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EXHIBIT 4.3
XXXXXXXXX ENERGY, INC.
ISSUER
TO
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TRUSTEE
INDENTURE
DATED AS OF _________________
DEBT SECURITIES
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TABLE OF CONTENTS
Page
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ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
1.1 DEFINITIONS..................................................................1
1.2 COMPLIANCE CERTIFICATES AND OPINIONS.........................................8
1.3 FORM OF DOCUMENTS DELIVERED TO TRUSTEE.......................................8
1.4 ACTS OF HOLDERS; RECORD DATES................................................9
1.5 NOTICES, ETC., TO TRUSTEE AND COMPANY.......................................10
1.6 NOTICE TO HOLDERS: WAIVER...................................................10
1.7 CONFLICT WITH APPLICABLE LEGISLATION........................................11
1.8 EFFECT OF HEADINGS AND TABLE OF CONTENTS....................................11
1.9 SUCCESSORS AND ASSIGNS......................................................11
1.10 SEPARABILITY CLAUSE.........................................................11
1.11 BENEFITS OF INDENTURE.......................................................11
1.12 GOVERNING LAW...............................................................11
1.13 LEGAL HOLIDAYS..............................................................11
1.14 CORPORATE OBLIGATIONS.......................................................12
ARTICLE 2
SECURITY FORMS
2.1 FORMS GENERALLY.............................................................12
2.2 FORM OF FACE OF SECURITY....................................................12
2.3 FORM OF REVERSE OF SECURITY.................................................14
2.4 FORM OF LEGEND FOR GLOBAL SECURITIES........................................19
2.5 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.............................19
2.6 SECURITIES IN GLOBAL FORM...................................................19
2.7 BOOK-ENTRY SECURITIES.......................................................20
2.8 FORM OF CONVERSION NOTICE...................................................22
ARTICLE 3
THE SECURITIES
3.1 AMOUNT UNLIMITED; ISSUABLE IN SERIES........................................22
3.2 DENOMINATIONS...............................................................25
3.3 EXECUTION, AUTHENTICATION, DELIVERY AND DATING..............................26
3.4 TEMPORARY SECURITIES........................................................27
3.5 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.........................27
3.6 MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES............................29
3.7 PAYMENT OF INTEREST: INTEREST RIGHTS PRESERVED..............................29
3.8 PERSONS DEEMED OWNERS.......................................................31
3.9 CANCELLATION................................................................31
3.10 COMPUTATION OF INTEREST.....................................................31
3.11 PAYMENT OF ADDITIONAL AMOUNTS...............................................31
[3.12 DESIGNATION AS SENIOR INDEBTEDNESS].........................................32
[3.12 DESIGNATION AS SENIOR SUBORDINATED INDEBTEDNESS]............................33
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ARTICLE 4
SATISFACTION AND DISCHARGE
4.1 SATISFACTION AND DISCHARGE OF INDENTURE.....................................33
4.2 APPLICATION OF TRUST MONEY..................................................34
ARTICLE 5
REMEDIES
5.1 EVENTS OF DEFAULT...........................................................34
5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT..........................36
5.3 SUITS FOR ENFORCEMENT BY TRUSTEE............................................37
5.4 TRUSTEE MAY FILE PROOFS OF CLAIM............................................37
5.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.................38
5.6 APPLICATION OF MONEY COLLECTED..............................................38
5.7 LIMITATION ON SUITS.........................................................38
5.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM
AND INTEREST................................................................39
5.9 RESTORATION OF RIGHTS AND REMEDIES..........................................39
5.10 RIGHTS AND REMEDIES CUMULATIVE..............................................39
5.11 DELAY OR OMISSION NOT WAIVER................................................39
5.12 CONTROL BY HOLDERS..........................................................40
5.13 WAIVER OF PAST DEFAULTS.....................................................40
5.14 UNDERTAKING FOR COSTS.......................................................40
5.15 WAIVER OF CERTAIN COVENANTS.................................................40
ARTICLE 6
THE TRUSTEE
6.1 CERTAIN DUTIES AND RESPONSIBILITIES.........................................41
6.2 NOTICE OF DEFAULTS..........................................................41
6.3 CERTAIN RIGHTS OF TRUSTEE...................................................41
6.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES......................42
6.5 MAY HOLD SECURITIES.........................................................42
6.6 MONEY HELD IN TRUST.........................................................42
6.7 COMPENSATION AND REIMBURSEMENT..............................................42
6.8 DISQUALIFICATION; CONFLICTING INTERESTS.....................................43
6.9 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.....................................43
6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR...........................43
6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR......................................45
6.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.................45
6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY...........................46
6.14 APPOINTMENT OF AUTHENTICATING AGENT.........................................46
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
7.1 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS...................47
7.2 PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS......................48
7.3 REPORTS BY TRUSTEE..........................................................48
7.4 REPORTS BY COMPANY..........................................................48
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ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
8.1 COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS........................48
8.2 SUCCESSOR SUBSTITUTED.......................................................49
ARTICLE 9
SUPPLEMENTAL INDENTURES
9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS..........................50
9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.............................51
9.3 EXECUTION OF SUPPLEMENTAL INDENTURES........................................52
9.4 EFFECT OF SUPPLEMENTAL INDENTURES...........................................52
9.5 REVOCATION AND EFFECT OF CONSENTS...........................................52
9.6 CONFORMITY WITH APPLICABLE LEGISLATION......................................52
9.7 REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES..........................52
9.8 WAIVER OF COMPLIANCE BY HOLDERS.............................................53
9.9 NOTICE OF SUPPLEMENTAL INDENTURE............................................53
ARTICLE 10
COVENANTS
10.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST..................................53
10.2 MAINTENANCE OF OFFICE OR AGENCY.............................................53
10.3 MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST...........................54
10.4 STATEMENT BY OFFICERS AS TO DEFAULT.........................................55
10.5 EXISTENCE...................................................................55
10.6 WAIVER OF CERTAIN COVENANTS.................................................55
10.7 LIMITATION ON SUBORDINATED INDEBTEDNESS.....................................55
ARTICLE 11
REDEMPTION OF SECURITIES
11.1 APPLICABILITY OF ARTICLE....................................................56
11.2 ELECTION TO REDEEM; NOTICE TO TRUSTEE.......................................56
11.3 SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED...........................56
11.4 NOTICE OF REDEMPTION........................................................57
11.5 DEPOSIT OF REDEMPTION PRICE.................................................58
11.6 SECURITIES PAYABLE ON REDEMPTION DATE.......................................58
11.7 SECURITIES REDEEMED IN PART.................................................58
ARTICLE 12
SINKING FUNDS
12.1 APPLICABILITY OF ARTICLE....................................................58
12.2 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.......................59
12.3 REDEMPTION OF SECURITIES FOR SINKING FUND...................................59
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ARTICLE 13
DEFEASANCE AND COVENANT DEFEASANCE
13.1 COMPANY'S OPTION TO EFFECT DEFEASANCE AND COVENANT DEFEASANCE...............59
13.2 DEFEASANCE AND DISCHARGE....................................................59
13.3 COVENANT DEFEASANCE.........................................................60
13.4 CONDITIONS TO DEFEASANCE AND COVENANT DEFEASANCE............................60
13.5 DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS..............................................62
13.6 REINSTATEMENT...............................................................62
ARTICLE 14
CONVERSION OF SECURITIES
14.1 APPLICABILITY OF ARTICLE....................................................63
14.2 EXERCISE OF CONVERSION PRIVILEGE............................................63
14.3 NO FRACTIONAL SHARES........................................................64
14.4 ADJUSTMENT OF CONVERSION PRICE..............................................64
14.5 NOTICE OF CERTAIN CORPORATE ACT.............................................65
14.6 RESERVATION OF SHARES OF COMMON SHARES......................................65
14.7 PAYMENT OF CERTAIN TAXES UPON CONVERSION....................................65
14.8 NONASSESSABILITY............................................................66
14.9 EFFECT OF CONSOLIDATION OR MERGER ON CONVERSION PRIVILEGE...................66
14.10 DUTIES OF TRUSTEE REGARDING CONVERSION......................................66
14.11 REPAYMENT OF CERTAIN FUNDS UPON CONVERSION..................................67
14.12 CANCELLATION OF CONVERTED SECURITIES........................................67
ARTICLE 15
SUBORDINATION
15.1 SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS...............................67
15.2 PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC..............................68
15.3 PRIOR PAYMENT TO SENIOR INDEBTEDNESS UPON ACCELERATION OF SECURITIES........68
15.4 NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT..............................69
15.5 PAYMENT PERMITTED IF NO DEFAULT.............................................70
15.6 SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.....................70
15.7 PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS AND SUBJECT TO
APPLICABLE LAWS.............................................................70
15.8 TRUSTEE TO EFFECTUATE SUBORDINATION.........................................71
15.9 NO WAIVER OF SUBORDINATION PROVISIONS.......................................71
15.10 NOTICE TO TRUSTEE...........................................................71
15.11 RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT..............72
15.12 TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS....................72
15.13 RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS; PRESERVATION
OF TRUSTEE'S RIGHTS.........................................................72
15.14 ARTICLE APPLICABLE TO PAYING AGENTS.........................................72
15.15 DEFEASANCE OF THIS ARTICLE 15...............................................72
15.16 SUBSIDIARIES................................................................73
15.17 RESCISSION..................................................................73
15.18 CERTAIN CONVERSIONS OR EXCHANGES DEEMED PAYMENT.............................73
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ARTICLE 16
MEETINGS OF HOLDERS OF SECURITIES
16.1 PURPOSES FOR WHICH MEETINGS MAY BE CALLED...................................73
16.2 CALL, NOTICE AND PLACE OF MEETINGS..........................................73
16.3 PERSONS ENTITLED TO VOTE AT MEETINGS........................................74
16.4 QUORUM; ACTION..............................................................74
16.5 DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF MEETINGS.........75
16.6 COUNTING VOTES AND RECORDING ACTION OF MEETINGS.............................75
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INDENTURE, dated as of _________________, between XXXXXXXXX ENERGY,
INC, a corporation duly incorporated and existing under the laws of Delaware,
having its registered office at 0000 Xxxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000 (herein
called the "Company"), and ________________________________, a ________________
corporation, as Trustee hereunder (herein called the "Trustee").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of unsecured debentures,
notes or other evidences of indebtedness (herein called the "Securities") to be
issued by the Company, unlimited as to principal amount, to bear such rates of
interest, to mature at such time or times, to be issued in one or more series
and to have such other provisions as shall be fixed as hereinafter provided.
All things necessary to make this Indenture a valid agreement of the
Company in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of a series thereof,
as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
1.1 DEFINITIONS
For all purposes of this Indenture and of any indenture supplemental
hereto, except as otherwise expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the singular;
(b) all other terms used herein which are defined in the TRUST
INDENTURE ACT, either directly or by reference herein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted at the date of such computation; and
(d) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"ACT," when used with respect to any Holder, has the meaning specified
in Section 1.4.
"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 the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the
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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" have meanings correlative to the foregoing.
"APPLICABLE LEGISLATION" means, with respect to any series of
Securities which was required to be registered under the SECURITIES ACT, the
TRUST INDENTURE ACT.
"AUTHENTICATING AGENT" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"BOARD OF DIRECTORS" means, when used with reference to the Company,
the board of directors of the Company or any committee of the board of directors
of the Company empowered to act for the Company with respect to this Indenture.
"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, when used with respect to any Place of Payment,
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close, except as may otherwise be provided in the form of
Securities of any particular series pursuant to the provisions of this
Indenture.
"COMMISSION" means the Securities and Exchange Commission, as from time
to time constituted, or, if at any time after the execution of this instrument
such Commission is not existing and performing the duties now assigned to it
under the TRUST INDENTURE ACT, then the body performing such duties at such
time.
"COMMON SHARES" or "COMMON SHARES OF THE COMPANY" means the Common
Shares of the Company and the shares of any other class of the Company which has
no preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company. However, subject to the
provisions of 3.1(s) and Section 14.9, shares issuable on conversion of
Securities shall include only shares of the class designated as Common Shares in
the articles of the Company at the date of this instrument or shares of any
class or classes resulting from any reclassification or reclassifications
thereof and which have no preference in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company and which are not subject to redemption by the
Company; PROVIDED, HOWEVER, that if at any time there shall be more than one
such resulting class, the shares of each such class then so issuable shall be
substantially in the proportion which the total number of shares of such class
resulting from all such reclassifications bears to the total number of shares of
all such classes resulting from all such reclassifications.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture and thereafter "Company"
shall mean such successor Person.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Company by its Chairman of the Board, President or a
Vice President, and by its Treasurer, Assistant Treasurer, Controller, Secretary
or Assistant Secretary, and delivered to the Trustee.
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"CONVERSION EVENT" has the meaning specified in Section 5.1.
