules, the Company's
certificate of incorporation or other similar governing documents, agreements
to which the Company is subject,
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if any, or usage (provided that any such notation, legend or endorsement is in
a form acceptable to the Company). A copy of the Board Resolution establishing
the form or forms of Securities of any series shall be delivered to the Trustee
at or prior to the delivery of the Company Order contemplated by Section 2.04
for the authentication and delivery of such Securities.
The definitive Securities of each series shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the Officers executing such Securities, as
evidenced by their execution thereof.
The Trustee's certificate of authentication shall be in
substantially the following form:
"This is one of the Securities of the series designated
therein referred to in the within- mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:
------------------------------------
Authorized Signatory".
Section 2.04 Execution, Authentication, Delivery and
Dating.
At least one Officer of the Company shall sign the Securities
of each series on behalf of the Company by manual or facsimile signature.
If an Officer of the Company whose signature is on a Security
no longer holds that office at the time the Security is authenticated, the
Security shall be valid nevertheless.
A Security shall not be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose until authenticated by the
manual signature of an authorized signatory of the Trustee, which signature
shall be conclusive evidence that the Security has been authenticated under
this Indenture.
The Trustee shall authenticate and deliver Securities of a
series for original issue upon a Company Order for the authentication and
delivery of such Securities or pursuant to such procedures reasonably
acceptable to the Trustee as may be specified from time to time by Company
Order. Such order shall specify the amount of the Securities of such series to
be authenticated, the date on which the original issue of Securities of such
series is to be authenticated, the name or names of the initial Holder or
Holders and any other terms of the Securities of such series not otherwise
determined. If provided for in such procedures, such Company Order may
authorize (1) authentication and delivery of Securities of such series for
original issue from time to time, with certain terms (including, without
limitation, the Maturity date or dates, original issue date or dates
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and interest rate or rates) that differ from Security to Security and (2) may
authorize authentication and delivery pursuant to oral or electronic
instructions from the Company or its duly authorized agent, which instructions
shall be promptly confirmed in writing.
If the form or terms of the Securities of the series have
been established in or pursuant to one or more Board Resolutions or any other
method permitted by Section 2.01, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive (in addition to the
Company Order referred to above and the other documents required by Section
10.04), and (subject to Section 7.01) shall be fully protected in relying upon,
(a) an Officers' Certificate setting forth the Board
Resolution and, if applicable, an appropriate record of any action taken
pursuant thereto, as contemplated by the last paragraph of Section 2.01; and
(b) an Opinion of Counsel to the effect that:
(i) the form of such Securities has been established
in conformity with the provisions of this Indenture;
(ii) the terms of such Securities have been
established in conformity with the provisions of this
Indenture; and
(iii) such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the
manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and binding
obligations of the Company, enforceable against the Company
in accordance with their terms, except as the enforceability
thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other
similar laws in effect from time to time affecting the rights
of creditors generally, and the application of general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
If all the Securities of any series are not to be issued at one time, it shall
not be necessary to deliver an Officers' Certificate and Opinion of Counsel at
the time of issuance of each such Security, but such Officers' Certificate and
Opinion of Counsel shall be delivered at or before the time of issuance of the
first Security of the series to be issued.
The Trustee shall not be required to authenticate such
Securities if the issuance of such Securities pursuant to this Indenture would
affect the Trustee's own rights, duties or immunities under the Securities and
this Indenture or otherwise in a manner not reasonably acceptable to the
Trustee.
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The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Securities. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company or an Affiliate of the
Company.
Each Security shall be dated the date of its authentication.
Section 2.05 Registrar and Paying Agent.
The Company shall maintain an office or agency for each
series of Securities where Securities of such series may be presented for
registration of transfer or exchange ("Registrar") and an office or agency
where Securities of such series may be presented for payment ("Paying Agent").
The Registrar shall keep a register of the Securities of each series and of
their transfer and exchange. The Company may appoint one or more co-registrars
and one or more additional paying agents. The term "Registrar" includes any
co-registrar and the term "Paying Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement
with any Registrar or Paying Agent not a party to this Indenture. The agreement
shall implement the provisions of this Indenture that relate to such Agent. The
Company shall notify the Trustee of the name and address of any Agent not a
party to this Indenture. The Company may change any Paying Agent or Registrar
without notice to any Holder. If the Company fails to appoint or maintain
another entity as Registrar or Paying Agent, the Trustee shall act as such. The
Company or any of its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints the Trustee as Registrar and
Paying Agent.
Section 2.06 Paying Agent to Hold Money in Trust.
With respect to each series of Securities, the Company shall
require each Paying Agent other than the Trustee to agree in writing that the
Paying Agent will hold in trust for the benefit of Holders of such series or
the Trustee all money held by the Paying Agent for the payment of principal of,
premium, if any, or interest on or any Additional Amounts with respect to
Securities of such series and will notify the Trustee of any default by the
Company in making any such payment. While any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee
and to account for any funds disbursed. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee and to account for any
funds disbursed. Upon payment over to the Trustee and upon accounting for any
funds disbursed, the Paying Agent (if other than the Company or a Subsidiary of
the Company) shall have no further liability for the money. If the Company or a
Subsidiary of the Company acts as Paying Agent with respect to a series of
Securities, it shall segregate and hold in a separate trust fund for the
benefit of
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the Holders of such series all money held by it as Paying Agent. Each Paying
Agent shall otherwise comply with TIA Section 317(b).
Section 2.07 Holder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Holders of each series of Securities and shall otherwise comply
with TIA Section 312(a). If the Trustee is not the Registrar with respect to a
series of Securities, the Company shall furnish to the Trustee at least seven
Business Days before each Interest Payment Date with respect to such series of
Securities, and at such other times as the Trustee may request in writing, a
list in such form and as of such date as the Trustee may reasonably require of
the names and addresses of Holders of such series, and the Company shall
otherwise comply with TIA Section 312(a).
Section 2.08 Transfer and Exchange.
Except as set forth in Section 2.17 or as may be provided
pursuant to Section 2.01, when Securities of any series are presented to the
Registrar with the request to register the transfer of such Securities or to
exchange such Securities for an equal principal amount of Securities of the
same series of like tenor and of other authorized denominations, the Registrar
shall register the transfer or make the exchange as requested if its
requirements and the requirements of this Indenture for such transactions are
met; provided, however, that the Securities presented or surrendered for
registration of transfer or exchange shall be duly endorsed or accompanied by a
written instruction of transfer in form reasonably satisfactory to the
Registrar duly executed by the Holder thereof or by his attorney, duly
authorized in writing, on which instruction the Registrar can rely.
To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Securities at the
Registrar's written request and submission of the Securities (other than Global
Securities). No service charge shall be made to a Holder for any registration
of transfer or exchange (except as otherwise expressly permitted herein), but
the Company may require payment of a sum sufficient to cover any transfer tax
or similar governmental charge payable in connection therewith (other than such
transfer tax or similar governmental charge payable upon exchanges pursuant to
Section 2.12, 3.07 or 9.05). The Trustee shall authenticate Securities in
accordance with the provisions of Section 2.04. Notwithstanding any other
provisions of this Indenture to the contrary, the Company shall not be required
to register the transfer or exchange of (a) any Security selected for
redemption in whole or in part pursuant to Article III, except the unredeemed
portion of any Security being redeemed in part or (b) any Security during the
period beginning 15 Business Days before the mailing of notice of any offer to
repurchase Securities of the series required pursuant to the terms thereof or
of redemption of Securities of a series to be redeemed and ending at the close
of business on the date of mailing.
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Section 2.09 Replacement Securities.
If any mutilated Security of a series is surrendered to the
Trustee, or if the Holder of a Security of a series claims that the Security
has been destroyed, lost or stolen and the Company and the Trustee receive
evidence to their satisfaction of the destruction, loss or theft of such
Security, the Company shall issue and the Trustee shall authenticate a
replacement Security of the same series if the Trustee's requirements are met.
If any such mutilated, destroyed, lost or stolen Security has become or is
about to become due and payable, the Company in its discretion may, instead of
issuing a new Security, pay such Security. If required by the Trustee or the
Company, such Holder must furnish an indemnity bond that is sufficient in the
judgment of the Trustee and the Company to protect the Company, the Trustee,
any Agent or any authenticating agent from any loss that any of them may suffer
if a Security is replaced. The Company and the Trustee may charge a Holder for
their expenses in replacing a Security.
Every replacement Security is an additional obligation of the
Company.
Section 2.10 Outstanding Securities.
The Securities of a series outstanding at any time are all
the Securities of that series authenticated by the Trustee except for those
canceled by it, those delivered to it for cancellation, those reductions in the
interest in a Global Security effected by the Trustee hereunder and those
described in this Section 2.10 as not outstanding.
If a Security is replaced pursuant to Section 2.09, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the principal amount of any Security is considered paid
under Section 4.01, it ceases to be outstanding and interest on it ceases to
accrue.
A Security does not cease to be outstanding because the
Company or an Affiliate of the Company holds the Security.
Section 2.11 Original Issue Discount and Treasury Securities.
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, amendment, supplement,
waiver or consent, (a) the principal amount of an Original Issue Discount
Security shall be the principal amount thereof that would be due and payable as
of the date of such determination upon acceleration of the Maturity thereof
pursuant to Section 6.02 and (b) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other
obligor shall be disregarded, except that, for the purpose of determining
whether the Trustee shall be protected in relying upon any such
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direction, amendment, supplement, waiver or consent, only Securities with
respect to which the Trustee has received written notice that they are so owned
shall be so disregarded.