"CORPORATE TRUST OFFICE" means the principal office of the Trustee in ,
at which at any particular time its corporate trust business shall be conducted.
"CORPORATION" means a corporation, association, company, joint-stock
company, business trust or similar organization.
"COVENANT DEFEASANCE" has the meaning specified in Section 13.3.
"DAYS" means calendar days.
"DEFAULTED INTEREST" has the meaning specified in Section 3.7.
"DEFEASIBLE SERIES" has the meaning specified in Section 13.1.
"DEFEASANCE" has the meaning specified in Section 13.2.
"DEPOSITARY" means, with respect to Securities of any series issuable
in whole or in part in the form of one or more Global Securities, a clearing
agency designated to act as Depositary for such Securities as contemplated by
Section 3.1, that is registered under the EXCHANGE ACT if the Securities of such
series were required to be registered under the EXCHANGE ACT, and that has been
designated as a recognized clearing agency under applicable Canadian securities
legislation if the Securities of such series were distributed by the Company
pursuant to a prospectus filed with Canadian securities regulatory authorities.
"EVENT OF DEFAULT" has the meaning specified in Section 5.1.
"EXCHANGE ACT" means the United States SECURITIES EXCHANGE ACT of 1934,
as amended from time to time, and any statute successor thereto.
"EXCHANGE RATE" has the meaning specified in Section 5.1.
"FLOATING OR ADJUSTABLE RATE PROVISION" means a formula or provision,
specified in or pursuant to a Board Resolution or an indenture supplemental
hereto, providing for the determination, whether pursuant to objective factors
or pursuant to the sole discretion of any Person (including the Company), and
periodic adjustment of the interest rate borne by a Floating or Adjustable Rate
Security.
"FLOATING OR ADJUSTABLE RATE SECURITY" means any Security which
provides for interest thereon at a periodic rate that may vary from time to time
over the term thereof in accordance with a Floating or Adjustable Rate
Provision.
"GLOBAL SECURITY" means a Security that evidences all or part of the
Securities of any series and is authenticated and delivered to, and registered
in the name of, the Depositary for such Securities or a nominee thereof.
"GOVERNMENT OBLIGATIONS" means securities which are (i) direct full
faith and credit obligations of the government which issued the currency in
which the Securities of a particular series are denominated and in which payment
of principal and interest are to be made or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of such
government, the payment of which is unconditionally guaranteed as a full faith
and credit obligation by such government, which, in
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either case, are not callable or redeemable at the option of the issuer thereof,
and shall also include a depository receipt issued by a bank (as defined in
Section 3(a)(2) of the United States SECURITIES ACT of 1933, as amended) as
custodian with respect to any such Government Obligation or a specific payment
of principal of or interest on account of the holder of such depository receipt
from any amount received by the custodian in respect of such Government
Obligation or the specific payment of principal of or interest on such
Government Obligation evidenced by such depository receipt.
"HOLDER" means a Person in whose name a Security is registered in the
Security Register.
"INTERNAL REVENUE CODE" means the Internal Revenue Code as in force as
at the date as of which this instrument was executed; PROVIDED, HOWEVER, that in
the event the Internal Revenue Code is amended after such date, "INTERNAL
REVENUE CODE" means, to the extent required by such amendment, the Internal
Revenue Code, as so amended.
"INDENTURE" means this instrument as originally executed, as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the TRUST INDENTURE ACT that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of any
particular series of Securities established as contemplated by Section 3.1.
"INTEREST PAYMENT DATE" means, when used with respect to any Security,
the Stated Maturity of an installment of interest on such Security.
"MATURITY" means, when used 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 or by
declaration of acceleration, call for redemption or otherwise.
"NOTICE OF DEFAULT" means a written notice of the kind specified in
Section 5.1(d).
"OFFICERS' CERTIFICATE" means, when used with reference to the Company,
a certificate signed on behalf of the Company by any one of the Chairman of the
Board, the Chief Executive Officer, the President or any Vice President of the
Company, and by any one of the Treasurer, the Assistant Treasurer, the
Controller, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee. One of the officers signing an Officers' Certificate
given pursuant to Section 10.4 shall be the principal executive, chief financial
or principal accounting officer of the Company.
"OPINION OF COUNSEL" means a written opinion of counsel (who may be
counsel for the Company and who may be an employee of the Company, except as
otherwise expressly provided in this Indenture) and who shall be acceptable to
the Trustee.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 5.2.
"OUTSTANDING," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, EXCEPT:
(a) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
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(b) Securities, or portions thereof, for whose payment or redemption
money in the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent) for
the Holders of such Securities; PROVIDED THAT, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
(c) Securities as to which Defeasance has been effected pursuant to
Section 13.2; and
(d) Securities which have been replaced pursuant to Section 3.6 or in
exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Trustee proof satisfactory to it
that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company; PROVIDED, HOWEVER, that in
determining whether the Holders of the requisite principal amount of the
Outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder or are present at a meeting of Holders for
quorum purposes, (i) the principal amount of an Original Issue Discount Security
that shall be deemed to be Outstanding shall be the amount of the principal
thereof (excluding premium or penalty, if any) that would be due and payable as
of the date of such determination upon acceleration of the Maturity thereof
pursuant to Section 5.2, (ii) the principal amount of a Security denominated in
one or more foreign currencies or currency units shall be the U.S. dollar
equivalent, determined in the manner provided as contemplated by Section 3.1 on
the date of original issuance of such Security, of the principal amount (or, in
the case of an Original Issue Discount Security, the U.S. dollar equivalent on
the date of original issuance of such Security of the amount determined as
provided in (i) above) of such Security, (iii) if the principal amount payable
at Stated Maturity of any Security is not determinable upon original issuance,
the principal amount of such Security that shall be deemed to be Outstanding
shall be the amount as specified or determined as contemplated by Section 3.1,
and (iv) 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 and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver or upon any such
determination as to the presence of a quorum, only Securities which the Trustee
knows to be so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company, or any
other obligor upon the Securities or any Affiliate of the Company, or of such
other obligor.
"PAYING AGENT" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"PERSON" means any individual, corporation, limited liability company,
partnership, joint venture, trust, association, company, joint-stock company,
business trust, unincorporated organization or government or any agency or
political subdivision thereof.
"PIK SECURITIES" means any series of Securities where interest is
payable, at the election of the Company or a holder of such Securities, in
additional Securities.
"PLACE OF PAYMENT" means, when used with respect to the Securities of
any series, the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 3.1.
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"PREDECESSOR SECURITY" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
[IF APPLICABLE, INSERT -- "PROCEEDING" has the meaning specified in
Section 15.2].
"REDEMPTION DATE" means, when used with respect to any Security to be
redeemed, the date fixed for such redemption by or pursuant to this Indenture;
"REDEMPTION PRICE" means, when used with respect to any Security to be
redeemed, the price at which it is to be redeemed pursuant to this Indenture.
"REGULAR RECORD DATE" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 3.1.
"RESPONSIBLE OFFICER" means, when used with respect to the Trustee, the
chairman, or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the chief executive officer, the president, any vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, the cashier, any assistant cashier, any trust officer or assistant
trust officer, the controller or any assistant controller or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"SECURITIES ACT" means the United States SECURITIES ACT of 1933 as in
force at the date as of which this instrument was executed; PROVIDED, HOWEVER,
that in the event the United States Securities Act of 1933 is amended after such
date, "SECURITIES ACT" means, to the extent required by any such amendments, the
United States Securities Act of 1933, as so amended.
[IF APPLICABLE, INSERT -- "SECURITIES PAYMENT" has the meaning
specified in Section 15.2].
"SECURITY" or "SECURITIES" has the meaning stated in the first recital
of this Indenture and more particularly means any Security or Securities
authenticated and delivered under this Indenture.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective
meanings specified in Section 3.5.
[IF APPLICABLE, INSERT -- "SENIOR INDEBTEDNESS" means, unless otherwise
defined in the applicable indenture supplement, all amounts due on and
obligations in connection with any of the following, whether outstanding at the
date of execution of the Indenture, or thereafter incurred, assumed, guaranteed
or otherwise created (including, without limitation, interest accruing on or
after a bankruptcy or other similar event, whether or not an allowed claim
therein): (a) indebtedness, obligations and other liabilities (contingent or
otherwise) of the Company for money borrowed, or evidenced by bonds, debentures,
notes or similar instruments; (b) reimbursement obligations and other
liabilities (contingent or otherwise) of the Company with respect to letters of
credit or banker's acceptances issued for the account of the Company and
interest rate protection agreements and currency exchange or purchase
agreements; (c) obligations and liabilities (contingent or otherwise) related to
capitalized lease obligations; (d)
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indebtedness, obligations and other liabilities (contingent or otherwise) of the
Company related to agreements or arrangements designed to protect the Company or
any of its Subsidiaries against fluctuations in commodity prices, including,
without limitation, commodity futures contracts or similar hedging instruments;
(e) indebtedness of others of kinds described in the preceding clauses (a)
through (d) that the Company has assumed, guaranteed or otherwise assured the
payment of directly or indirectly; (f) any indebtedness of another Person of the
type described in the preceding clauses (a) through (e) secured by any mortgage,
pledge, lien or other encumbrance on property owned or held by the Company; and
(g) any and all deferrals, renewals, extensions and refundings of, or
amendments, modifications or supplements to, any indebtedness, obligation or
liability described in clauses (a) through (f) whether or not there is any
notice to or consent of the Holders of such series of Securities; unless, in any
case, in the instrument creating or evidencing such indebtedness, obligation,
liability, guaranty, assumption, deferral, renewal, extension or refunding, it
is expressly stated that such indebtedness, obligation, liability, guarantee,
assumption, deferral, renewal, extension or refunding is not senior in right of
payment to the Securities or that such indebtedness is PARI PASSU with or junior
to the Securities; [IF SUBORDINATED INDEBTEDNESS, INSERT -- PROVIDED, HOWEVER,
that any series of Securities designated as Senior Subordinated Indebtedness
shall constitute Senior Indebtedness to any series of Securities designated as
Subordinated Indebtedness].
[IF APPLICABLE, INSERT -- "SENIOR SUBORDINATED INDEBTEDNESS" means the
Securities and any other indebtedness, guarantee or obligation of the Company
that specifically provides that such indebtedness, guarantee or obligation is to
rank PARI PASSU with other Senior Subordinated Indebtedness of the Company and
is not subordinated by its terms to any indebtedness, guarantee or obligation of
the Company which is not Senior Indebtedness.]
[IF APPLICABLE, INSERT -- "SUBORDINATED INDEBTEDNESS" means the
Securities and any other indebtedness, guarantee or obligation of the Company
that specifically provides that such indebtedness, guarantee or obligation is to
rank PARI PASSU with other Subordinated Indebtedness of the Company and is not
subordinated by its terms to any indebtedness, guarantee or obligation of the
Company which is not Senior Indebtedness or Senior Subordinated Indebtedness].
"SIGNIFICANT SUBSIDIARY" shall mean any Subsidiary as shall be
designated a Significant Subsidiary pursuant to the provisions of Section
3.1(z).
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.7.
"STATED MATURITY" means, when used with respect to any Security or any
installment of principal thereof 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 interest is due and payable.
"SUBSIDIARY" means any corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"TRUST INDENTURE ACT" means the United States TRUST INDENTURE ACT of
1939 as in force at the date as of which this instrument was executed; PROVIDED,
HOWEVER, that in the event the Trust Indenture Act of 1939 is amended after such
date, "TRUST INDENTURE ACT" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939, as so amended.
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"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include 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 shall mean the Trustee with respect to
Securities of that series.
"VICE PRESIDENT" means, when used with respect to the Company or the
Trustee, any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
1.2 COMPLIANCE CERTIFICATES AND OPINIONS
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and, where required or if requested, an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any, have
been complied with, except that in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (including certificates
provided for in Section 10.4) shall include:
(a) a statement that each individual signing such certificate or
opinion has read and understood such covenant or condition and the definitions
herein related thereto;
(b) 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;
(c) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
1.3 FORM OF DOCUMENTS DELIVERED TO TRUSTEE
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
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15
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters has been provided by the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
1.4 ACTS OF HOLDERS; RECORD DATES
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.1) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(e) The Company may, in the circumstances permitted by the Trust
Indenture Act, where the series of Securities was required to be registered
under the SECURITIES ACT, fix any day as the record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to give
or take any request, demand, authorization, direction, notice, consent, waiver
or other action, or to vote on any action, authorized or permitted to be given
or taken by Holders of Securities of such series. If not set by the Company
prior to the first solicitation of a Holder of Securities of such series made by
any Person in respect of any such action, or, in the case of any such vote,
prior to such vote, the record date for any such action or vote shall be the
30th day (or, if later, the date of the most recent list of Holders required to
be provided pursuant to Section 7.1) prior to such first solicitation or vote,
as the case may be. With regard to any record date for action to be taken by the
Holders of one or more series of Securities, only the Holders of Securities of
such series on such date (or their duly designated proxies) shall be entitled to
give or take, or vote on, the relevant action. With regard to any record date
set pursuant to this paragraph,
Ind-9
16
the Holders of Outstanding Securities of the relevant series on such record date
(or their duly appointed agents), and only such Persons, shall be entitled to
give or take the relevant action, whether or not such Holders remain Holders
after such record date. With regard to any action that may be given or taken
hereunder by Holders of a requisite principal amount of Outstanding Securities
of any series (or their duly appointed agents) and for which a record date is
set pursuant to this paragraph, the Company may, at its option, set an
expiration date after which no such action purported to be given or taken by any
Holder shall be effective hereunder unless given or taken on or prior to such
expiration date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date (or their duly appointed agents).
On or prior to any expiration date set pursuant to this paragraph, the Company
may, on one or more occasions at its option, extend such date to any later date.
Nothing in this paragraph shall prevent any Holder (or any duly appointed agent
thereof) from giving or taking, after any expiration date, any action identical
to, or, at any time, contrary to or different from, any action given or taken,
or purported to have been given or taken, hereunder by a Holder on or prior to
such date, in which event the Company may set a record date in respect thereof
pursuant to this paragraph. Notwithstanding the foregoing or the Trust Indenture
Act, the Company shall not set a record date for, and the provisions of this
paragraph shall not apply with respect to, any action to be given or taken by
Holders pursuant to Sections 5.1, 5.2 or 5.12.
(f) Without limiting the foregoing, a Holder entitled hereunder to give
or take any action hereunder with regard to any particular Security may do so
with regard to all or any part of the principal amount of such Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any different part of such principal amount.
1.5 NOTICES, ETC., TO TRUSTEE AND COMPANY
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with:
(a) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, Attention:__________________; or
(b) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company, addressed to it
at the address of its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to the
Trustee by the Company.
1.6 NOTICE TO HOLDERS: WAIVER
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
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In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
1.7 CONFLICT WITH APPLICABLE LEGISLATION
If any provision hereof limits, qualifies or conflicts with a provision
of any Applicable Legislation that is required under such legislation to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of any Applicable
Legislation that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
1.8 EFFECT OF HEADINGS AND TABLE OF CONTENTS
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
1.9 SUCCESSORS AND ASSIGNS
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
1.10 SEPARABILITY CLAUSE
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
1.11 BENEFITS OF INDENTURE
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, any Authenticating Agent, Paying Agent, Security Registrar and the
Holders, any benefit or any legal or equitable right, remedy or claim under this
Indenture.
1.12 GOVERNING LAW
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York, but without regard to
principles of conflicts of laws.
1.13 LEGAL HOLIDAYS
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or the Securities
(other than a provision of the Securities of any series which specifically
states that such provision shall apply in lieu of this Section)) payment of
interest or principal (and premium, if any) need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on the Interest
Payment Date or Redemption Date, or at the Stated Maturity, PROVIDED THAT no
interest
Ind-11
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shall accrue for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be.
1.14 CORPORATE OBLIGATIONS
No recourse may be taken, directly or indirectly, against any
incorporator, subscriber to the capital stock, stockholder, officer, director or
employee of the Company or the Trustee or of any predecessor or successor of the
Company or the Trustee with respect to the Company's obligations on the
Securities or the obligations of the Company or the Trustee under this Indenture
or any certificate or other writing delivered in connection herewith.
ARTICLE 2
SECURITY FORMS
2.1 FORMS GENERALLY
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to Board Resolutions of the Board of Directors of the Company or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. If temporary Securities of
any series are issued in global form as permitted by Section 3.4, the form
thereof shall be established as provided in the preceding sentence. A copy of
the Board Resolutions establishing the form or forms of Securities of any series
(or any such temporary global security) shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior
to the delivery of the Company Order contemplated by Section 3.3 for the
authentication and delivery of such Securities (or any temporary global
Security).
The definitive Securities 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 of
such Securities.
2.2 FORM OF FACE OF SECURITY
[INSERT ANY LEGEND REQUIRED BY THE INTERNAL REVENUE CODE AND THE
REGULATIONS THEREUNDER.]
XXXXXXXXX ENERGY, INC.
----------------------------------
No. U.S. $
------- ------------
XXXXXXXXX ENERGY, INC., a corporation duly incorporated and existing
under the laws of Delaware (herein called the "Company," which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ___________________, or registered assigns,
the principal sum of _____________________________________ [United States]
Dollars on ________________________ [IF APPLICABLE, INSERT one or more foreign
currencies, currency units or composite currencies] [IF THE SECURITY IS TO BEAR
INTEREST PRIOR TO
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19
MATURITY, INSERT -- , and to pay interest thereon from _________________________
or from the most recent Interest Payment Date to which interest has been paid or
duly provided for, [semi-annually on ________________ and _______________ in
each year], [IF OTHER THAN SEMI-ANNUAL PAYMENTS, INSERT frequency of payments
and payment dates], commencing _________________, [IF THE SECURITY IS TO BEAR
INTEREST AT A FIXED RATE, INSERT -- at the rate of ____________% per annum], [IF
THE SECURITY IS A FLOATING OR ADJUSTABLE RATE SECURITY, insert -- a rate per
annum [computed - determined] in accordance with [INSERT defined name of
floating or adjustable rate provision set forth] [IF THE SECURITY IS TO BEAR
INTEREST AT A RATE DETERMINED WITH REFERENCE TO AN INDEX, REFER TO DESCRIPTION
OF INDEX BELOW] until the principal hereof is paid or made available for payment
[IF APPLICABLE, INSERT -- , and (to the extent that the payment of such interest
shall be legally enforceable) at the rate of _____% per annum on any overdue
principal and premium and on any overdue installment of interest], from the
dates such amounts are due until they are paid or made available for payment.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the _________ or __________ (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
[IF THE SECURITIES ARE FLOATING OR ADJUSTABLE RATE SECURITIES WITH
RESPECT TO WHICH PRINCIPAL OF OR ANY PREMIUM OR INTEREST MAY BE DETERMINED WITH
REFERENCE TO AN INDEX, INSERT THE TEXT OF THE FLOATING OR ADJUSTABLE RATE
PROVISION.]
[IF THE SECURITY IS NOT TO BEAR INTEREST PRIOR TO MATURITY, INSERT --
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of _________% per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date of
such default in payment to the date payment of such principal has been made or
duly provided for. Interest on any overdue principal shall be payable on demand.
Any such interest on any overdue principal that is not so paid on demand shall
bear interest at the rate of ___% per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date of
such demand for payment to the date payment of such interest has been made or
duly provided for, and such interest shall also be payable on demand.]
Payment of principal of (and premium, if any) and [IF APPLICABLE,
INSERT -- any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in ______________, in such
coin or currency of [IF APPLICABLE, INSERT -- the United States of America] [IF
APPLICABLE, INSERT ANOTHER CURRENCY, CURRENCY UNIT OR COMPOSITE CURRENCY] as at
the time of payment is legal tender for payment of public and private debts [IF
APPLICABLE, INSERT --]; PROVIDED, HOWEVER, that at the option of the Company
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register.]
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20
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereof has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
XXXXXXXXX ENERGY, INC.
By:
---------------------------------
Attest:
2.3 FORM OF REVERSE OF SECURITY
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of __________________ (herein called the
"Indenture"), among the Company and _____________, as Trustee (herein called the
"Trustee," which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [, limited in aggregate amount to U.S. $__________] [IF
APPLICABLE, INSERT RELEVANT AMOUNT IN APPLICABLE FOREIGN CURRENCY, CURRENCY UNIT
OR COMPOSITE CURRENCY].
[IF THE SECURITY IS CONVERTIBLE INTO COMMON STOCK OF THE COMPANY,
INSERT -- subject to and upon compliance with the provisions of the Indenture,
the Holder of this Security is entitled, at his option, at any time on or before
the close of business on, or in case this Security or a portion hereof is called
for redemption, then in respect of this Security or such portion hereof until
and including, but (unless the Company defaults in making the payment due upon
redemption) not after, the close of business on the 10th calendar day before the
Redemption Date, to convert this Security (or any portion of the principal
amount hereof which is U.S. $1,000 or an integral multiple thereof [IF
APPLICABLE, INSERT RELEVANT AMOUNT IN APPLICABLE FOREIGN CURRENCY, CURRENCY UNIT
OR COMPOSITE CURRENCY]), at the principal amount hereof, or of such portion,
into fully paid and non-assessable Common Shares (calculated as to each
conversion to the nearest 1/100 of a share) at an initial Conversion Price per
Common Share equal to U.S. $_________ per each Common Share [IF APPLICABLE,
INSERT RELEVANT AMOUNT IN APPLICABLE FOREIGN CURRENCY, CURRENCY UNIT OR
COMPOSITE CURRENCY] (or at the current adjusted Conversion Price if an
adjustment has been made as provided in the Indenture) by surrender of this
Security, duly endorsed or assigned to the Company or in blank, to the Company
at its office or agency in _____________________, accompanied by written notice
to the Company that the Holder hereof elects to convert this Security, or if
less than the entire principal amount hereof is to be converted, the portion
hereof to be converted, and, in such case such surrender shall be made during
the period from the close of business on any Regular
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21
Record Date next preceding any Interest Payment Date (unless this Security or
the portion thereof being converted has been called for redemption on a
Redemption Date within such period), also accompanied by payment in New York
Clearing House or other funds acceptable to the Company of an amount equal to
the interest payable on such Interest Payment Date on the principal amount of
this Security then being converted. Subject to the aforesaid requirement for
payment and, in the case of a conversion after the Regular Record Date next
preceding any Interest Payment Date and on or before such Interest Payment Date,
to the right of the Holder of this Security (or any Predecessor Security) of
record at such Regular Record Date to receive an installment of interest (with
certain exceptions provided in the Indenture), no payment or adjustment is to be
made on conversion for interest accrued hereon or for dividends on the Common
Shares issued on conversion. No fractions or shares or scrip representing
fractions of shares will be issued on conversion, but instead of any fractional
interest the Company shall pay a cash adjustment as provided in the Indenture.
The Conversion Price is subject to adjustment as provided in the Indenture. In
addition, the Indenture provides that in case of certain consolidations or
mergers to which the Company is a party or the transfer of substantially all of
the assets of the Company, the Indenture shall be amended, without the consent
of any Holders of Securities, so that this Security, if then outstanding, will
be convertible thereafter, during the period this Security shall be convertible
as specified above, only into the kind and amount of securities, cash and other
property receivable upon the consolidation, merger or transfer by a holder of
the number of Common Shares into which this Security might have been converted
immediately prior to such consolidation, merger or transfer (assuming such
holder of Common Shares failed to exercise any rights of election and received
per share the kind and amount received per share by a plurality of non-electing
shares). Adjustments in the Conversion Price of less than one percent of such
price will not be required, but any adjustment that would otherwise be required
to be made will be carried forward and taken into account in the computation of
any subsequent adjustment.
[If the Security is convertible into other securities or property,
specify the conversion features and the form of conversion notice pursuant to
Section 2.8 hereof.]
[IF APPLICABLE, INSERT -- The Securities of this series are subject to
redemption upon not less than 30 days' nor more than 60 days' notice by mail,
[IF APPLICABLE, INSERT -- (1) on __________ in any year commencing with the year
_____ and ending with the year _____ through operation of the sinking fund for
this series at a Redemption Price equal to 100% of the principal amount, and
(2)] at any time [IF APPLICABLE, INSERT -- on or after ________________], as a
whole or in part, at the election of the Company, at the following Redemption
Prices (expressed as percentages of the principal amount): if redeemed [IF
APPLICABLE, INSERT -- on or before ________, __%, and if redeemed] during the 12
month period beginning _____ of the years indicated,
Year Redemption Price Year Redemption Price
---- ---------------- ---- ----------------
and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption [IF APPLICABLE, INSERT -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[IF APPLICABLE, INSERT -- The Securities of this series are subject to
redemption upon not less than 30 days' nor more than 60 days' notice by mail,
(1) on _____ in any year commencing with the year _____ and ending with the year
_____ through operation of the sinking fund for this series at the
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Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below,
and (2) at any time [IF APPLICABLE, INSERT - --on or after _____], as a whole or
in part, at the election of the Company, at the Redemption Prices for redemption
otherwise than through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below: if redeemed during the
12-month period beginning _____ of the years indicated,
Redemption Price For Redemption Redemption Price For Redemption
Through Operation of the Sinking Otherwise Than Through Operation
Year Fund of the Sinking Fund
---- -------------------------------- --------------------------------
and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise)] with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity in on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[IF APPLICABLE, INSERT -- The sinking fund for this series provides for
the redemption on _____ in each year beginning with the year _____ and ending
with the year _____ of [IF APPLICABLE, INSERT -- not less than U.S. $_____
("mandatory sinking fund") and not more than] U.S. $_____ aggregate principal
amount of Securities of this series. Securities of this series acquired or
redeemed by the Company otherwise than through [IF APPLICABLE, INSERT --
mandatory] sinking fund payments may be credited against subsequent [IF
APPLICABLE, INSERT -- mandatory] sinking fund payments otherwise required to be
made [IF APPLICABLE, INSERT -- in the inverse order in which they become due].]