Section 2.12 Temporary Securities.
Until definitive Securities of any series are ready for
delivery, the Company may prepare and the Trustee shall authenticate temporary
Securities. Temporary Securities shall be substantially in the form of
definitive Securities, but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate definitive Securities in
exchange for temporary Securities. Until so exchanged, the temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities.
Section 2.13 Cancellation.
The Company at any time may deliver Securities to the Trustee
for cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for registration of transfer,
exchange, payment or redemption or for credit against any sinking fund payment.
The Trustee shall cancel all Securities surrendered for registration of
transfer, exchange, payment, redemption, replacement or cancellation or for
credit against any sinking fund. Unless the Company shall direct in writing
that canceled Securities be returned to it, after written notice to the Company
all canceled Securities held by the Trustee shall be disposed of in accordance
with the usual disposal procedures of the Trustee, and the Trustee shall
maintain a record of their disposal. The Company may not issue new Securities
to replace Securities that have been paid or that have been delivered to the
Trustee for cancellation.
Section 2.14 Payments; Defaulted Interest.
Unless otherwise provided as contemplated by Section 2.01
with respect to Securities of any series, interest (except defaulted interest)
on any Security that is payable, and is punctually paid or duly provided for,
on any Interest Payment Date shall be paid to the Persons who are registered
Holders of that Security at the close of business on the record date next
preceding such Interest Payment Date. Unless otherwise provided with respect to
the Securities of any series, the Company will pay the principal of, premium
(if any) and interest on and any Additional Amounts with respect to the
Securities in Dollars. The Company may, however, pay such amounts (1) by wire
transfer with respect to Global Securities or (2) by check payable in such
money mailed to a Holder's registered address with respect to any Securities.
If the Company defaults in a payment of interest on the
Securities of any series, it shall pay the defaulted interest in any lawful
manner plus, to the extent lawful, interest on the defaulted interest, in each
case at the rate provided in the Securities of such series and in Section 4.01.
The Company may pay the defaulted interest to the Persons who are Holders on a
subsequent special record date. At least 15 days before any special record date
selected by the
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Company, the Company (or the Trustee, in the name of and at the expense of the
Company upon 20 days' prior written notice from the Company setting forth such
record date and the interest amount to be paid) shall mail to Holders of any
such series of Securities a notice that states the special record date, the
related payment date and the amount of such interest to be paid.
Section 2.15 Persons Deemed Owners.
The Company, the Trustee, any Agent and any authenticating
agent may treat the Person in whose name any Security is registered as the
owner of such Security for the purpose of receiving payments of principal of,
premium (if any) or interest on, or any Additional Amounts with respect to such
Security and for all other purposes. None of the Company, the Trustee, any
Agent or any authenticating agent shall be affected by any notice to the
contrary.
Section 2.16 Computation of Interest.
Except as otherwise specified as contemplated by Section 2.01
for Securities of any series, interest on the Securities of each series shall
be computed on the basis of a year comprising twelve 30-day months.
Section 2.17 Global Securities; Book-Entry Provisions.
If Securities of a series are issuable in global form as a
Global Security, as contemplated by Section 2.01, then, notwithstanding clause
(10) of Section 2.01 and the provisions of Section 2.02, any such Global
Security shall represent such of the outstanding Securities of such series as
shall be specified therein and may provide that it shall represent the
aggregate amount of outstanding Securities from time to time endorsed thereon
and that the aggregate amount of outstanding Securities represented thereby may
from time to time be reduced to reflect exchanges or redemptions. Any
endorsement of a Global Security to reflect the amount, or any increase or
decrease in the amount, of outstanding Securities represented thereby shall be
made by the Trustee in such manner and upon instructions given by such Person
or Persons as shall be specified in such Security or in a Company Order to be
delivered to the Trustee pursuant to Section 2.04. Subject to the provisions of
Section 2.04 and, if applicable, Section 2.12, the Trustee shall deliver and
redeliver any Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified in such Security or in
the applicable Company Order. With respect to the Securities of any series that
are represented by a Global Security, the Company authorizes the execution and
delivery by the Trustee of a letter of representations or other similar
agreement or instrument in the form customarily provided for by the Depositary
appointed with respect to such Global Security. Any Global Security may be
deposited with the Depositary or its nominee, or may remain in the custody of
the Security Custodian therefor pursuant to a FAST Balance Certificate
Agreement or similar agreement between the Trustee and the Depositary. If a
Company Order has been, or simultaneously is, delivered, any instructions by
the Company with respect to endorsement or delivery or redelivery of a Security
in global form shall be in writing but need not comply with Section 10.05 and
need not be accompanied by an Opinion of Counsel.
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Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depositary, or the Security Custodian as
its custodian, or under such Global Security, and the Depositary may be treated
by the Company, the Security Custodian and any agent of the Company or the
Trustee as the absolute owner of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, (i) the registered holder of a
Global Security of any series may grant proxies and otherwise authorize any
Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action that a Holder of such series is entitled to
take under this Indenture or the Securities of such series and (ii) nothing
herein shall prevent the Company, the Security Custodian or any agent of the
Company or the Security Custodian, from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or
shall impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a beneficial owner
of any Security.
Notwithstanding Section 2.08, and except as otherwise
provided pursuant to Section 2.01, transfers of a Global Security shall be
limited to transfers of such Global Security in whole, but not in part, to the
Depositary, its successors or their respective nominees. Interests of
beneficial owners in a Global Security may be transferred in accordance with
the rules and procedures of the Depositary. Securities of any series shall be
transferred to all beneficial owners of a Global Security of such series in
exchange for their beneficial interests in that Global Security if, and only
if, either (1) the Depositary notifies the Company that it is unwilling or
unable to continue as Depositary for the Global Security of such series and a
successor Depositary is not appointed by the Company within 90 days of such
notice, (2) an Event of Default has occurred with respect to such series and is
continuing and the Registrar has received a request from the Depositary to
issue Securities of such series in lieu of all or a portion of that Global
Security (in which case the Company shall deliver Securities of such series
within 30 days of such request) or (3) the Company determines not to have the
Securities of such series represented by a Global Security.
In connection with any transfer of a portion of the
beneficial interest in a Global Security of any series to beneficial owners
pursuant to this Section 2.17, the Registrar shall reflect on its books and
records the date and a decrease in the principal amount of the Global Security
of that series in an amount equal to the principal amount of the beneficial
interest in the Global Security of that series to be transferred, and the
Company shall execute, and the Trustee upon receipt of a Company Order for the
authentication and delivery of Securities of that series shall authenticate and
deliver, one or more Securities of the same series of like tenor and amount.
In connection with the transfer of all the beneficial
interests in a Global Security of any series to beneficial owners pursuant to
this Section 2.17, the Global Security shall be deemed to be surrendered to the
Trustee for cancellation, and the Company shall execute, and the Trustee shall
authenticate and deliver, to each beneficial owner identified by the Depositary
in exchange for its beneficial interest in the Global Security, an equal
aggregate principal amount of Securities of that series of authorized
denominations.
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Neither the Company nor the Trustee will have any
responsibility or liability for any aspect of the records relating to, or
payments made on account of, Securities of any series by the Depositary, or for
maintaining, supervising or reviewing any records of the Depositary relating to
such Securities. Neither the Company nor the Trustee shall be liable for any
delay by the related Global Security Holder or the Depositary in identifying
the beneficial owners, and each such Person may conclusively rely on, and shall
be protected in relying on, instructions from such Global Security Holder or
the Depositary for all purposes (including with respect to the registration and
delivery, and the respective principal amounts, of the Securities to be
issued).
Notwithstanding the provisions of Sections 2.03 and 2.14,
unless otherwise specified as contemplated by Section 2.01 with respect to
Securities of any series, payment of principal of and premium (if any) and
interest on and any Additional Amounts with respect to any Global Security
shall be made to the Person or Persons specified therein.
ARTICLE III
REDEMPTION
Section 3.01 Applicability of Article.
Securities of any series that are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by Section 2.01 for Securities of any
series) in accordance with this Article III.
Section 3.02 Notice to the Trustee.
If the Company elects to redeem Securities of any series
pursuant to this Indenture, it shall notify the Trustee of the Redemption Date
and principal amount of Securities of such series to be redeemed. The Company
shall so notify the Trustee at least 45 days before the Redemption Date (unless
a shorter notice shall be satisfactory to the Trustee) by delivering to the
Trustee an Officers' Certificate stating that such redemption will comply with
the provisions of this Indenture and of the Securities of such series. Any such
notice may be canceled at any time prior to the mailing of such notice of such
redemption to any Holder of the Securities of such series and shall thereupon
be void and of no effect.
Section 3.03 Selection of Securities To Be Redeemed.
If less than all the Securities of any series are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the outstanding
Securities of such series not previously called for redemption, either pro
rata, by lot or by such other method as the Trustee shall deem fair and
appropriate. Such redemption may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities of that
series or any integral multiple thereof) of the principal amount of Securities
of
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such series of a denomination larger than the minimum authorized denomination
for Securities of that series or of the principal amount of Global Securities
of such series.
The Trustee shall promptly notify the Company and the
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
For purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Securities of any series
shall relate, in the case of any of the Securities redeemed or to be redeemed
only in part, to the portion of the principal amount thereof which has been or
is to be redeemed.