[IF THE SECURITY IS SUBJECT TO REDEMPTION OF ANY KIND, INSERT -- In the
event of redemption or conversion of this Security in part only, a new Security
or Securities of this series and of like tenor for the unredeemed or unconverted
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.]
[IF SENIOR INDEBTEDNESS, INSERT -- The indebtedness evidenced by this
Security has been designated as Senior Indebtedness, and, to the extent provided
in the Indenture, is PARI PASSU with all other Senior Indebtedness].
[IF SENIOR SUBORDINATED INDEBTEDNESS, INSERT -- The indebtedness
evidenced by this Security is, to the extent provided in the Indenture, (i)
subordinate and subject in right of payment to the prior payment in full of all
Senior Indebtedness and (ii) PARI PASSU with all other Senior Subordinated
Indebtedness, and this Security is issued subject to the provisions of the
Indenture with respect thereto. Each Holder of this Security, by accepting the
same, (a) agrees to and shall be bound by such provisions, (b) authorizes and
directs the Trustee on his behalf to take action as may be necessary or
appropriate to effectuate the subordination so provided and (c) appoints the
Trustee his attorney-in-fact for any and all such purposes.]
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[IF SUBORDINATED INDEBTEDNESS, INSERT -- The indebtedness evidenced by
this Security is, to the extent provided in the Indenture, (i) subordinate and
subject in right of payment to the prior payment in full of all Senior
Indebtedness and (ii) PARI PASSU with all other Subordinated Indebtedness, and
this Security is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Security, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee on his
behalf to take action as may be necessary or appropriate to effectuate the
subordination so provided and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes.]
[IF APPLICABLE, INSERT -- The Indenture contains provisions for
defeasance at any time of (i) the entire indebtedness of this Security or (ii)
certain restrictive covenants and Events of Default with respect to this
Security, in each case upon compliance with certain conditions set forth in the
Indenture.]
[IF THE SECURITY IS NOT AN ORIGINAL ISSUE DISCOUNT SECURITY, INSERT --
If an Event of Default with respect to Securities of this series shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.]
[IF THE SECURITY IS AN ORIGINAL ISSUE DISCOUNT SECURITY, INSERT -- If
an Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- INSERT FORMULA FOR DETERMINING THE
AMOUNT. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal and overdue interest (in each case
to the extent that the payment of such interest shall be legally enforceable),
all of the Company's obligations in respect of the payment of the principal of
and interest, if any, on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also permits
certain amendments and modifications thereto from time to time by the Company
and the Trustee without the consent of the Holders of any series of the
Securities to be affected thereby for certain specified purposes, including
curing ambiguities, defects or inconsistencies and making any such change that
does not adversely affect the rights of any Holder of such series of the
Securities, as provided therein.
The Indenture contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of Securities of such series, to
waive compliance by the Company with certain past provisions of the Indenture
and certain defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders
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of this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
[IF THE SECURITY IS ISSUED ON A SUBORDINATED OR SENIOR SUBORDINATED
BASIS, INSERT -- Subject to the rights of holders of Senior Indebtedness, as set
forth in the Indenture, no other reference herein to the Indenture and no other
provision of this Security or of the Indenture shall alter or impair the
obligations of the Company, which are unconditional, to pay the principal of and
any premium and interest on this Security at the times, place and rate, and in
the coin and currency, herein prescribed or to convert this Security as so
provided in the Indenture.]
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of U.S. $1,000 and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith. Prior to
due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company, or the Trustee may treat the Person in
whose name this Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.
The terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
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2.4 FORM OF LEGEND FOR GLOBAL SECURITIES
Unless otherwise specified as contemplated by Section 3.1 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee thereof. This Security may not be transferred to, or registered or
exchanged for Securities registered in the name of, any Person other than the
Depositary or a nominee thereof and no such transfer may be registered, except
in the limited circumstances described in the Indenture. Every Security
authenticated and delivered upon registration of transfer of, or in exchange for
or in lieu of, this Security shall be a Global Security subject to the
foregoing, except in such limited circumstances.
2.5 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
The Trustee's certificates 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.
----------------------------------
As Trustee
By:
-------------------------------
Authorized Officer
2.6 SECURITIES IN GLOBAL FORM
If Securities of a series are issuable in global form, as contemplated
by Section 3.1, then, notwithstanding clause (k) of Section 3.1 and the
provisions of Section 3.2, any such 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. Any endorsement of a Security in global form 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 3.3 or Section 3.4.
Subject to the provisions of Section 3.3 and, if applicable, Section 3.4, 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. If a Company Order pursuant to
Section 3.3 or 3.4 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 1.3
and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 3.3 shall apply to any
Security in global form if such Security was never issued and sold by the
Company and the Company delivers to the Trustee the Security in global form
together with written instructions (which need not comply with Section 1.3 and
need not be accompanied by an Opinion of Counsel) with regard to the reduction
in the principal amount of Securities represented thereby, together with the
written statement contemplated by the last sentence of Section 3.3.
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Notwithstanding the provisions of Sections 2.1 and 3.7, unless
otherwise specified as contemplated by Section 3.1, payment of principal of (and
premium, if any) and interest on and any Additional Amounts with respect to any
Security in permanent global form shall be made to the Person or Persons
specified therein.
Notwithstanding the provisions of Section 3.8 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
or of the Trustee shall treat a Person as the Holder of such principal amount of
Outstanding Securities represented by a Global Security as shall be specified in
a written statement, if any, of the Holder of such Global Security, which is
produced to the Security Registrar by such Holder.
Global Securities may be issued in either temporary or permanent form.
Permanent Global Securities will be issued in definitive form.
2.7 BOOK-ENTRY SECURITIES
Notwithstanding any provision of this Indenture to the contrary:
(a) At the discretion of the Company, any Security may be issued from
time to time, in whole or in part, in permanent global form registered in the
name of a Depositary, or its nominee. Each such Security in permanent global
form is hereafter referred to as a "Book-Entry Security." Subject to Section
3.3, upon such election, the Company shall execute, and the Trustee or an
Authenticating Agent shall authenticate and deliver, one or more Book-Entry
Securities that (i) are denominated in an amount equal to the aggregate
principal amount of the Outstanding Securities of such series if elected in
whole or such lesser amount if elected in part, (ii) are registered in the name
of the Depositary or its nominee, (iii) are delivered by the Trustee or an
Authenticating Agent to the Depositary or pursuant to the Depositary's
instructions and (iv) bear a legend in substantially the following form (or such
other form as the Depositary and the Company may agree upon):
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF [THE DEPOSITARY], TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF [NOMINEE
OF THE DEPOSITARY] OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF [THE DEPOSITARY] (AND ANY PAYMENT
IS MADE TO [NOMINEE OF THE DEPOSITARY] OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [THE
DEPOSITARY]), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, [NOMINEE OF THE DEPOSITARY], HAS
AN INTEREST HEREIN.
(b) Any Book-Entry Security shall be initially executed and delivered
as provided in Section 3.3. Notwithstanding any other provision of this
Indenture, unless and until it is exchanged in whole or in part for Securities
not issued in global form, a Book-Entry Security may not be transferred except
as a whole by the Depositary to a nominee of such Depositary, by a nominee of
such Depositary to such Depositary or another nominee of such Depositary, or by
such Depositary or any such nominee to a successor Depositary or a nominee of
such successor Depositary.
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(c) If at any time the Depositary notifies the Company or the Trustee
that it is unwilling or unable to continue as Depositary for any Book-Entry
Securities, the Company shall appoint a successor Depositary, whereupon the
retiring Depositary shall surrender or cause the surrender of its Book-Entry
Security or Securities to the Trustee. The Trustee shall promptly notify the
Company upon receipt of such notice. If a successor Depositary has not been so
appointed by the effective date of the resignation of the Depositary, the
Book-Entry Securities will be issued as Securities not issued in global form, in
an aggregate principal amount equal to the principal amount of the Book-Entry
Security or Securities theretofore held by the Depositary.
The Company may at any time and in its sole discretion determine that
the Securities shall no longer be Book-Entry Securities represented by a global
certificate or certificates, and will so notify the Depositary. Upon receipt of
such notice, the Depositary shall promptly surrender or cause the surrender of
its Book-Entry Security or Securities to the Trustee. Concurrently therewith,
Securities not issued in global form will be issued in an aggregate principal
amount equal to the principal amount of the Book-Entry Security or Securities
theretofore held by the Depositary.
Upon any exchange of Book-Entry Securities for Securities not issued in
global form as set forth in this Section 2.7(c), such Book-Entry Securities
shall be cancelled by the Trustee, and Securities issued in exchange for such
Book-Entry Securities pursuant to this Section shall be registered in such names
and in such authorized denominations as the Depositary for such Book- Entry
Securities, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee or any Authenticating Agent
shall deliver such Securities to the persons in whose names such Securities are
so registered.
(d) The Company and the Trustee shall be entitled to treat the Person
in whose name any Book-Entry Security is registered as the Holder thereof for
all purposes of the Indenture and any applicable laws, notwithstanding any
notice to the contrary received by the Trustee or the Company; and the Trustee
and the Company shall have no responsibility for transmitting payments to,
communication with, notifying, or otherwise dealing with any beneficial owners
of any Book- Entry Security. Neither the Company nor the Trustee shall have any
responsibility or obligations, legal or otherwise, to the beneficial owners or
to any other party including the Depositary, except for the Holder of any Book-
Entry Security; provided however, notwithstanding anything herein to the
contrary, (i) for the purposes of determining whether the requisite principal
amount of Outstanding Securities have given, made or taken any request, demand,
authorization, direction, notice, consent, waiver, instruction or other action
hereunder as of any date, the Trustee shall treat any Person specified in a
written statement of the Depositary with respect to any Book-Entry Securities as
the Holder of the principal amount of such Securities set forth therein and (ii)
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or Trustee, from giving effect to any written certification, proxy or
other authorization furnished by a Depositary with respect to any Book-Entry
Securities, or impair, as between a Depositary and holders of beneficial
interests in such Securities, the operation of customary practices governing the
exercise of the rights of the Depositary as Holder of such Securities.
(e) So long as any Book-Entry Security is registered in the name of a
Depositary or its nominee, all payments of the principal of (and premium, if
any) and interest on such Book-Entry Security and redemption thereof and all
notices with respect to such Book Entry Security shall be made and given,
respectively, in the manner provided in the arrangements of the Company with
such Depositary.
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2.8 FORM OF CONVERSION NOTICE
To: XXXXXXXXX ENERGY, INC.
The undersigned owner of this Security hereby irrevocably exercises the
option to convert this Security, or the portion hereof (which is U.S. $1,000 or
an integral multiple thereof) [IF APPLICABLE, INSERT RELEVANT AMOUNT IN
APPLICABLE FOREIGN CURRENCY, CURRENCY UNIT OR COMPOSITE CURRENCY] below
designated, into Common Shares of Xxxxxxxxx Energy, Inc., in accordance with the
terms of the Indenture referred to in this Security, and directs that the shares
issuable and deliverable upon the conversion, together with any check in payment
for fractional shares and any Securities, representing any unconverted principal
amount hereof, be issued and delivered to the registered holder hereof unless a
different name has been indicated below. If shares are to be issued in the name
of a person other than the undersigned, the undersigned will pay all transfer
taxes payable with respect thereto. Any amount required to be paid by the
undersigned on account of interest accompanies this Security.
Dated:
Fill in for registration of Common Shares and Securities if to be issued
otherwise than to the registered holder.
Principal Amount to be converted (in an integral Name multiple of U.S. $1,000,
if less than all): U.S. $
Address (Please print name and address, including signature zip/postal code
number)
SOCIAL SECURITY OR OTHER TAXPAYER IDENTIFYING
[SIGNATURE GUARANTEED -- required only if Common NUMBER Shares and Securities
are to be issued and delivered to other than the registered holder]
ARTICLE 3
THE SECURITIES
3.1 AMOUNT UNLIMITED; ISSUABLE IN SERIES
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more series.
All Securities of each series under this Indenture shall in all respects be
equally and ratably entitled to the benefits hereof with respect to such series
without preference, priority or distinction on account of the actual time of the
authentication and delivery or Stated Maturity of the Securities of such series.