Section 3.04 Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities of a series to be redeemed, at
the address of such Holder appearing in the register of Securities for such
series maintained by the Registrar.
All notices of redemption shall identify the Securities to be
redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) that, unless the Company defaults in making the
redemption payment, interest on Securities called for redemption
ceases to accrue on and after the Redemption Date, and the only
remaining right of the Holders of such Securities is to receive
payment of the Redemption Price plus accrued interest on and any
Additional Amounts with respect to such Securities upon surrender to
the Paying Agent of the Securities redeemed;
(4) if any Security is to be redeemed in part, the portion of
the principal amount thereof to be redeemed and that on and after the
Redemption Date, upon surrender for cancellation of such Security to
the Paying Agent, a new Security or Securities in the aggregate
principal amount equal to the unredeemed portion thereof will be
issued without charge to the Holder;
(5) that Securities called for redemption must be surrendered
to the Paying Agent to collect the Redemption Price plus accrued
interest on and any Additional Amounts with respect to such Securities
and the name and address of the Paying Agent;
(6) that the redemption is for a sinking or analogous fund,
if such is the case; and
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(7) the CUSIP number, if any, relating to such Securities.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
written request, by the Trustee in the name and at the expense of the Company.
If at the time notice of redemption shall be given the
Company shall not have deposited with a Paying Agent and/or irrevocably
directed the Trustee or a Paying Agent to apply, from money held by it
available to be used for the redemption of Securities that are to be redeemed,
an amount in cash sufficient to redeem all of the Securities called for
redemption, including accrued interest to the Redemption Date, such notice
shall state that it is subject to the receipt of the redemption monies by the
Trustee or a Paying Agent on or before the Redemption Date and such notice
shall be of no effect unless such monies are so received before such date.
Section 3.05 Effect of Notice of Redemption.
Once notice of redemption is mailed, subject to the last
paragraph of Section 3.04, Securities called for redemption become due and
payable on the Redemption Date and at the Redemption Price. Upon surrender to
the Paying Agent, such Securities called for redemption shall be paid at the
Redemption Price plus accrued interest on and any Additional Amounts with
respect to such Securities, but interest installments whose maturity is on or
prior to such Redemption Date will be payable on the relevant Interest Payment
Dates to the Holders of record at the close of business on the relevant record
dates specified pursuant to Section 2.01.
Section 3.06 Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit
with the Trustee or the Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 2.06) an
amount of money in same day funds sufficient to pay the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on and any Additional Amounts with respect to, the Securities or
portions thereof which are to be redeemed on that date, other than Securities
or portions thereof called for redemption on that date which have been
delivered by the Company to the Trustee for cancellation.
If the Company complies with the preceding paragraph, then,
unless the Company defaults in the payment of such Redemption Price, plus
accrued interest on and any Additional Amounts with respect to such Securities,
interest on the Securities to be redeemed will cease to accrue on and after the
applicable Redemption Date, whether or not such Securities are presented for
payment, and the Holders of such Securities shall have no further rights with
respect to such Securities except for the right to receive the Redemption
Price, plus accrued interest on and any Additional Amounts with respect to such
Securities, upon surrender of such Securities. If any Security called for
redemption shall not be so paid upon surrender thereof for redemption, the
principal of and premium, if any, any Additional Amounts, and accrued interest
thereon, to the extent
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lawful, shall, until paid, bear interest from the Redemption Date at the rate
specified pursuant to Section 2.01 or provided in the Securities or, in the
case of Original Issue Discount Securities, such Securities' initial yield to
Maturity.
Section 3.07 Securities Redeemed or Purchased in Part.
Upon surrender to the Paying Agent of a Security of any
series to be redeemed in part, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge
a new Security or Securities of the same series and of any authorized
denomination as requested by such Holder in aggregate principal amount equal
to, and in exchange for, the unredeemed portion of the principal of the
Security so surrendered that is not redeemed.
Section 3.08 Purchase of Securities.
Unless otherwise specified as contemplated by Section 2.01,
the Company and any Affiliate of the Company may at any time purchase or
otherwise acquire Securities of any series in the open market or by private
agreement. Such acquisition shall not operate as or be deemed for any purpose
to be a redemption of the indebtedness represented by such Securities. Any
Securities purchased or acquired by the Company may be delivered to the Trustee
for cancellation and, upon such cancellation, the indebtedness represented
thereby shall be deemed to be satisfied. Section 2.13 shall apply to all
Securities so delivered.
Section 3.09 Mandatory and Optional Sinking Funds.
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." Unless otherwise provided 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 3.10. 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 and by this Article III.
Section 3.10 Satisfaction of Sinking Fund Payments with
Securities.
The Company may deliver outstanding Securities of a series
(other than any previously called for redemption) and 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 series of Securities; 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
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for redemption through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
Section 3.11 Redemption of Securities for Sinking Fund.
Not less than 45 days prior (unless a shorter period shall be
satisfactory to the Trustee) to each sinking fund payment date for any series
of Securities, the Company will deliver to the Trustee a Company Order
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, that is to
be satisfied by payment of cash and the portion thereof, if any, that is to be
satisfied by delivery of or by crediting Securities of that series pursuant to
Section 3.10 and will also deliver to the Trustee any Securities to be so
delivered. Failure of the Company to deliver timely such Company Order and
Securities specified in this paragraph shall not constitute a default but shall
constitute the election of the Company (i) that the mandatory sinking fund
payment for such series due on the next succeeding sinking fund payment date
shall be paid entirely in cash without the option to deliver or credit
Securities of such series in respect thereof and (ii) that the Company will
make no optional sinking fund payment with respect to such series as provided
in this Section.
If the sinking fund payment or payments (mandatory or
optional or both) to be made in cash on the next succeeding sinking fund
payment date plus any unused balance of any preceding sinking fund payments
made in cash shall exceed $100,000 or a lesser sum if the Company shall so
request with respect to the Securities of any particular series, such cash
shall be applied on the next succeeding sinking fund payment date to the
redemption of Securities of such series at the sinking fund redemption price
together with accrued interest to the date fixed for redemption. If such amount
shall be $100,000 or less and the Company makes no such request, then it shall
be carried over until a sum in excess of $100,000 is available. 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 3.03 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 3.04. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
3.05, 3.06 and 3.07.
ARTICLE IV
COVENANTS
Section 4.01 Payment of Securities.
The Company shall pay the principal of, premium (if any) and
interest on and any Additional Amounts with respect to the Securities of each
series on the dates and in the manner provided in the Securities of such series
and in this Indenture. Principal, premium, interest and any Additional Amounts
shall be considered paid on the date due if the Paying Agent, other than the
Company or a Subsidiary of the Company, holds on that date money deposited by
the Company
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designated for and sufficient to pay all principal, premium, interest and any
Additional Amounts then due.
The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal of
and premium (if any) on Securities of any series, at a rate equal to the then
applicable interest rate on the Securities of that series to the extent lawful;
and it shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue installments of interest and any
Additional Amount (without regard to any applicable grace period) on Securities
of any series at the same rate to the extent lawful.
Section 4.02 Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any
series of Securities an office or agency (which may be an office of the
Trustee, the Registrar or the Paying Agent) where Securities of that series may
be presented for registration of transfer or exchange, where Securities of that
series may be presented for payment and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may
be served. Unless otherwise designated by the Company by written notice to the
Trustee, such office or agency shall be the office of the Trustee in The City
of New York, which, on the date hereof, is located at 00 Xxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. 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, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee.
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 each Place of Payment 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 SEC Reports; Financial Statements.
The Company shall file with the Trustee, within 15 days after
it files the same with the SEC, copies of the annual reports and the
information, documents and other reports (or copies of such portions of any of
the foregoing as the SEC may by rules and regulations prescribe) that the
Company is required to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act. If the Company is not subject to the requirements of such Section
13 or 15(d), the Company shall file with the Trustee, within 15 days after it
would have been required to file the same with the SEC, financial statements,
including any notes thereto (and with respect to annual reports, an auditors'
report by a firm of established national reputation), and a "Management's
Discussion and Analysis
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of Financial Condition and Results of Operations," both comparable to that
which the Company would have been required to include in such annual reports,
information, documents or other reports if the Company had been subject to the
requirements of such Section 13 or 15(d). The Company shall file with the
Trustee and the SEC, in accordance with rules and regulations prescribed from
time to time by the SEC, such additional information, documents and reports
with respect to compliance by the Company with the conditions and covenants of
this Indenture as may be required from time to time by such rules and
regulations. The Company shall transmit by mail to all Holders, 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 this
Section 4.03 as may be required by rules and regulations prescribed from time
to time by the SEC. The Company shall also comply with the provisions of TIA
Section 314(a).
Section 4.04 Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company, a statement signed by two
Officers of the Company, which need not constitute an Officers' Certificate,
complying with TIA Section 314(a)(4) and stating that in the course of
performance by the signing Officers of the Company of their duties as such
Officers of the Company they would normally obtain knowledge of the keeping,
observing, performing and fulfilling by the Company of its obligations under
this Indenture, and further stating, as to each such Officer signing such
statement, that to his knowledge the Company has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and is not in
default in the performance or observance of any of the terms, provisions and
conditions hereof (or, if a Default or Event of Default shall have occurred,
describing all such Defaults or Events of Default of which such Officer may
have knowledge and what action the Company is taking or proposes to take with
respect thereto).