There shall be established in or pursuant to Board Resolutions of the Company
and, subject to Section 3.3, set forth, or determined in the manner provided, in
an Officers' Certificate of the Company, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of any
series:
(a) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series);
(b) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered
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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 3.4, 3.5, 3.6, 9.7, 11.7 or 14.2 and except
for any Securities which, pursuant to section 3.3, are deemed never to have been
authenticated and delivered hereunder);
(c) if the Securities will be issuable at a premium over or discount
from their stated principal amount, specification of such premium or discount,
as applicable;
(d) whether any Securities of the series are to be listed for trading
on a securities exchange or otherwise;
(e) the Person to whom any interest on a Security of the series shall
be payable, if other than the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest;
(f) the date or dates on which the principal of the Securities of the
series is payable and on which the Securities will mature;
(g) the rate or rates (which may be fixed or variable) at which the
Securities of the series shall bear interest, if any, or the Floating or
Adjustable Rate Provision pursuant to which such rate or rates shall be
determined, the date or dates from which such interest shall accrue or the
method of determination of such date or dates, the Interest Payment Dates on
which any such interest shall be payable on any Securities and the Regular
Record Date for any interest payable on any Interest Payment Date, and the basis
upon which interest shall be calculated if other than that of a 360-day year of
twelve 30-day months;
(h) the place or places where the principal of and any premium and
interest on the Securities of the series shall be payable;
(i) the period or periods within which, the price or prices at which,
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company and, if other than
by a Board Resolution, the manner in which any election by the Company to redeem
the Securities shall be evidenced;
(j) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund, purchase fund or
analogous obligation or at the option of a Holder thereof and the period or
periods within which, the price or prices at which and the terms and conditions
upon which Securities of the series shall be redeemed or purchased, in whole or
in part, pursuant to such obligation;
(k) if other than denominations of U.S. $1,000 and any integral
multiple thereof, the denominations in which Securities of the series shall be
issuable;
(l) the currency, currencies or currency unit or units in which the
Securities of such series shall be denominated and in which payment of the
principal of and any premium and interest on any Securities of such series shall
be payable if other than the currency of the United States of America and the
manner of determining the equivalent thereof in the currency of the United
States of America for purposes of the definition of "Outstanding" in Section
1.1;
(m) if the amount of payments of principal of or any premium or
interest on any Securities of the series may be determined by reference to an
index, formula or other method, including, without limitation, such method based
on (i) currency, currencies or currency units other than that in which the
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Securities of such series are payable, (ii) changes in the price of one or more
other securities or groups or indices of securities, or (iii) changes in the
prices of one or more commodities or groups or indexes of commodities or any
combination of the foregoing, the manner in which such amounts shall be
determined and any commodities, currencies, currency units or indices, value,
rate or price relevant to such determination;
(n) if the principal of or any premium or interest on any Securities of
the series are to be payable, at the election of the Company or a Holder
thereof, in one or more currencies or currency units other than that or those in
which the Securities are stated to be payable, the currency, currencies or
currency units in which payment of the principal of and any premium and interest
on Securities of such series as to which such election is made shall be payable,
and the period or periods within which, and the terms and conditions upon which,
such election is to be made and the amount so payable for the manner in which
such amount shall be determined;
(o) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 5.2;
(p) if the principal amount payable at the Stated Maturity of any
Securities of the series is not determinable upon original issuance thereof, the
amount which shall be deemed to be the principal amount of such Securities for
any other purpose hereunder, including the principal amount thereof which shall
be due and payable upon any Maturity other than the Stated Maturity or which
shall be deemed to be Outstanding as of any date (or, in any such case, the
manner in which such principal amount shall be determined);
(q) if applicable, that the Securities of the series shall be subject
to Defeasance or Covenant Defeasance as provided in Article 13;
(r) if and as applicable, that the Securities of the series shall be
issuable in whole or in part in the form of one or more Global Securities and,
in such case, the respective Depositaries for such Global Securities, the form
of any legend or legends which shall be borne by any such Global Security in
addition to or in lieu of that set forth in Section 2.4 and any circumstances
other than those set forth in Section 3.5 in which any such Global Security may
be transferred to, and registered and exchanged for Securities registered in the
name of, a Person other than the Depositary for such Global Security or a
nominee thereof and in which any such transfer may be registered;
(s) if applicable, the terms and conditions pursuant to which the
Securities are convertible into or exchangeable at the option of the Holders
thereof or the Company, for or into new Securities of a different series, other
Securities of the same series of the same aggregate principal amount of a
different kind or different authorized denomination or denominations, or other
securities or other property, including shares in the capital of the Company or
any subsidiaries of the Company or securities directly or indirectly convertible
into or exchangeable for such shares;
(t) if applicable, any covenants in addition to those set forth in
Article 10 to which the Company may be subject with respect to Securities of
such series; or any other additions, deletions or changes to the provisions of
Article 10 or any definitions relating to such Article that shall be applicable
to the Securities of the series (including a provision making any Section of
such Article inapplicable to the Securities of such series);
(u) any Event of Default with respect to the Securities of such series,
if not set forth herein, and any additions, deletions or other changes to the
Events of Default set forth herein that shall be
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applicable to the Securities of such series (including a provision making any
Event of Default set forth herein inapplicable to the Securities of that
series);
(v) provisions, if any, regarding the appointment by the Trustee of an
Authenticating Agent in one or more places other than the location of the office
of the Trustee with power to act on behalf of the Trustee and subject to its
direction in the authentication and delivery of the Securities of any one or
more series in connection with such transactions as shall be specified in the
provisions of this Indenture or in or pursuant to the Board Resolution or other
supplemental indenture creating such series;
(w) the provisions for the payment of any additional amounts, to the
extent not set forth herein;
(x) whether the interest, if any, on the Securities is to be payable,
at the election of the Company or a holder thereof, in cash or in PIK Securities
and the period or periods within which, and the terms and conditions upon which,
such election may be made;
(y) designation of the series of Securities as Senior Indebtedness,
Senior Subordinated Indebtedness or Subordinated Indebtedness, and any
additions, deletions or changes to the provisions of Article 15 or any
definition relating to such Article that shall be applicable to the Securities
of the series defining the rights of holders of Senior Indebtedness in respect
of the Securities of such series;
(z) any addition to or deletion from the definition of Significant
Subsidiary;
(aa) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 9.1); and
(bb) whether any Securities of the series will be secured.
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 Resolutions of the Company referred to above and (subject to
Section 3.3) set forth, or determined in the manner provided, in the Officers'
Certificate referred to above or in any such indenture supplemental hereto. All
Securities of any one series need not be issued at the same time and, unless
otherwise provided, a series may be reopened for issuances of additional
Securities of such series.
If any of the terms of the series are established by action taken
pursuant to Board Resolutions of the Company, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificates setting forth the terms of the series.
3.2 DENOMINATIONS
The Securities of each series shall be issuable in registered form
without coupons in such denominations and in such currencies as shall be
specified as contemplated by Section 3.1. In the absence of any such provisions
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of U.S. $1,000 and any integral multiple
thereof.
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3.3 EXECUTION, AUTHENTICATION, DELIVERY AND DATING
The Securities shall be executed on behalf of the Company by its Chief
Executive Officer, its President, one of its Vice Presidents or its Treasurer,
under its corporate seal reproduced thereon attested by its Secretary. The
signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order (which may provide that Securities that are the subject
thereof will be authenticated and delivered by the Trustee upon the telephonic
or written order of Persons designated in said Company Order and that such
Persons are authorized to determine such terms and conditions of said Securities
as are specified in the Company Order) shall authenticate and deliver such
Securities. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions of the Company as
permitted by Sections 2.1 and 3.1, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 6.1) shall be fully protected in relying upon, an Opinion of Counsel
stating:
(a) if the form of such Securities has been established by or pursuant
to Board Resolutions of the Company as permitted by Section 2.1, that such form
has been established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolutions of the Company as permitted by Section 3.1, that
such terms have been established in conformity with the provisions of this
Indenture; and
(c) that 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 legally binding
obligations of the Company enforceable in accordance with their terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles and to such other matters as counsel may
specify.
If such form or terms have been so established, the Trustee shall not
be required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 3.1 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued and contemplate issuance of all Securities
of such series.
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Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 3.9, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
3.4 TEMPORARY SECURITIES
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities, which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions of the following paragraphs). If
temporary Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company maintained pursuant to Section 10.2 in a Place of Payment for that
series for the purpose of exchanges of Securities of such series, without charge
to the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor one or more definitive Securities
of the same series, of any authorized denominations and of a like aggregate
principal amount and tenor. Until so exchanged the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series and tenor.
All outstanding temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities of the same series and of like tenor authenticated and delivered
hereunder.
3.5 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security or of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and tenor.
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Xx the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series of any authorized denominations and of a
like aggregate principal amount and tenor, upon surrender of the Securities to
be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.4, 9.7, 11.7 or 14.2 not involving any transfer.
The Company shall not be required to (a) issue or register the transfer
or exchange of Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 11.3 and ending
at the close of business on the day of such mailing, or (b) register the
transfer or exchange of any Security so selected for redemption in whole or in
part, except in the case of any Security to be redeemed in part, the portion
thereof not to be redeemed.
Notwithstanding any other provision in this Indenture, no Global
Security may be transferred to, or registered or exchanged for Securities
registered in the name of, any Person other than the Depositary for such Global
Security or any nominee thereof, and no such transfer may be registered, unless
(a) such Depositary (i) notifies the Company and the Trustee that it is
unwilling or unable to continue as Depositary for such Global Security or (ii)
ceases to be a clearing agency registered under the Exchange Act and a successor
Depositary is not appointed by the Company within 90 days after the Company
receives the notice referred to in subclause (i) or becomes aware of the
condition specified in subclause (ii), (b) the Company executes and delivers to
the Trustee a Company Order that such Global Security shall be so transferable,
registrable and exchangeable, and such transfers shall be registrable, (c) there
shall have occurred and be continuing an Event of Default with respect to the
Securities evidenced by such Global Security or (d) there shall exist such other
circumstances, if any, as have been specified for this purpose as contemplated
by Section 3.1. Notwithstanding any other provision in this Indenture, a Global
Security to which the restriction set forth in the preceding sentence shall have
ceased to apply may be transferred only to, and may be registered and exchanged
for Securities registered only in the name or names of, such Person or Persons
as the Depositary for such Global Security shall have directed and no transfer
thereof other than such a transfer may be registered.
Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security to which the
restriction set forth in the first sentence of the preceding paragraph shall
apply, whether pursuant to this Section, Sections 3.4, 3.6, 9.7, 11.7 or 14.2 or
otherwise, shall be authenticated and delivered in the form of, and shall be, a
Global Security.
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3.6 MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a) evidence
to their satisfaction of the destruction, loss or theft of any Security and (b)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case 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 and subject to the above provisions
regarding security or indemnity, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
exchange for any mutilated Security or in lieu of any destroyed, lost or stolen
Security shall constitute an original additional contractual obligation of the
Company, whether or not the mutilated, destroyed, lost or stolen Security shall
be at any time enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Securities
of that series duly issued hereunder.
The provisions of this Section 3.6 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
3.7 PAYMENT OF INTEREST: INTEREST RIGHTS PRESERVED
Except as otherwise provided as contemplated by Section 3.1 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
In the case of Securities represented by a Global Security registered
in the name of or held by a Depositary or its nominee, unless otherwise
specified by Section 3.1, payment of principal, premium, if any, and interest,
if any, will be made to the Depositary or its nominee, as the case may be, as
the registered owner or Holder of such Global Security. None of the Company, the
Trustee, any Paying Agent, any Authenticating Agent nor the Security Registrar
for such Securities will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interest in a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, on
such
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date, and such Defaulted Interest may be paid by the Company, at its election in
each case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security of such series
and the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Securities of such series
at his address as it appears in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be listed,
and upon such notice as may be required by such exchange, if, after notice is
given by the Company to the Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by the Trustee.
At the option of the Company, interest on Securities of any series that
bear interest may be paid by mailing a check to the address of the Person
entitled thereto as such address shall appear in the Security Register.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Subject to the provisions of 14.2, in the case of any security which is
converted after any Regular Record Date and on or prior to the next succeeding
Interest Payment Date (other than any Security the principal of (or premium, if
any, on) which shall become due and payable, whether at a Stated Maturity or by
declaration of acceleration, call for redemption, or otherwise, prior to such
Interest Payment Date), interest whose Stated Maturity Date is on such Interest
Payment Date shall be payable on such Interest Payment Date notwithstanding such
conversion and such interest (whether or not punctually paid or duly provided
for) shall be paid to the Person in whose name that Security (or any one or more
Predecessor Securities) is registered at the close of business on such Regular
Record Date. Except as otherwise expressly provided in the immediately preceding
sentence, in the case of any Security which is converted, interest whose Stated
Maturity is after the date of conversion of such Security shall not be payable.