(b) The Company shall, so long as Securities of any series
are outstanding, deliver to the Trustee, promptly upon any Officer of the
Company becoming aware of any Default or Event of Default under this Indenture,
an Officers' Certificate specifying such Default or Event of Default and what
action the Company is taking or proposes to take with respect thereto.
Section 4.05 Corporate Existence.
Subject to Article V hereof, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and effect its
corporate existence and the corporate, partnership and other existence of each
of its Significant Subsidiaries and all rights (charter and statutory) and
franchises of the Company and its Significant Subsidiaries; provided that the
Company shall not be required to preserve the corporate existence of any
Significant Subsidiary of the Company or any such right or franchise if it
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and its Subsidiaries taken as a whole
and that the loss thereof would not have a material adverse effect on the
business, assets or financial condition of the Company and its Subsidiaries
taken as a whole and would not have any material
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adverse effect on the payment and performance of the obligations of the Company
under the Securities and this Indenture.
Section 4.06 Maintenance of Properties.
The Company shall cause all material properties owned by or
leased to the Company or any Significant Subsidiary of the Company or used or
held for use in the conduct of its business or the business of any such
Significant Subsidiary to be maintained and kept in good condition, repair and
working order (reasonable wear and tear excepted) and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the sole judgment of the Company may be necessary so that
the business carried on in connection therewith may be properly conducted at
all times; provided that nothing in this Section 4.06 shall prevent the Company
from discontinuing the operation or maintenance of any of such properties if
such discontinuance is, in the sole judgment of the Company, desirable and not
disadvantageous in any material respect to the Holders.
Section 4.07 Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all material taxes,
assessments and governmental charges levied or imposed upon the Company or any
of its Significant Subsidiaries or upon the income, profits or property of the
Company or any of its Significant Subsidiaries, and (ii) all material lawful
claims for labor, materials and supplies which, if unpaid, might by law become
a lien upon the property of the Company or any of its Significant Subsidiaries;
provided that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith or would not be
disadvantageous in any material respect to the Holders.
Section 4.08 Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
or any usury law or other law that would prohibit or forgive the Company from
paying all or any portion of the principal of or interest on the Securities of
any series as contemplated herein, wherever enacted, now or at any time
hereafter in force, or which may affect the covenants or the performance of
this Indenture, and (to the extent that it may lawfully do so) the Company
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
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Section 4.09 Additional Amounts.
If the Securities of a series expressly provide for the
payment of Additional Amounts, the Company will pay to the Holder of any
Security of such series Additional Amounts as expressly provided therein.
Whenever in this Indenture there is mentioned, in any context, the payment of
the principal of or any premium or interest on, or in respect of, any Security
of any series, such mention shall be deemed to include mention of the payment
of Additional Amounts provided for in this Section 4.09 to the extent that, in
such context, Additional Amounts are, were or would be payable in respect
thereof pursuant to the provisions of this Section 4.09 and express mention of
the payment of Additional Amounts (if applicable) in any provisions hereof
shall not be construed as excluding Additional Amounts in those provisions
hereof where such express mention is not made.
Unless otherwise provided pursuant to Section 2.01 with
respect to Securities of any series, if the Securities of a series provide for
the payment of Additional Amounts, at least ten days prior to the first
Interest Payment Date with respect to that series of Securities (or if the
Securities of that series will not bear interest prior to Maturity, the first
day on which a payment of principal and any premium is made), and at least ten
days prior to each date of payment of principal and any premium or interest if
there has been any change with respect to the matters set forth in the below-
mentioned Officers' Certificate, the Company shall furnish the Trustee and the
Company's principal Paying Agent or Paying Agents, if other than the Trustee,
with an Officers' Certificate instructing the Trustee and such Paying Agent or
Paying Agents whether such payment of principal of and any premium or interest
on the Securities of that series shall be made to Holders of Securities of that
series who are United States Aliens without withholding for or on account of
any tax, assessment or other governmental charge described in the Securities of
that series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be
withheld on such payments to such Holders of Securities and the Company will
pay to such Paying Agent the Additional Amounts required by this Section. The
Company covenants to indemnify the Trustee and any Paying Agent for and to hold
them harmless against any loss, liability or expense reasonably incurred
without negligence or bad faith on their part arising out of or in connection
with actions taken or omitted by any of them in reliance on any Officers'
Certificate furnished pursuant to this Section 4.09.
ARTICLE V
SUCCESSORS
Section 5.01 Limitations on Mergers and Consolidations.
The Company shall not consolidate with or merge with any
Person, or sell, lease, convey, transfer or otherwise dispose of all or
substantially all of its assets to any Person, unless:
(1) either (a) the Company shall be the continuing
corporation or (b) the Person formed by or surviving such
consolidation or merger (if other than the Company), or to
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which such sale, lease, conveyance, transfer or other disposition
shall be made (collectively, the "Successor"), is organized and
existing under the laws of the United States, or any State thereof or
the District of Columbia, and expressly assumes by supplemental
indenture all of the obligations of the Company under this Indenture
and the Securities;
(2) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing; and
(3) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that the
transaction and such supplemental indenture comply with this
Indenture.
Section 5.02 Successor Person Substituted.
Upon any consolidation or merger of the Company or any sale,
lease, conveyance, transfer or other disposition of all or substantially all of
the assets of the Company in accordance with Section 5.01, any Successor formed
by such consolidation or into or with which the Company is merged or to which
such sale, lease, conveyance, transfer or other disposition is made shall
succeed to, and be substituted for, and may exercise every right and power of
the Company under this Indenture and each series of Securities with the same
effect as if such Successor had been named as the Company herein and the
predecessor Company, in the case of a sale, conveyance, transfer or other
disposition, shall be released from all obligations under this Indenture and
each series of Securities.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
Unless either inapplicable to a particular series or
specifically deleted or modified in or pursuant to the supplemental indenture
or Board Resolution establishing such series of Securities or in the form of
Security for such series, an "Event of Default," wherever used herein with
respect to Securities of any series, occurs if:
(1) the Company defaults in the payment of interest on or any
Additional Amounts with respect to any Security of that series when
the same becomes due and payable and such default continues for a
period of 30 days;
(2) the Company defaults in the payment of the principal of
or premium (if any) on any Security of that series at its Maturity;
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(3) the Company defaults in the deposit of any mandatory
sinking fund payment, when and as due by the terms of a Security of
that series, and such default continues for a period of 30 days;
(4) the Company fails to comply with any of its other
agreements or covenants in, or provisions of, the Securities of such
series or this Indenture (other than an agreement, covenant or
provision that has expressly been included in this Indenture solely
for the benefit of one or more series of Securities other than that
series) and such failure continues for the period and after the notice
specified in the last paragraph of this Section 6.01;
(5) the Company or any Significant Subsidiary of the Company
pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it
in an involuntary case,
(C) consents to the appointment of a Bankruptcy Custodian of
it or for all or for a substantial part of its property, or
(D) makes a general assignment for the benefit of its
creditors;
(6) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that remains unstayed and in effect
for 90 days and that:
(A) is for relief against the Company or any Significant
Subsidiary of the Company as debtor in an involuntary case,
(B) appoints a Bankruptcy Custodian of the Company or any
Significant Subsidiary of the Company or a Bankruptcy Custodian for
all or for a substantial part of the property of the Company or any
Significant Subsidiary of the Company, or
(C) orders the liquidation of the Company or any Significant
Subsidiary of the Company; or
(7) any other Event of Default provided with respect to
Securities of that series occurs.
The term "Bankruptcy Custodian" means any receiver, trustee,
assignee, liquidator or similar official under any Bankruptcy Law.
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The Trustee shall not be deemed to know or have notice of a
Default unless a Trust Officer at the Corporate Trust Office of the Trustee
receives written notice at the Corporate Trust Office of the Trustee of such
Default with specific reference to such Default.
When a Default is cured, it ceases.
A Default under clause (4) or (7) of this Section 6.01 is not
an Event of Default until the Trustee notifies the Company, or the Holders of
at least 25% in principal amount of the then outstanding Securities of the
series affected by such Default notify the Company and the Trustee, of the
Default, and the Company fails to cure the Default within 90 days after receipt
of the notice. The notice must specify the Default, demand that it be remedied
and state that the notice is a "Notice of Default."
Section 6.02 Acceleration.
If an Event of Default with respect to Securities of any
series at the time outstanding (other than an Event of Default specified in
clause (5) or (6) of Section 6.01 hereof) occurs and is continuing, the Trustee
by notice to the Company, or the Holders of at least 25% in principal amount of
the then outstanding Securities of that series by notice to the Company and the
Trustee, may declare the principal of (or, if any such Securities are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of that series) and accrued and unpaid interest on all
then outstanding Securities of such series to be due and payable. Upon any such
declaration, the amounts due and payable on such Securities shall be due and
payable immediately. If an Event of Default specified in clause (5) or (6) of
Section 6.01 hereof occurs, such amounts shall ipso facto become and be
immediately due and payable without any declaration, notice or other act on the
part of the Trustee or any Holder. At any time after such a declaration of
acceleration with respect to Securities of any series has been made and before
a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of a majority in
principal amount of the then outstanding Securities of that series by written
notice to the Trustee may rescind an acceleration and its consequences (other
than nonpayment of principal of or premium or interest on or Additional Amounts
with respect to the Securities) if the rescission would not conflict with any
judgment or decree and if all existing Events of Default with respect to
Securities of that series have been cured or waived, except nonpayment of
principal, premium, interest or Additional Amounts that has become due solely
because of the acceleration.
Section 6.03 Other Remedies.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may pursue any available remedy to
collect the payment of principal of, or premium, if any, or interest on the
Securities of that series or to enforce the performance of any provision of the
Securities of that series or this Indenture.
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The Trustee may maintain a proceeding with respect to
Securities of any series even if it does not possess any of the Securities of
that series or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
Section 6.04 Waiver of Existing or Past Defaults.
Subject to Sections 6.07 and 9.02, the Holders of a majority
in principal amount of the then outstanding Securities of any series by notice
to the Trustee may waive an existing or past Default or Event of Default with
respect to such series and its consequences (including waivers obtained in
connection with a tender offer or exchange offer for Securities of such series
or a solicitation of consents in respect of Securities of such series, provided
that in each case such offer or solicitation is made to all Holders of then
outstanding Securities of such series), except (1) a continuing Default or
Event of Default in the payment of the principal of, or premium, if any, or
interest on or any Additional Amounts with respect to any Security of such
series or (2) a continued Default in respect of a provision that under Section
9.02 cannot be amended or supplemented without the consent of the Holder of
each outstanding Security of such series affected. Upon any such waiver, such
Default shall cease to exist, and any Event of Default with respect to such
series arising therefrom shall be deemed to have been cured for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
Default or impair any right consequent thereon.
Section 6.05 Control by Majority.
With respect to Securities of any series, the Holders of a
majority in principal amount of the then outstanding Securities of such series
may direct in writing the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on it relating to or arising under an Event of Default with respect
to Securities of such series. However, the Trustee may refuse to follow any
direction that conflicts with applicable law or this Indenture, that the
Trustee determines may be unduly prejudicial to the rights of other Holders of
such series, or that may involve the Trustee in personal liability; provided,
however, that the Trustee may take any other action deemed proper by the
Trustee that is not inconsistent with such direction. Prior to taking any
action hereunder, the Trustee shall be entitled to indemnification satisfactory
to it in its sole discretion from Holders directing the Trustee against all
losses and expenses caused by taking or not taking such action.
Section 6.06 Limitations on Suits.
Subject to Section 6.07 hereof, a Holder of a Security of any
series may pursue a remedy with respect to this Indenture or the Securities of
such series only if:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default with respect to such series;
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(2) the Holders of at least 25% in principal amount of the
then outstanding Securities of such series make a written request to
the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
reasonably satisfactory to the Trustee against any loss, liability or
expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; 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.
A Holder may not use this Indenture to prejudice the rights
of another Holder or to obtain a preference or priority over another Holder.
Section 6.07 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Security to receive payment of principal of and
premium, if any, and interest on and any Additional Amounts with respect to
that Security, on or after the respective due dates expressed in that Security,
or to bring suit for the enforcement of any such payment on or after such
respective dates, is absolute and unconditional and shall not be impaired or
affected without the consent of the Holder.
Section 6.08 Collection Suit by Trustee.
If an Event of Default specified in clause (1), (2) or (3) of
Section 6.01 hereof occurs and is continuing with respect to Securities of any
series, the Trustee is authorized to recover judgment in its own name and as
trustee of an express trust against the Company for the amount of principal,
premium (if any), interest and any Additional Amounts remaining unpaid on the
Securities of that series, and interest on overdue principal and premium, if
any, and, to the extent lawful, interest on overdue interest, and such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
Section 6.09 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and
other papers or documents and to take such actions, including participating as
a member, voting or otherwise, of any committee of creditors, as may be
necessary or advisable to have the claims of the Trustee (including any claim
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and the Holders allowed in any judicial
proceeding relative to the Company or its creditors or properties and shall be
entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any Bankruptcy Custodian
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in any such judicial proceeding is hereby authorized by each Holder to make
such payments to the Trustee, and in the event that the Trustee shall consent
to the making of such payments directly to the Holders, to pay to the Trustee
any amount due to it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.07. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 out of
the estate in any such proceeding, shall be denied for any reason, payment of
the same shall be secured by a lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties which the
Holders of the Securities may be entitled to receive in such proceeding whether
in liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 6.10 Priorities.
If the Trustee collects any money pursuant to this Article,
it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for amounts due and unpaid on the
Securities in respect of which or for the benefit of which such money
has been collected, for principal, premium (if any), interest and any
Additional Amounts ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities for
principal, premium (if any), interest and any Additional Amounts,
respectively; and
Third: to the Company.
The Trustee, upon prior written notice to the Company, may
fix record dates and payment dates for any payment to Holders pursuant to this
Article.
Section 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as a trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorney's fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by
a Holder pursuant to Section 6.07, or a suit by a Holder or Holders of more
than 10% in principal amount of the then outstanding Securities of any series.
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ARTICLE VII
TRUSTEE
Section 7.01 Duties of Trustee.
(a) If an Event of Default with respect to the Securities of
any series has occurred and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture with respect to such
series, and use the same degree of care and skill in such exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default with
respect to the Securities of any series:
(1) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, the Trustee shall examine such
certificates and opinions to determine whether, on their face, they
appear to conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its
own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of Section
7.01(b);
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject
to the provisions of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or incur any liability. The Trustee may refuse
to perform any duty or exercise any right
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or power unless it receives indemnity reasonably satisfactory to it against any
loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law. All money received by the Trustee with
respect to Securities of any series shall, until applied as herein provided, be
held in trust for the payment of the principal of, premium (if any) and
interest on and Additional Amounts with respect to the Securities of that
series.
Section 7.02 Rights of Trustee.
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper Person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both to be
provided. The Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance on such Officers' Certificate or Opinion of
Counsel. The Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes
or omits to take in good faith which it believes to be authorized or within its
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company shall be sufficient
if signed by an Officer of the Company.
Section 7.03 May Hold Securities.
The Trustee in its individual or any other capacity may
become the owner or pledgee of Securities and may otherwise deal with the
Company or any of its Affiliates with the same rights it would have if it were
not Trustee. Any Agent may do the same with like rights and duties.
However, the Trustee is subject to Sections 7.10 and 7.11.
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Section 7.04 Trustee's Disclaimer.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities; it shall not be accountable for
the Company's use of the proceeds from the Securities or any money paid to the
Company or upon the Company's direction under any provision hereof; it shall
not be responsible for the use or application of any money received by any
Paying Agent other than the Trustee; and it shall not be responsible for any
statement or recital herein or any statement in the Securities other than its
certificate of authentication.
Section 7.05 Notice of Defaults.
If a Default or Event of Default with respect to the
Securities of any series occurs and is continuing and it is known to the
Trustee, the Trustee shall mail to Holders of Securities of such series a
notice of the Default or Event of Default within 90 days after it occurs.
Except in the case of a Default or Event of Default in payment of principal of,
premium (if any) and interest on and Additional Amounts or any sinking fund
installment with respect to the Securities of such series, the Trustee may
withhold the notice if and so long as a committee of its Trust Officers in good
faith determines that withholding the notice is in the interests of Holders of
Securities of such series.
Section 7.06 Reports by Trustee to Holders.
Within 60 days after each January 31, beginning with January
31, 1999, and in any event prior to March 31 in each year, the Trustee shall
mail to Holders of a series a brief report dated as of such reporting date that
complies with TIA Section 313(a); provided, however, that if no event described
in TIA Section 313(a) has occurred within the twelve months preceding the
reporting date with respect to a series, no report need be transmitted to
Holders of such series. The Trustee also shall comply with TIA Section 313(b).
The Trustee shall also transmit by mail all reports if and as required by TIA
Sections 313(c) and 313(d).
A copy of each report at the time of its mailing to Holders
of a series of Securities shall be filed with the SEC and each securities
exchange, if any, on which the Securities of such series are listed. The
Company shall notify the Trustee if and when any series of Securities is listed
on any stock exchange.
Section 7.07 Compensation and Indemnity.
The Company agrees to pay to the Trustee from time to time
reasonable compensation for its acceptance of this Indenture and services
hereunder. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company agrees to reimburse
the Trustee upon request for all reasonable disbursements, advances and
expenses incurred by it. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
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The Company hereby indemnifies the Trustee against any loss,
liability or expense incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture, except as set
forth in the next paragraph. The Trustee shall notify the Company promptly of
any claim for which it may seek indemnity. The Company shall defend the claim
and the Trustee shall cooperate in the defense. The Trustee may have separate
counsel and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its consent.
The Company shall not be obligated to reimburse any expense
or indemnify against any loss or liability incurred by the Trustee through
negligence or bad faith.
To secure the payment obligations of the Company in this
Section 7.07, the Trustee shall have, and the Company hereby grants, a lien
prior to the Securities on all money or property held or collected by the
Trustee, except that held in trust to pay principal of, premium (if any) and
interest on and any Additional Amounts with respect to the Securities of any
series. Such lien shall survive the satisfaction and discharge of this
Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(5) or (6) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
Section 7.08 Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
The Trustee may resign and be discharged at any time with
respect to the Securities of one or more series by so notifying the Company.
The Holders of a majority in principal amount of the then outstanding
Securities of any series may remove the Trustee with respect to the Securities
of such series by so notifying the Trustee and the Company. The Company may
remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(3) a Bankruptcy Custodian or public officer takes charge of
the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
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If the Trustee resigns or is removed or if a vacancy exists
in the office of Trustee for any reason, with respect to the Securities of one
or more series, the Company shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular
series). Within one year after the successor Trustee with respect to the
Securities of any series takes office, the Holders of a majority in principal
amount of the Securities of such series may appoint a successor Trustee to
replace the successor Trustee appointed by the Company.