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3.8 PERSONS DEEMED OWNERS
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee shall treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and any premium
and (except as otherwise specified as contemplated by Section 3.1(e) and subject
to Section 3.7) any interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
In the case of a Global Security, so long as the Depositary for such
Global Security, or its nominee, is the registered owner of such Global
Security, such Depositary or such nominee, as the case may be, will be
considered the sole owner or Holder of the Securities represented by such Global
Security for all purposes under this Indenture. Except as provided in Section
3.5, owners of beneficial interests in a Global Security will not be entitled to
have Securities that are represented by such Global Security registered in their
names, will not receive or be entitled to receive physical delivery of such
Securities in definitive form and will not be considered the owners or Holders
thereof under this Indenture.
Notwithstanding the foregoing, with respect to any Global Security,
nothing herein shall (a) prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by a Depositary or (b) impair, as between a
Depositary and holders of beneficial interests in any Global Security, the
operation of customary practices governing the exercise of the rights of the
Depositary as Holder of such Global Security.
3.9 CANCELLATION
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of as directed by a Company
Order.
3.10 COMPUTATION OF INTEREST
Except as otherwise specified as contemplated by Section 3.1 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
3.11 PAYMENT OF ADDITIONAL AMOUNTS
All payments made by the Company under or with respect to the
Securities will be made free and clear of and without withholding or deduction
for or on account of any present or future tax, duty, levy, impost, assessment
or other governmental charge imposed or levied by or on behalf of the Government
of the United States, any state thereof or the District of Columbia, or by any
authority or agency therein or thereof having power to tax (hereinafter
"Taxes"), unless the Company is required to withhold or deduct Taxes by law or
by the interpretation or administration thereof. If the Company is so required
to withhold
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or deduct any amount for or on account of Taxes from any payment made under or
with respect to the Securities, the Company will pay such additional amounts
("Additional Amounts") as may be necessary so that the net amount received by
each Holder (including Additional Amounts) after such withholding or deduction
will not be less than the amount the Holder would have received if such Taxes
had not been withheld or deducted; PROVIDED THAT no Additional Amounts will be
payable with respect to a payment made to a Holder (an "Excluded Holder") (i)
with which the Company does not deal at arm's length (within the meaning of the
INTERNAL REVENUE CODE) at the time of making such payment or (ii) which is
subject to such Taxes by reason of its being connected with the United States,
any state thereof or the District of Columbia, otherwise than by the mere
holding of Securities or the receipt of payments thereunder. The Company will
also (i) make such withholding or deduction and (ii) remit the full amount
deducted or withheld to the relevant authority in accordance with applicable
law. The Company will furnish to the Holders of the Securities, within 30 days
after the date the payment of any Taxes is due pursuant to applicable law,
certified copies of tax receipts evidencing such payment by the Company. The
Company will indemnify and hold harmless each Holder (other than an Excluded
Holder) and upon written request reimburse each such Holder for the amount of
(i) any Taxes so levied or imposed and paid by such Holder as a result of
payments made under or with respect to the Securities, (ii) any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto, and (iii) any Taxes imposed with respect to any reimbursement under (i)
or (ii), but excluding any such Taxes on such Holders' net income.
At least 30 days prior to each date on which any payment under or with
respect to the Securities is due and payable, if the Company will be obligated
to pay Additional Amounts with respect to such payment, the Company will deliver
to the Trustee an Officers' Certificate stating the fact that such Additional
Amounts will be payable, stating the amounts so payable and setting forth such
other information as is necessary to enable the Trustee to pay such Additional
Amounts to Holders on the payment date. Whenever in this Indenture there is
mentioned, in any context, the payment of principal (and premium, if any),
Redemption Price, interest or any other amount payable under or with respect to
any Security, such mention shall be deemed to include mention of the payment of
Additional Amounts provided for in this Section 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 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 (if applicable).
The obligations of the Company under this Section 3.11 survive the
termination of the Indenture and the payment of all amounts under or with
respect to the Securities.
[IF SENIOR INDEBTEDNESS, INSERT --
3.12 DESIGNATION AS SENIOR INDEBTEDNESS
The Company hereby confirms the designation of the Securities as
"Senior Indebtedness" for the purpose of any securities that may be issued
pursuant to the Senior Subordinated Indenture or the Subordinated Indenture.]
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[IF SENIOR SUBORDINATED INDEBTEDNESS, INSERT --
3.12 DESIGNATION AS SENIOR SUBORDINATED INDEBTEDNESS
The Company hereby confirms the designation of the Securities as
"Senior Subordinated Indebtedness" for the purpose of any securities that may be
issued pursuant to the Subordinated Indenture.]
ARTICLE 4
SATISFACTION AND DISCHARGE
4.1 SATISFACTION AND DISCHARGE OF INDENTURE
This Indenture shall, upon Company Request, cease to be of further
effect (except as to any surviving rights or registration of transfer or
exchange of Securities herein expressly provided for) and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when:
(a) either,
(i) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 3.6 and
(ii) Securities for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 10.3) have been delivered to the Trustee for cancellation, or
(ii) all such Securities not theretofore delivered to the
Trustee for cancellation
(A) have become due and payable, or
(B) will become due and payable at their
Stated Maturity within one year, or
(C) 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, in the case of (A), (B) or (C) above, has deposited or caused
to be deposited with the Trustee, as trust funds in trust for the purpose, money
in the currency in which the Securities of such series are denominated or
Government Obligations of the government issuing the currency in which the
Securities of such series are denominated which through the payment of interest
and principal in respect thereof in accordance with their terms will provide
lawful money not later than one day before the due dates of principal (and
premium, if any) or interest, or any combination thereof, in an amount
sufficient to pay and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for principal and any
premium and interest to the date of such deposit (in the case of Securities
which have become due and payable) or to the Stated Maturity or Redemption Date,
as the case may be;
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(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to the
Securities of all series to which it is Trustee and if the other conditions
thereto are met. In the event there are two or more Trustees hereunder, then the
effectiveness of any such instrument shall be conditioned upon receipt of such
instruments from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7, the obligations of
the Trustee to any Authenticating Agent under Section 6.14 and, if money shall
have been deposited with the Trustee pursuant to subclause (ii) of clause (a) of
this Section, and the obligations of the Trustee under Section 4.2 and the last
paragraph of Section 10.3 shall survive.
4.2 APPLICATION OF TRUST MONEY
Subject to the provisions of the penultimate paragraph of Section 10.3,
all money deposited with the Trustee pursuant to Section 4.1 shall be held in
trust and applied by it, in accordance with the provisions of the Securities and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee. [IF
APPLICABLE, INSERT IN SUBORDINATED INDENTURE -- Money deposited pursuant to this
section shall not be subject to the claims of the holders of Senior Indebtedness
or Senior Subordinated Indebtedness...or in the Senior Subordinated Debenture...
Money deposited pursuant to this section shall not be subject to the claims of
Senior Indebtedness.]
ARTICLE 5
REMEDIES
5.1 EVENTS OF DEFAULT
"Event of Default," wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless such event is either inapplicable to a particular series or it is
specifically deleted or modified in the Board Resolutions or supplemental
indenture creating such series of Securities or in the form of Security for such
series:
(a) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for a
period of 30 days (whether or not such failure is a result of the subordination
provisions relating to such series); or
(b) default in the payment of the principal of (or premium, if any, on)
any Security of that series at its Maturity (whether or not such failure is a
result of the subordination provisions relating to such series); or
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(c) default in the deposit of any mandatory sinking fund payment, when
and as due by the terms of a Security of that series and continuance of such
default for a period of 30 days; or
(d) default in the performance, or breach of any covenant or warranty
of the Company in this Indenture or of any other covenant to which the Company
is subject with respect to such series of Securities by virtue of Section 3.1(t)
(other than a covenant or warranty a default in whose performance or whose
breach is specifically dealt with elsewhere in this Section or which has
expressly been included in this Indenture or in the applicable Board Resolutions
or supplemental indenture with respect to such series of Securities solely for
the benefit of a series of Securities other than that series or which has been
included in this Indenture or in the applicable Board Resolutions or
supplemental indenture with respect to such series of Securities but not made
applicable to the Securities of such series) and continuance of such default or
breach for a period of 90 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 25% in principal amount of the Outstanding Securities
of that series, a written notice specifying such default or breach and requiring
it to be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(e) (i) an event of default, as defined in any indenture or instrument
evidencing or under which the Company or any Significant Subsidiary shall have
outstanding indebtedness for borrowed money in a principal amount in excess of
$15 million, shall happen and be continuing and such indebtedness shall have
been accelerated so that the same shall be or become due and payable prior to
the date on which the same would otherwise have become due and payable or (ii)
the Company or any Significant Subsidiary shall default in the payment at final
maturity of outstanding indebtedness for borrowed money in a principal amount of
$15 million, and such acceleration or default at maturity shall not be waived,
rescinded or annulled within 30 days after written notice thereof, stating that
such notice is a "Notice of Default" hereunder, shall have been given to the
Company by the Trustee (if such event be known to it), or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the Outstanding
Securities of that series; provided, however, that if such acceleration under
such indenture or instrument or default at maturity shall be remedied or cured
by the Company or Significant Subsidiary, or waived, rescinded or annulled by
the requisite holders of such indebtedness, then the Event of Default hereunder
by reason thereof shall be deemed likewise to have been thereupon remedied,
cured or waived without further action upon the part of either the Trustee or
any of the Holders; or
(f) the entry by a court having jurisdiction in the premises of (i) a
decree or order for relief in respect of the Company in an involuntary case or
proceeding under the any applicable Federal or State bankruptcy, insolvency,
reorganization or similar law, or (ii) a decree or order adjudging the Company
bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of the
Company under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar official
of the Company or of any substantial part of its respective property, or
ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order for relief specified in this clause (ii) unstayed and
in effect for a period of 90 consecutive days; or
(g) the commencement by the Company of a voluntary case or proceeding
under the any applicable Federal or State COMPANIES' CREDITORS bankruptcy,
insolvency, reorganization or similar law, or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by the Company to the
entry of a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or similar law, or to the commencement of any
bankruptcy or insolvency case or proceeding against the Company or the filing by
the Company of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by it to the filing of
such petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignees, trustee, sequestrator or
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other similar official of the Company or of any substantial part of its
property, or the making by the Company of an assignment for the benefit of
creditors, or the admission by the Company in writing its inability to pay its
debts generally as they become due, or the taking of corporate action by the
Company in furtherance of any such action; or
(h) any other Event of Default provided in the supplemental indenture
or Board Resolution of the Company under which such series of Securities is
issued or in the form of Security for such series.
Notwithstanding the foregoing provisions of this Section 5.1, if the
principal of (and premium, if any) or any interest on, or Additional Amounts
with respect to, any Security is payable in a currency or currencies (including
a composite currency) other than Dollars and such currency (or currencies) is
(or are) not available to the Company for making payment thereof due to the
imposition of exchange controls or other circumstances beyond the control of the
Company (a "Conversion Event"), the Company will be entitled to satisfy its
obligations to Holders of the Securities by making such payment in Dollars in an
amount equal to the Dollar equivalent of the amount payable in such other
currency, as determined by the Company by reference to the noon buying rate in
The City of New York for cable transfers for such currency ("Exchange Rate"), as
such Exchange Rate is certified for customs purposes by the Federal Reserve Bank
of New York on the date of such payment, or, if such rate is not then available,
on the basis of the most recently available Exchange Rate. Notwithstanding the
foregoing provisions of this Section 5.1, any payment made under such
circumstances in Dollars where the required payment is in a currency other than
Dollars will not constitute an Event of Default under this Indenture.
Promptly after the occurrence of a Conversion Event with respect to
Securities of any series, the Company shall give written notice thereof to the
Trustee; and the Trustee, promptly after receipt of such notice, shall give
notice thereof in the manner provided in Section 1.6 to the Holders of such
series. Promptly after the making of any payment in Dollars as a result of a
Conversion Event with respect to Securities of any series, the Company shall
give notice in the manner provided in Section 1.6 to the Holders of such series,
setting forth the applicable Exchange Rate and describing the calculation of
such payments.
5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT
(a) If an Event of Default with respect to Securities of any series at
the time Outstanding occurs and is continuing, then in every such case, the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
any of the Securities of that series are Original Issue Discount Securities,
such portion of the principal amount of such Securities as may be specified in
the terms thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders) and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable, except that if the Event of
Default is an event described in clause 5.1(e) or 5.1(f) above, the principal
amount (or in the case of Original Issue Discount Securities, such portion
thereof) of all Securities shall become due and payable immediately, without
notice of further action of any kind whatsoever.