If a successor Trustee with respect to the Securities of any
series does not take office within 60 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Company or the Holders of at least 10%
in principal amount of the then outstanding Securities of such series may
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
If the Trustee with respect to the Securities of a series
fails to comply with Section 7.10, any Holder of Securities of such series may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee with respect to the Securities of such
series.
In case of the appointment of a successor Trustee with
respect to all Securities, each such successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee and to the Company.
Thereupon the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and
duties of the retiring Trustee under this Indenture. The successor Trustee
shall mail a notice of its succession to Holders. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor Trustee,
subject to the lien provided for in Section 7.07.
In case of the appointment 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 (but not all) series shall execute and deliver an indenture
supplemental hereto in which each successor Trustee shall accept such
appointment and that (1) shall confer to each successor Trustee all the rights,
powers 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) if the retiring Trustee is not retiring with respect to all
Securities, shall confirm that all the rights, powers 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. Nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust, and 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. Upon the execution and delivery of such
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supplemental indenture, the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee shall have all the rights, powers 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. On the request of the Company or any
successor Trustee, such retiring Trustee shall transfer to such successor
Trustee all property held by such retiring Trustee as Trustee with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates.
Notwithstanding replacement of the Trustee or Trustees
pursuant to this Section 7.08, the obligations of the Company under Section
7.07 shall continue for the benefit of the retiring Trustee or Trustees.
Section 7.09 Successor Trustee by Merger, etc.
Subject to Section 7.10, if the Trustee consolidates, merges
or converts into, or transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation without any further
act shall be the successor Trustee; provided, however, that in the case of a
transfer of all or substantially all of its corporate trust business to another
corporation, the transferee corporation expressly assumes all of the Trustee's
liabilities hereunder.
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; and in case at that time any of
the Securities shall not have been authenticated, any successor to the Trustee
may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor to the Trustee; and in all such cases
such certificates shall have the full force which it is anywhere in the
Securities or in this Indenture provided that the certificate of the Trustee
shall have.
Section 7.10 Eligibility; Disqualification.
There shall at all times be a Trustee hereunder which shall
be a corporation organized and doing business under the laws of the United
States, any State thereof or the District of Columbia and authorized under such
laws to exercise corporate trust power, shall be subject to supervision or
examination by Federal or State (or the District of Columbia) authority and
shall have, or be a Subsidiary of a bank or bank holding company having, a
combined capital and surplus of at least $50 million as set forth in its most
recent published annual report of condition.
The Indenture shall always have a Trustee who satisfies the
requirements of TIA Sections 310(a)(1), 310(a)(2) and 310(a)(5). The Trustee is
subject to and shall comply with the provisions of TIA Section 310(b) during the
period of time required by this Indenture. Nothing in this Indenture shall
prevent the Trustee from filing with the SEC the application referred to in the
penultimate paragraph of TIA Section 310(b).
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Section 7.11 Preferential Collection of Claims Against
Company.
The Trustee is subject to and shall comply with the
provisions of TIA Section 311(a), excluding any creditor relationship listed in
TIA Section 311(b). A Trustee who has resigned or been removed shall be subject
to TIA Section 311(a) to the extent indicated therein.
ARTICLE VIII
DISCHARGE OF INDENTURE
Section 8.01 Termination of Company's Obligations.
(a) Except as otherwise specified, as contemplated by Section
2.01, for Securities of any series, this Indenture shall cease to be of further
effect with respect to the Securities of a series (except that the Company's
obligations under Section 7.07, the Trustee's and Paying Agent's obligations
under Section 8.03 and the rights, powers, protections and privileges accorded
the Trustee under Article VII shall survive), and the Trustee, on demand of the
Company, shall execute proper instruments acknowledging the satisfaction and
discharge of this Indenture with respect to the Securities of such series,
when:
(1) either
(A) all outstanding Securities of such series
theretofore authenticated and issued (other than destroyed,
lost or stolen Securities that have been replaced or paid)
have been delivered to the Trustee for cancellation; or
(B) all outstanding Securities of such series not
theretofore delivered to the Trustee for cancellation:
(i) have become due and payable, or
(ii) will become due and payable at
their Stated Maturity 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 by
the Trustee in the name, and at the
expense, of the Company,
and the Company has irrevocably deposited or caused to be
deposited with the Trustee as funds (immediately available to
the Holders in the case of clause (i)) in trust for such
purpose (x) cash in an amount, or (y) Government Obligations,
maturing as to principal and interest at such times and in
such amounts as will ensure
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the availability of cash in an amount or (z) a combination
thereof, which will be sufficient, in the opinion (in the
case of clauses (y) and (z)) of a nationally recognized firm
of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge the entire indebtedness on the Securities of such
series for principal and any interest and any Additional
Amounts to the date of such deposit (in the case of
Securities which have become due and payable) or for
principal, premium, if any, and interest and any Additional
Amounts to the Stated Maturity or Redemption Date, as the
case may be; or
(C) the Company has properly fulfilled such other
means of satisfaction and discharge as is specified, as
contemplated by Section 2.01, to be applicable to the
Securities of such series;
(2) the Company has paid or caused to be paid all other sums
payable by it hereunder with respect to the Securities of such series;
and
(3) the Company has delivered to the Trustee an Officers'
Certificate stating that all conditions precedent to satisfaction and
discharge of this Indenture with respect to the Securities of such
series have been complied with, together with an Opinion of Counsel to
the same effect.
(b) Unless this Section 8.01(b) is specified as not being
applicable to Securities of a series as contemplated by Section 2.01, the
Company may terminate certain of its obligations under this Indenture
("covenant defeasance") with respect to the Securities of a series if:
(1) the Company has irrevocably deposited or caused to be
irrevocably deposited with the Trustee as trust funds in trust for the
purpose of making the following payments, specifically pledged as
security for and dedicated solely to the benefit of the Holders of
Securities of such series (i) money in the currency in which payment
of the Securities of such series is to be made in an amount, or (ii)
Government Obligations with respect to such series, maturing as to
principal and interest at such times and in such amounts (without
consideration of the reinvestment of any such amounts) as will ensure
the availability of money in the currency in which payment of the
Securities of such series is to be made in an amount or (iii) a
combination thereof, that is sufficient, in the opinion (in the case
of clauses (ii) and (iii)) of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay, after payment of all taxes
of other charges or assessments in respect thereof payable by the
Trustee, the principal of and premium (if any) and any interest and
Additional Amounts on all Securities of such series on each date that
such principal, premium (if any), interest and Additional Amounts is
due and payable and (at the Stated Maturity thereof or upon redemption
as provided in Section 8.01(e)) to pay all other sums payable by it
hereunder; provided that the Trustee shall have been irrevocably
instructed to apply such money and/or the proceeds of such Government
Obligations to the payment of said principal, premium (if any),
interest and
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Additional Amounts with respect to the Securities of such series as
the same shall become due;
(2) the Company has delivered to the Trustee an Officers'
Certificate stating that all conditions precedent to satisfaction and
discharge of this Indenture with respect to the Securities of such
series have been complied with, and an Opinion of Counsel to the same
effect;
(3) 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;
(4) the Company shall have delivered to the Trustee an
Opinion of Counsel from counsel reasonably acceptable to the Trustee
or a tax ruling to the effect that the Holders of Securities of such
series will not recognize income, gain or loss for Federal income tax
purposes as a result of the Company's exercise of its option under
this Section 8.01(b) and will be subject to Federal income tax on the
same amount and in the same manner and at the same times as would have
been the case if such option had not been exercised;
(5) the Company has complied with any additional conditions
specified pursuant to Section 2.01 to be applicable to the discharge
of Securities of such series pursuant to this Section 8.01;
(6) such deposit and discharge shall not cause the Trustee to
have a conflicting interest as defined in TIA Section 310(b); and
(7) the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that after the passage of 91 days
following the deposit, the trust funds will not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally.
In such event, this Indenture shall cease to be of further
effect (except as set forth in this paragraph), and the Trustee, on demand of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge under this Indenture. However, the Company's obligations in Sections
2.05, 2.06, 2.07, 2.08, 2.09, 4.01, 4.02, 5.01, 7.07, 7.08 and 8.04, the
Trustee's and Paying Agent's obligations in Section 8.03 and the rights,
powers, protections and privileges accorded the Trustee under Article VII shall
survive until all Securities of such series are no longer outstanding.
Thereafter, only the Company's obligations in Section 7.07 and the Trustee's
and Paying Agent's obligations in Section 8.03 shall survive with respect to
Securities of such series.
After such irrevocable deposit made pursuant to this Section
8.01(b) and satisfaction of the other conditions set forth herein, the Trustee
upon request shall acknowledge in writing the discharge of the Company's
obligations under this Indenture with respect to the Securities of such series
except for those surviving obligations specified above.
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In order to have money available on a payment date to pay
principal of or premium (if any) on or interest or Additional Amounts on the
Securities, the Government Obligations shall be payable as to principal or
interest on or before such payment date in such amounts as will provide the
necessary money.