(b) At any time after such a declaration of acceleration with respect
to Securities of any series has been made, but 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
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(i) the Company has paid or deposited with the Trustee a sum
sufficient to pay
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(A) all overdue interest on all Securities of that
series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than
by such declaration of acceleration and any interest thereon
at the rate or rates prescribed therefore in such Securities,
to the extent that payment of such interest is lawful,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(ii) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of
that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
5.3 SUITS FOR ENFORCEMENT BY TRUSTEE
The Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of any sums due and unpaid as
a consequence of the action set froth in Section 5.2(a), and may prosecute such
proceedings to judgment or final decrees, and may enforce the same against the
Company or any other obligor upon the Securities of such series and collect the
money adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
5.4 TRUSTEE MAY FILE PROOFS OF CLAIM
In case of any judicial proceeding relative to the Company or any other
obligor upon the Securities, its property or its creditors, the Trustee shall be
entitled and empowered, by intervention in such proceeding or otherwise, to take
any and all actions authorized under Applicable Legislation in order to have
claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official 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 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 6.7, except for such costs and expenses as
are a result of negligence or bad faith on the part of the Trustee.
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No provision of this Indenture 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.
5.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
5.6 APPLICATION OF MONEY COLLECTED
[IF APPLICABLE, INSERT -- Subject to Article 15,] Any money collected
by the Trustee pursuant to this Article shall be applied in the following order,
at the date or dates fixed by the Trustee and, in case of the distribution of
such money on account of principal or any premium or interest, upon presentation
of the Securities and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
(a) first, to the payment of all amounts due the Trustee under Section
6.7;
(b) second, to the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect of which
or for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable on
such Securities for principal and any premium and interest, respectively; and
(c) third, the balance, if any, to the Company or any other Person or
Persons entitled thereto.
5.7 LIMITATION ON SUITS
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(a) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(b) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request;
(d) the Trustee for 60 days after receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
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(e) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
5.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM
AND INTEREST
Notwithstanding any other provision of this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of, any premium and (except as specified as
contemplated by Section 3.1(e) and subject to Section 3.7) any interest on such
Security on the Stated Maturity or Maturities expressed in such Security (or, in
the case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment and such rights shall not be impaired without
the consent of such Holder.
5.9 RESTORATION OF RIGHTS AND REMEDIES
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
5.10 RIGHTS AND REMEDIES CUMULATIVE
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 3.6, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
5.11 DELAY OR OMISSION NOT WAIVER
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
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5.12 CONTROL BY HOLDERS
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
to exercise any trust or power conferred on the Trustee, with respect to the
Securities of such series, PROVIDED THAT:
(a) such direction shall not be in conflict with any rule of law or
with this Indenture;
(b) the Trustee shall not determine that the action so directed would
be unjustly prejudicial to Holders of Securities of that series, or any other
series not taking part in such direction; and
(c) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
5.13 WAIVER OF PAST DEFAULTS
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default:
(a) in the payment of the principal of or any premium or interest on
any Security of such series; or
(b) in respect of a covenant or provision hereof which under Article 9
cannot be modified or amended 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 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.
5.14 UNDERTAKING FOR COSTS
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorney's fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; PROVIDED THAT
this Section shall not be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company,
or to any suit instituted by any Holder, or group of Holders, holding in the
aggregate more than 10% in principal amount of the Outstanding Securities of any
series.
5.15 WAIVER OF CERTAIN COVENANTS
The Company may omit in any particular instance to comply with any
term, provision or condition to which the Company is subject with respect to the
Securities of any series by virtue of Section 3.1(t), or any covenant provided
pursuant to Section 9.1(b) for the benefit of Holders of such series, if before
the time for such compliance the Holders of at least a majority in principal
amount of the Outstanding Securities of such series shall, by Act of such
Holders, either waive such compliance in such
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instance or generally waive compliance with such term, provision or condition,
but no such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
ARTICLE 6
THE TRUSTEE
6.1 CERTAIN DUTIES AND RESPONSIBILITIES
The duties and responsibilities of the Trustee shall be as provided by
Applicable Legislation. Notwithstanding the foregoing (but subject to Section
1.7), no provision of this Indenture shall require the Trustee to expend or risk
its own funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably assured
to it. Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
6.2 NOTICE OF DEFAULTS
If a default occurs hereunder with respect to Securities of any series,
the Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by Applicable Legislation and in the
manner provided in Section 1.6. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to Securities of such series.
6.3 CERTAIN RIGHTS OF TRUSTEE
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order (unless other
evidence in respect thereof be herein specifically prescribed) and any
resolution of the Board of Directors of the Company may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) 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;
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(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;
and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
6.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities, except that
the Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Securities and perform its obligations hereunder
and, if the series of Securities was required to be registered under the
SECURITIES ACT, that the statements made by it in a Statement of Eligibility on
Form T-1 supplied to the Company are true and accurate, subject to the
qualifications set forth therein. The Trustee or any Authenticating Agent shall
not be accountable for the use or application by the Company of Securities or
the proceeds thereof.
6.5 MAY HOLD SECURITIES
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, or the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 6.8 and 6.13, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
6.6 MONEY HELD IN TRUST
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company in writing.
6.7 COMPENSATION AND REIMBURSEMENT
The Company covenants and agrees:
(a) to pay to the Trustee from time to time reasonable compensation for
all services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an express
trust);
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(b) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except to the extent any such expense,
disbursement or advance may be attributable to its negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense, arising out of or in connection with the acceptance
or administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder, except to
the extent any such expense, disbursement or advance may be attributable to its
negligence or bad faith.
"Trustee," for purposes of this Section 6.7, includes any predecessor
Trustee, PROVIDED THAT the negligence or bad faith of any Trustee shall not
affect the rights under this Section 6.7 of any other Trustee.
6.8 DISQUALIFICATION; CONFLICTING INTERESTS
If the Trustee has or shall acquire a conflicting interest within the
meaning of Applicable Legislation, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, Applicable Legislation and this Indenture, and the Company
shall take prompt action to have a successor Trustee appointed in the manner
provided herein. To the extent permitted by such legislation, the Trustee shall
not be deemed to have a conflicting interest by virtue of being a trustee under
[LIST ANY PRIOR INDENTURES BETWEEN THE COMPANY AND THE TRUSTEE THAT HAVE NOT
BEEN SATISFIED AND DISCHARGED AND THAT MAY BE EXCLUDED BY THE PROVISO TO SECTION
310(B)(1) OF THE TRUST INDENTURE ACT.]
6.9 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY
There shall at all times be a Trustee hereunder with respect to the
Securities of each series and the Trustee shall be a Person that is eligible
pursuant to the TRUST INDENTURE ACT to act as such, has a combined capital and
surplus of at least U.S. $50,000,000 and is subject to supervision or
examination by United States Federal, Territorial, District of Columbia or State
authority. If such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then, for the purposes of this Section and to the extent permitted by
the TRUST INDENTURE ACT, the combined capital and surplus of such Person shall
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
The Indenture shall always have a Trustee who satisfies the
requirements of Section 3.10(a)(1) and 310(a)(5) of the Trust Indenture Act.
6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
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(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 6.11 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and the
Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 6.8 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months; or
(ii) the Trustee shall cease to be eligible under Section 6.9
and shall fail to resign after written request therefor by the Company
or by any such Holder; or
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation of liquidation,
then, in any such case, (A) the Company by a Board Resolution, may remove the
Trustee with respect to all Securities, or (B) subject to Section 5.14, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, 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) and shall comply with the
applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
6.11, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 6.11, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the
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Securities of any series to all Holders of Securities of such series in the
manner provided in Section 1.6. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the address
of its Corporate Trust Office.
6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (i) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (ii)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(iii) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
6.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the
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Trustee shall be a party, or any corporation succeeding to all or substantially
all the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities. In the event any Securities shall not have been
authenticated by such predecessor Trustee, any such successor Trustee may
authenticate and deliver such Securities, in either its own name or that of its
predecessor Trustee, with the full force and effect which this Indenture
provides for the certificate of authentication of the Trustee.
6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY
If and when the Trustee with respect to any series of Securities which
was required to be registered under the EXCHANGE ACT shall be or become a
creditor of the Company (or any other obligor upon the Securities), the Trustee
shall be subject to the provisions of the TRUST INDENTURE ACT regarding the
collection of claims against the Company (or any such other obligor).
6.14 APPOINTMENT OF AUTHENTICATING AGENT
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue and upon exchange, registration of transfer or partial redemption thereof
or pursuant to Section 3.6, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and, if such Authenticating Agent is appointed with
respect to any series of Securities which was required to be registered under
the EXCHANGE ACT, shall at all times be a corporation organized and doing
business under the laws of the United States of America, any State thereof or
the District of Columbia, authorized under such laws to act as an Authenticating
Agent, having a combined capital and surplus of not less than U.S. $50,000,000
and subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then,
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a
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notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 6.7.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
----------------------------------
As Trustee
By:
-------------------------------
As Authenticating Agent
By:
-------------------------------
Authorized Officer
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
7.1 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after the Regular Record Date
for each series of Securities, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of Securities as
of such Regular Record Date, or if there is no Regular Record Date for interest
for such series of Securities, semi-annually, upon such dates as are set forth
in the Board Resolution or indenture supplemental hereto authorizing such
series; and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished; [provided, however, that so long as the Trustee is the Security
Registrar, the Company shall not be required to furnish or cause to be furnished
such a list to the Trustee. The Company shall otherwise comply with Section
310(a) of the Trust Indenture Act.]
PROVIDED, HOWEVER, that so long as the Trustee is the Security
Registrar, no such list shall be required to be furnished.
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7.2 PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Securities (i) contained in
the most recent list furnished to the Trustee for each series as provided in
Section 7.1 and (ii) received by the Trustee for each series in the capacity as
Security Registrar if the Trustee is acting in such capacity. The Trustee may
destroy any list furnished to it as provided in Section 7.1 upon receipt of a
new list so furnished. The Trustee shall otherwise comply with Section 310(a) of
the Trust Indenture Act.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by
Applicable Legislation and any other relevant provisions of United States
securities laws.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
Applicable Legislation.
7.3 REPORTS BY TRUSTEE
(a) The Trustee shall transmit to Holders of Securities, as their names
and addresses appear in the Security Register, such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to
Applicable Legislation at the times and in the manner provided pursuant thereto.
(b) A copy of such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
7.4 REPORTS BY COMPANY
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the TRUST INDENTURE ACT at the
times and in the manner provided pursuant to such Act; PROVIDED THAT any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the EXCHANGE ACT shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission. The provisions of this section shall not require the Company to make
any filing with the Commission with respect to any series of Securities to which
the EXCHANGE ACT and the TRUST INDENTURE ACT are not applicable.
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
8.1 COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS
The Company shall not consolidate with or merge into any other
corporation (other than a wholly-owned Subsidiary of the Company) or convey,
transfer, sell or lease its properties and assets substantially as an entirety
(treating the Company and each Subsidiary of the Company as a single
consolidated entity and treating any sale by a Subsidiary or of a Subsidiary
(including by merger) as a sale by the Company for such purpose) to any
corporation (other than a wholly-owned Subsidiary of the Company), and the
Company shall not permit any corporation (other than a wholly owned Subsidiary
of
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the Company) to consolidate with or merge into the Company or convey, transfer
or lease its properties and assets substantially as an entirety to the Company,
unless:
(a) the Company shall consolidate with or merge into another
corporation or convey, transfer or lease its properties and assets substantially
as an entirety (treating the Company and each Subsidiary or of a Subsidiary
(including by merger)) of the Company as a single consolidated entity and
treating any sale by a Subsidiary or of a Subsidiary (including by merger) as a
sale by the Company for such purpose) to any corporation, where the corporation
formed by such consolidation or into which the Company is merged or the
corporation which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an entirety (treating the
Company and each Subsidiary of the Company as a single consolidated entity and
treating any sale by a Subsidiary or of a Subsidiary (including by merger) as a
sale by the Company for such purpose), shall be organized and existing under the
laws of the United States of America or a state thereof or the District of
Columbia, and such corporation shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form satisfactory
to the Trustee, the due and punctual payment of the principal of and any premium
and interest on all the Securities and the performance or observance of every
covenant of this Indenture on the part of the Company to be performed or
observed;
(b) the Trustee shall have received an Opinion of Counsel to the effect
that the transaction will not result in the successor being required to make any
deduction or withholding on account of any present or future tax, duty, levy,
impost, assessment or other governmental charge imposed or levied by or on
behalf of the Government of the United States, any state thereof or the District
of Columbia, or by any authority or agency therein or thereof having power to
tax from any payments in respect of the Securities, which deduction or
withholding is greater than any deduction or withholding to which the Company
was subject prior to the transaction;
(c) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Company, or any Subsidiary,
as a result of such transaction as having been incurred by the Company, or such
Subsidiary, at the time of such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of Default,
shall have happened and be continuing; and
(d) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture, comply with this
Article and that all conditions precedent herein provided for relating to such
transaction have been complied with.