(c) If the Company has previously complied or is concurrently
complying with Section 8.01(b) (other than any additional conditions specified
pursuant to Section 2.01 that are expressly applicable only to covenant
defeasance) with respect to Securities of a series, then, unless this Section
8.01(c) is specified as not being applicable to Securities of such series as
contemplated by Section 2.01, the Company may elect to be discharged ("legal
defeasance") from its obligations to make payments with respect to Securities
of such series, if:
(1) no Default or Event of Default under clauses (5) and (6)
of Section 6.01 hereof shall have occurred at any time during the
period ending on the 91st day after the date of deposit contemplated
by Section 8.01(b) (it being understood that this condition shall not
be deemed satisfied until the expiration of such period);
(2) unless otherwise specified with respect to Securities of
such series as contemplated by Section 2.01, the Company has delivered
to the Trustee an Opinion of Counsel from counsel reasonably
acceptable to the Trustee to the effect referred to in Section
8.01(b)(4) with respect to such legal defeasance;
(3) the Company has complied with any other conditions
specified pursuant to Section 2.01 to be applicable to the legal
defeasance of Securities of such series pursuant to this Section
8.01(c); and
(4) the Company has delivered to the Trustee a Company
Request requesting such legal defeasance of the Securities of such
series and an Officers' Certificate stating that all conditions
precedent with respect to such legal defeasance of the Securities of
such series have been complied with, together with an Opinion of
Counsel to the same effect.
In such event, the Company will be discharged from its
obligations under this Indenture and the Securities of such series to pay
principal of, premium (if any) and interest on, and any Additional Amounts with
respect to Securities of such series, the Company's obligations under Sections
4.01, 4.02 and 5.01 shall terminate with respect to such Securities, and the
entire indebtedness of the Company evidenced by such Securities shall be deemed
paid and discharged.
(d) If and to the extent additional or alternative means of
satisfaction, discharge or defeasance of Securities of a series are specified
to be applicable to such series as contemplated by Section 2.01, the Company
may terminate any or all of its obligations under this Indenture with respect
to Securities of a series and any or all of its obligations under the
Securities of such series if it fulfills such other means of satisfaction and
discharge as may be so specified, as contemplated by Section 2.01, to be
applicable to the Securities of such series.
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(e) If Securities of any series subject to subsections (a),
(b), (c) or (d) of this Section 8.01 are to be redeemed prior to their Stated
Maturity, whether pursuant to any optional redemption provisions or in
accordance with any mandatory or optional sinking fund provisions, the terms of
the applicable trust arrangement shall provide for such redemption, and the
Company shall make such arrangements as are reasonably satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company.
Section 8.02 Application of Trust Money.
The Trustee or a trustee reasonably satisfactory to the
Trustee and the Company shall hold in trust money or Government Obligations
deposited with it pursuant to Section 8.01 hereof. It shall apply the deposited
money and the money from Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of principal of, premium (if any)
and interest on and any Additional Amounts with respect to the Securities of
the series with respect to which the deposit was made.
Section 8.03 Repayment to Company.
The Trustee and the Paying Agent shall promptly pay to the
Company at any time upon the written request of the Company any excess money or
Government Obligations (or proceeds therefrom) held by them.
Subject to the requirements of any applicable abandoned
property laws, the Trustee and the Paying Agent shall pay to the Company upon
written request any money held by them for the payment of principal, premium
(if any), interest or any Additional Amounts that remain unclaimed for two
years after the date upon which such payment shall have become due. After
payment to the Company, Holders entitled to the money must look to the Company
for payment as general creditors unless an applicable abandoned property law
designates another Person, and all liability of the Trustee and the Paying
Agent with respect to such money shall cease.
Section 8.04 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any
money or Government Obligations deposited with respect to Securities of any
series in accordance with Section 8.01 by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the
obligations of the Company under this Indenture with respect to the Securities
of such series and under the Securities of such series shall be revived and
reinstated as though no deposit had occurred pursuant to Section 8.01 until
such time as the Trustee or the Paying Agent is permitted to apply all such
money or Government Obligations in accordance with Section 8.01; provided,
however, that if the Company has made any payment of principal of, premium (if
any) or interest on or any Additional Amounts with respect to any Securities
because of the reinstatement of its obligations, the Company shall be
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subrogated to the rights of the Holders of such Securities to receive such
payment from the money or Government Obligations held by the Trustee or the
Paying Agent.
ARTICLE IX
SUPPLEMENTAL INDENTURES AND
AMENDMENTS
Section 9.01 Without Consent of Holders.
The Company and the Trustee may amend or supplement this
Indenture or the Securities without the consent of any Holder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Section 5.01;
(3) to provide for uncertificated Securities in addition to
or in place of certificated Securities, or to provide for the issuance
of bearer Securities (with or without coupons);
(4) to provide any security for any series of Securities;
(5) to comply with any requirement in order to effect or
maintain the qualification of this Indenture under the TIA;
(6) 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;
(7) to add any additional Events of Default with respect to
all or any series of the Securities (and, if such Events of Default
are applicable to less than all series of Securities, specifying the
series to which such Events of Default are applicable);
(8) 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 outstanding Security of any series
created prior to the execution of such amendment or supplemental
indenture that is adversely affected in any material respect by such
change in or elimination of such provision;
(9) to establish the form or terms of Securities of any
series as permitted by Section 2.01;
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(10) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Section 8.01; provided, however, that any such action shall not
adversely affect the interest of the Holders of Securities of such
series or any other series of Securities in any material respect; or
(11) 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 7.08.
Upon the request of the Company, accompanied by a Board
Resolution, and upon receipt by the Trustee of the documents described in
Section 9.06, the Trustee shall, subject to Section 9.06, join with the Company
in the execution of any supplemental indenture authorized or permitted by the
terms of this Indenture and make any further appropriate agreements and
stipulations that may be therein contained. After an amendment, supplement or
waiver under this Section 9.01 becomes effective, the Company shall mail to the
Holders of each Security affected thereby a notice briefly describing the
amendment, supplement or waiver. Any failure of the Company to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such amendment, supplement or waiver.
Section 9.02 With Consent of Holders.
Except as provided below in this Section 9.02, the Company
and the Trustee may amend or supplement this Indenture with the written consent
(including consents obtained in connection with a tender offer or exchange
offer for Securities of any one or more series or all series or a solicitation
of consents in respect of Securities of any one or more series or all series,
provided that in each case such offer or solicitation is made to all Holders of
then outstanding Securities of each such series (but the terms of such offer or
solicitation may vary from series to series)) of the Holders of at least a
majority in principal amount of the then outstanding Securities of all series
affected by such amendment or supplement (acting as one class).
Upon the request of the Company, accompanied by a Board
Resolution, and upon the filing with the Trustee of evidence of the consent of
the Holders as aforesaid, and upon receipt by the Trustee of the documents
described in Section 9.06, the Trustee shall join with the Company in the
execution of such amendment or supplemental indenture.
It shall not be necessary for the consent of the Holders
under this Section 9.02 to approve the particular form of any proposed
amendment, supplement or waiver, but it shall be sufficient if such consent
approves the substance thereof.
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The Holders of a majority in principal amount of the then
outstanding Securities of one or more series may waive compliance in a
particular instance by the Company with any provision of this Indenture with
respect to Securities of such series (including waivers obtained in connection
with a tender offer or exchange offer for Securities of such series or a
solicitation of consents in respect of Securities of such series, provided that
in each case such offer or solicitation is made to all Holders of then
outstanding Securities of such series (but the terms of such offer or
solicitation may vary from series to series)).
However, without the consent of each Holder affected, an
amendment, supplement or waiver under this Section 9.02 may not:
(1) reduce the amount of Securities whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the rate of or change the time for payment of
interest, including default interest, on any Security;
(3) reduce the principal of, premium on or any mandatory
sinking fund payment with respect to, or change the Stated Maturity
of, any Security or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to
Section 6.02;
(4) reduce the premium, if any, payable upon the redemption
of any Security or change the time at which any Security may or shall
be redeemed;
(5) change any obligation of the Company to pay Additional
Amounts with respect to any Security;
(6) change the coin or currency in which any Security or any
premium, interest or Additional Amounts with respect thereto are
payable;
(7) impair the right to institute suit for the enforcement of
any payment of principal of, premium (if any) or interest on or any
Additional Amounts with respect to any Security pursuant to Sections
6.07 and 6.08, except as limited by Section 6.06;
(8) make any change in the percentage of principal amount of
Securities necessary to waive compliance with certain provisions of
this Indenture pursuant to Section 6.04 or 6.07 or make any change in
this sentence of Section 9.02; or
(9) waive a continuing Default or Event of Default in the
payment of principal of, premium (if any) or interest on or Additional
Amounts with respect to the Securities.
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A supplemental indenture that changes or eliminates any
covenant or other provision of this Indenture that has expressly been included
solely for the benefit of one or more particular series of Securities, or that
modifies the rights of the Holders of 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.
The right of any Holder to participate in any consent
required or sought pursuant to any provision of this Indenture (and the
obligation of the Company to obtain any such consent otherwise required from
such Holder) may be subject to the requirement that such Holder shall have been
the Holder of record of any Securities with respect to which such consent is
required or sought as of a date identified by the Company in a notice furnished
to Holders in accordance with the terms of this Indenture.
Section 9.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the
Securities shall comply in form and substance with the TIA as then in effect.
Section 9.04 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the
same debt as the consenting Holder's Security, even if notation of the consent
is not made on any Security. However, any such Holder or subsequent Holder may
revoke the consent as to his or her Security or portion of a Security if the
Trustee receives written notice of revocation before the date the amendment,
supplement or waiver becomes effective. An amendment, supplement or waiver
becomes effective in accordance with its terms and thereafter binds every
Holder.
The Company may, but shall not be obligated to, fix a record
date (which need not comply with Section 316(c) of the TIA) for the purpose of
determining the Holders of Securities of any series entitled to consent to any
amendment, supplement or waiver or to take any other action under this
Indenture. If a record date is fixed, then notwithstanding the provisions of
the immediately preceding paragraph, those Persons who were Holders at such
record date (or their duly designated proxies), and only those Persons, shall
be entitled to consent to such amendment, supplement or waiver or to revoke any
consent previously given, whether or not such Persons continue to be Holders
after such record date. No consent shall be valid or effective for more than 90
days after such record date unless consents from Holders of the principal
amount of Securities required hereunder for such amendment or waiver to be
effective shall have also been given and not revoked within such 90-day period.
After an amendment, supplement or waiver becomes effective,
it shall bind every Holder, unless it is of the type described in any of
clauses (1) through (9) of Section 9.01 hereof. In
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such case, the amendment, supplement or waiver shall bind each Holder who has
consented to it and every subsequent Holder that evidences the same debt as the
consenting Holder's Security.
Section 9.05 Notation on or Exchange of Securities.
If an amendment or supplement changes the terms of an
outstanding Security, the Company may require the Holder of the Security to
deliver it to the Trustee. The Trustee may place an appropriate notation on the
Security at the request of the Company regarding the changed terms and return
it to the Holder. Alternatively, if the Company so determines, the Company in
exchange for the Security shall issue and the Trustee shall authenticate a new
Security that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect the validity of such
amendment or supplement.
Securities of any series authenticated and delivered after
the execution of any amendment or supplement may, and shall if required by the
Company, bear a notation in form approved by the Company as to any matter
provided for in such amendment or supplement.
Section 9.06 Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment or supplement authorized
pursuant to this Article if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it
does, the Trustee may, but need not, sign it. In signing or refusing to sign
such amendment to supplement, the Trustee shall be entitled to receive, and,
subject to Section 7.01 hereof, shall be fully protected in relying upon, an
Opinion of Counsel provided at the expense of the Company as conclusive
evidence that such amendment or supplement is authorized or permitted by this
Indenture, that it is not inconsistent herewith, and that it will be valid and
binding upon the Company in accordance with its terms.
ARTICLE X
MISCELLANEOUS
Section 10.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by operation of TIA Section 318(c), the
imposed duties shall control.
Section 10.02 Notices.
Any notice or communication by the Company or the Trustee to
the other is duly given if in writing and delivered in person or mailed by
first-class mail (registered or certified, return receipt requested), telex,
facsimile or overnight air courier guaranteeing next day delivery, to the
other's address:
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If to the Company:
Seitel, Inc.
00 Xxxxx Xxxxxx Xxxx
0xx Xxxxx, Xxxx Xxxxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
If to the Trustee:
The First National Bank of Chicago
0 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Mail Suite IL1-0126
Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt acknowledged, if by facsimile; and
the next Business Day after timely delivery to the courier, if sent by
overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by
first-class mail, postage prepaid, to the Holder's address shown on the
register kept by the Registrar. Failure to mail a notice or communication to a
Holder or any defect in it shall not affect its sufficiency with respect to
other Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the
addressee receives it, except in the case of notice to the Trustee, it is duly
given only when received.
If the Company mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.
All notices or communications, including without limitation
notices to the Trustee or the Company by Holders, shall be in writing, except
as otherwise set forth herein.
In case by reason of the suspension of regular mail service,
or by reason of any other cause, it shall be impossible to mail any notice
required by this Indenture, then such method of
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notification as shall be made with the approval of the Trustee shall constitute
a sufficient mailing of such notice.
Section 10.03 Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
Section 10.04 Certificate and Opinion as to Conditions
Precedent.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall, if requested by the
Trustee, furnish to the Trustee at the expense of the Company;
(1) an Officers' Certificate (which shall include the
statements set forth in Section 10.05) stating that, in the opinion of
the signers, all conditions precedent and covenants, if any, provided
for in this Indenture relating to the proposed action have been
complied with; and
(2) an Opinion of Counsel (which shall include the statements
set forth in Section 10.05 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been complied with.
Section 10.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions of
TIA Section 314(e)) and shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or
she has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
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(4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
Section 10.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or the Paying Agent may take reasonable rules
and set reasonable requirements for its functions.
Section 10.07 Legal Holidays.
If a payment date is a Legal Holiday at a Place of Payment,
payment may be made at that place on the next succeeding day that is not a
Legal Holiday, and no interest shall accrue for the intervening period.
Section 10.08 No Recourse Against Others.
A director, officer, employee, stockholder, partner or other
owner of the Company or the Trustee, as such, shall not have any liability for
any obligations of the Company under the Securities or for any obligations of
the Company or the Trustee under this Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. Each Holder by
accepting a Security waives and releases all such liability. The waiver and
release shall be part of the consideration for the issue of Securities.
Section 10.09 Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW.
Section 10.10 No Adverse Interpretation of Other
Agreements.
This Indenture may not be used to interpret another
indenture, loan or debt agreement of the Company or any other Subsidiary of the
Company. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
Section 10.11 Successors.
All agreements of the Company in this Indenture and the
Securities shall bind its successors. All agreements of the Trustee in this
Indenture shall bind its successors.
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Section 10.12 Severability.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall, to the fullest extent
permitted by applicable law, not in any way be affected or impaired thereby.
Section 10.13 Counterpart Originals.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
Section 10.14 Table of Contents; Headings; etc.
The table of contents, cross-reference table and headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
Section 10.15 Agent for Service of Process.
The Company hereby designates CT Corporation System,
currently located at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, as its authorized agent
upon whom process may be served in any action, suit or proceeding that may be
instituted in any State or Federal court sitting in the County of New York of
the State of New York pertaining to this Indenture or any matter arising out of
or related to this Indenture, and the Company will accept the jurisdiction of
such court in such action, and waive, to the fullest extent permitted by
applicable law, any defense based upon lack of personal jurisdiction or venue
or forum non-conveniens. The Company may and shall (to the extent the process
agent ceases to be able to be served on the basis contemplated herein), by
written notice to the Trustee, designate such additional or alternative agents
for service of process under this Section 10.15 that (i) maintains an office
located in the Borough of Manhattan, The City of New York in the State of New
York, (ii) are either (a) counsel for the Company or (b) a corporate service
company which acts as agent for service of process for other persons in the
ordinary course of its business and (iii) agrees to act as agent for service of
process in accordance with this Section 10.15. Such notice shall identify the
name of such agent for process and the address of such agent for process in the
Borough of Manhattan, The City of New York, State of New York. Upon the request
of any holder of a Debenture, the Trustee shall deliver such information to
such holder. Notwithstanding the foregoing, there shall, at all times, be at
least one agent for service of process for the Company appointed and acting in
accordance with this Section 10.15. A copy of any such process shall be sent or
given to the Company at the address for notices specified in Section 10.02
hereof. The Company shall maintain the designation of such authorized agent
until two years after termination of the Company's obligation under this
Indenture pursuant to Section 8.01.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
SEITEL, INC.
By:
-----------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:
-----------------------------------
Name:
Title:
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SEITEL, INC.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF , 1999
---------------------
Section of
Trust Indenture Section(s) of
Act of 1939 Indenture
----------- ---------
Section 310 (a)(1)................................................................................................7.10
(a)(2)................................................................................................7.10
(a)(3)......................................................................................Not Applicable
(a)(4)......................................................................................Not Applicable
(a)(5)................................................................................................7.10
(b).............................................................................................7.08, 7.10
Section 311 (a)...................................................................................................7.11
(b)...................................................................................................7.11
(c).........................................................................................Not Applicable
Section 312 (a)...................................................................................................2.07
(b)..................................................................................................10.03
(c)..................................................................................................10.03
Section 313 (a)...................................................................................................7.06
(b)...................................................................................................7.06
(c)...................................................................................................7.06
(d)...................................................................................................7.06
Section 314 (a).............................................................................................4.03, 4.04
(b).........................................................................................Not Applicable
(c)(1)...............................................................................................10.04
(c)(2)...............................................................................................10.04
(c)(3)......................................................................................Not Applicable
(d).........................................................................................Not Applicable
(e)..................................................................................................10.05
Section 315 (a)................................................................................................7.01(b)
(b)...................................................................................................7.05
(c)................................................................................................7.01(a)
(d)................................................................................................7.01(c)
(d)(1)..........................................................................................7.01(c)(1)
(d)(2)..........................................................................................7.01(c)(2)
(d)(3)..........................................................................................7.01(c)(3)
(e)...................................................................................................6.11
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SEITEL, INC.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF , 1999
---------------------
Section of
Trust Indenture Section(s) of
Act of 1939 Indenture
----------- ---------
Section 316 (a)(1)(A).............................................................................................6.05
(a)(1)(B).............................................................................................6.04
(a)(2)......................................................................................Not Applicable
(a)(last sentence)....................................................................................2.11
(b)...................................................................................................6.07
Section 317 (a)(1)................................................................................................6.08
(a)(2)................................................................................................6.09
(b)...................................................................................................2.06
Section 318 (a)..................................................................................................10.01
-------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
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