8.2 SUCCESSOR SUBSTITUTED
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 8.1, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
corporation had been named as the Company herein, and thereafter the predecessor
corporation shall be relieved of all obligations and covenants under this
Indenture and the Securities.
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ARTICLE 9
SUPPLEMENTAL INDENTURES
9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(a) to evidence the succession of another corporation to the Company
and the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(b) to add to the covenants of the Company or to surrender any right or
power herein conferred upon the Company for the benefit of the Holders of all or
any series of Securities (and if such covenants or the surrender of such right
or power 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
(c) to add any additional Events of Default with respect to the
Securities of any or all series (and if such additional Events of Default are to
be for the benefit of less than all series of Securities, stating that such
additional Events of Default are expressly being included solely for the benefit
of one or more specified series); or
(d) to add or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of Securities
in bearer form, registrable or not registrable as to principal, and with or
without interest coupons, or to permit or facilitate the issuance of Securities
in uncertificated form; or
(e) to add, change or eliminate any of the provisions of this Indenture
in respect of one or more series of Securities, PROVIDED THAT any such addition,
change or elimination (i) shall neither (A) apply to any Security of any series
created prior to the execution of such supplemental indenture and entitled to
the benefit of such provision nor (B) modify the rights of the Holder of any
such Security with respect to such provision or (ii) shall become effective only
when there is no such Security Outstanding of such series; or
(f) to secure the Securities; or
(g) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 3.1; or
(h) to evidence and provide for the acceptance of appointment hereunder
by another corporation as 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 6.11(b); or
(i) to comply with the requirements of the Commission in connection
with the qualification of this Indenture under the TRUST INDENTURE ACT; or
(j) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to make any
other provisions with respect to matters or
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questions arising under this Indenture, PROVIDED THAT such action pursuant to
this clause 9.1(j) shall not adversely affect the interests of the Holders of
Outstanding Securities of any series; or
(k) to make provision with respect to the conversion rights of Holders
pursuant to the requirements of Article 14, including providing for the
conversion of the Securities into any security (other than the Common Stock of
the Company) or property of the Company; or
(l) to confirm to any mandatory provisions of law.
9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture or indentures, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the rights
of the Holders of Securities of each such series under this Indenture; PROVIDED,
HOWEVER, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby,
(a) change the Maturity or the Stated Maturity of the principal of, or
any installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium payable
upon the redemption thereof, or 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 5.2, or
change the method of computing the amount of principal thereof or interest
thereon on any date, or change any Place of Payment where, or the coin or
currency in which, any Security or any premium or interest thereon is payable,
or impair the right to institute suit for the enforcement of any such payment on
or after the Maturity or the Stated Maturity, as the case may be, thereof (or,
in the case of redemption, on or after the Redemption Date); or
(b) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences, provided for in this Indenture; or
(c) if applicable, make any change that adversely affects the right to
convert any Security to which the provisions of Article 14 are applicable or,
except as provided in this Indenture, decrease the conversion rate or increase
the conversion price for any Security; or
(d) modify any of the provisions of this Section, Section 5.13 or
Section 5.16, except to increase any such percentage, or to designate, in any
supplemental indenture, additional provisions of this Indenture which, with
respect to such series, cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby; PROVIDED, HOWEVER, that
this clause shall not be deemed to require the consent of any Holder with
respect to changes in the references to "the Trustee" and concomitant changes in
this Section and Section 5.16, or the deletion of this proviso, in accordance
with the requirements of Section 6.11(b) and 9.1(h); or
(e) modify the provisions of Article 14 hereof relating to conversion
of Securities of a series in a manner adverse to the holders of Securities of
such series; or
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(f) [IF APPLICABLE, INSERT -- modify the provisions of Article 15
hereof as it relates to Outstanding Securities of a series in a manner adverse
to the Holders of Securities of such series;]
A supplemental indenture which changes or eliminates any covenants or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
9.3 EXECUTION OF SUPPLEMENTAL INDENTURES
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.1) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
9.4 EFFECT OF SUPPLEMENTAL INDENTURES
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby to the extent provided therein.
9.5 REVOCATION AND EFFECT OF CONSENTS.
Until an amendment or supplement under this Article becomes effective,
a consent to it by a Holder of a Security 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 Security or portion of a Security if the
Trustee receives the notice of revocation before the date the amendment,
supplement or waiver becomes effective.
9.6 CONFORMITY WITH APPLICABLE LEGISLATION
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of Applicable Legislation.
9.7 REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Company and the Trustee, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
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9.8 WAIVER OF COMPLIANCE BY HOLDERS
Anything in this Indenture to the contrary notwithstanding, any of the
acts which the Company is required to do, or is prohibited from doing, by any of
the provisions of this Indenture may, to the extent that such provisions might
be changed or eliminated by a supplemental indenture pursuant to Section 9.2
upon consent of Holders of not less than a majority in aggregate principal
amount of the then Outstanding Securities of the series affected, be omitted or
done by the Company, if there is obtained the prior consent or waiver of the
Holders of at least a majority in aggregate principal amount of the then
Outstanding Securities of such series.
9.9 NOTICE OF SUPPLEMENTAL INDENTURE
Promptly after the execution by Company and the Trustees of any
supplemental indenture pursuant to the provisions of Section 9.2, the Company
shall give notice thereof to the Holders of each Outstanding Security affected,
in the manner provided for in Section 1.6, setting forth in general terms the
substance of such supplemental indenture.
ARTICLE 10
COVENANTS
10.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of such series in accordance with the terms of
the Securities and this Indenture and will duly comply with all the other terms,
agreements and conditions contained in, or made in this Indenture for the
benefit of, the Securities of such series.
10.2 MAINTENANCE OF OFFICE OR AGENCY
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of such series may be presented
or surrendered for payment, where Securities of such series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of such series and this Indenture
may be served. 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, Attention: Corporate Trust Department, and the Company
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; PROVIDED, HOWEVER, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in 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.
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10.3 MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of, or any premium or interest on, any of the Securities of such
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium and interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and the Company will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of, or
any premium or interest on, any Securities of such series, deposit with any such
Paying Agent a sum sufficient to pay such principal, premium (if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium (if any) or interest thereon and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities,
other than the Trustee, to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will: (a) hold all sums held by it for
the payment of the principal of (and premium, if any) or interest on Securities
in trust for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided; (b) give
the Trustee notice of any default by the Company (or any other obligor upon the
Securities) in the making of any payment of principal (and premium, if any) or
interest on the Securities of such series; and (c) at any time during the
continuance of any such default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such Paying Agent for
payment in respect of such series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture with respect to any series of
Securities or for any other purpose, pay, or the Company may by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, or any premium or
interest on, any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request (including interest income accrued on
such funds, if any), or (if then held by the Company) shall be discharged from
such trust; and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once in the WALL STREET JOURNAL or other daily newspaper of national
circulation in the United States or mail to each Holder of the Securities for
which the money to be repaid is held in trust, as their names and addresses
appear in the Security Register, a notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication or mailing, any unclaimed balance of such money
then remaining will be repaid to the Company.
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The Company initially authorizes the Trustee to act as Paying Agent for
the Securities on its behalf. The Company may at any time and from time to time
authorize one or more Persons to act as Paying Agent in addition to or in place
of the Trustee with respect to any series of Securities issued under this
Indenture.
10.4 STATEMENT BY OFFICERS AS TO DEFAULT
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company, is in default in the performance and observance of any of the
terms, provisions and conditions of this Indenture (without regard to any period
of grace or requirement of notice provided hereunder) and, if the Company shall
so be in default, specifying all such defaults and the nature and status thereof
of which they may have knowledge. Such statement need not include reference to
any default which has been fully cured prior to the date as of which such
statement speaks.
10.5 EXISTENCE
Subject to Article 8, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence.
[IF, PURSUANT TO A BOARD RESOLUTION, THE SECURITIES ARE DESIGNATED AS
SENIOR SUBORDINATED INDEBTEDNESS, THE FOLLOWING COVENANT SHOULD BE INSERTED.]
10.6 WAIVER OF CERTAIN COVENANTS
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Section 10.4, or any covenant added for the
benefit of any series of Securities as contemplated by Section 3.1 (unless
otherwise specified pursuant to Section 3.1) if before or after the time for
such compliance the Holders of a majority in principal amount of the Outstanding
Securities of all series affected by such omission (acting as one class) shall,
by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such covenant or condition, but no such waiver
shall extend to or affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such covenant or
condition shall remain in full force and effect.
10.7 LIMITATION ON SUBORDINATED INDEBTEDNESS
The Company shall not issue, assume, guarantee, incur or otherwise
become liable, directly or indirectly, for any indebtedness which is subordinate
or junior in right of payment to any Senior Indebtedness unless such
indebtedness constitutes Securities or is PARI PASSU or expressly subordinated
in right of payment to any Securities.
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ARTICLE 11
REDEMPTION OF SECURITIES
11.1 APPLICABILITY OF ARTICLE
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.1 for Securities of any series)
in accordance with this Article.
11.2 ELECTION TO REDEEM; NOTICE TO TRUSTEE
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution or in another manner specified as contemplated by Section
3.1 for such Securities. In case of any redemption at the election of the
Company of less than all the Securities of any series of the same tenor, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Securities of
such series to be redeemed and, if applicable, of the tenor of the Securities to
be redeemed, which notice shall be irrevocable. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
11.3 SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series and of a specified tenor 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, by such method
as the Trustee shall deem fair and appropriate and which 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 such series of a denomination larger than
the minimum authorized denomination for Securities of that series. Unless
otherwise provided in the terms of a particular series of Securities, the
portions of the principal of Securities so selected for partial redemption shall
be equal to the minimum authorized denomination of the Securities of such
series, or an integral multiple thereof, and the principal amount which remains
outstanding shall not be less than the minimum authorized denomination for
Securities of such series.
If any convertible or exchangeable Security selected for partial
redemption is converted in part before the termination of the conversion or
exchange right with respect to the portion of the Security so selected, the
converted or exchanged portion of such Security shall be deemed (so far as may
be) to be the portion selected for redemption.
Upon any redemption of fewer than all of the Securities of any given
series, the Company and the Trustee may treat as Outstanding any Securities
surrendered for conversion or exchange during the period of 15 days next
preceding the mailing of a notice of redemption, and need not treat as
Outstanding any Security authenticated and delivered during such period in
exchange for the unconverted portion of any Security converted in part during
such period.
The Trustee shall promptly notify the Company 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.
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For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
11.4 NOTICE OF REDEMPTION
Notice of redemption shall be given by first-class mail, postage
prepared, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, unless a shorter period is specified in the Securities to be redeemed, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
Any notice that is mailed to the Holder of any Securities in the manner
herein provided shall be conclusively presumed to have been duly given, whether
or not such Holder receives the notice.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price and the amount of accrued interest, if any, to
be paid;
(c) if less than all the Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption of any
Securities, the principal amounts) of the particular Securities to be redeemed;
(d) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the Holder of such Security will receive,
without charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed;
(e) that on the Redemption Date, the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date;
(f) in the case of any Securities that are convertible pursuant to
Article 14, the Conversion Price, the date on which the right to convert the
principal of the Securities to be redeemed will terminate and the place or
places where such Securities may be surrendered for conversion;
(g) the place or places where such Securities are to be surrendered for
payment of the Redemption Price; and
(h) that the redemption is for a sinking or purchase fund or other
analogous obligation, if such is the case.
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 request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
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11.5 DEPOSIT OF REDEMPTION PRICE
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.3) an amount of
money in same day funds (or New York Clearing House funds if such deposit is
made prior to the applicable Redemption Date) sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that date,
other than any Securities called for redemption on that date which have been
converted prior to the date of such deposit.
11.6 SECURITIES PAYABLE ON REDEMPTION DATE
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; PROVIDED, HOWEVER, that, unless otherwise specified as
contemplated by Section 3.1, installments of interest whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant record dates according to their terms and the
provisions of Section 3.7.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security and each Security shall remain convertible into Common Shares until
the principal of such Security shall have been paid or fully provided for.
11.7 SECURITIES REDEEMED IN PART
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and 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 like tenor, 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.
ARTICLE 12
SINKING FUNDS
12.1 APPLICABILITY OF ARTICLE
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.1 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
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sinking fund payment." If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 12.2. 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.
12.2 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES
The Company (a) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (b) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
Series; PROVIDED THAT such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
12.3 REDEMPTION OF SECURITIES FOR SINKING FUND
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering the crediting Securities of that series
pursuant to Section 12.2 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 11.3 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 11.4. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 11.6 and 11.7.
ARTICLE 13
DEFEASANCE AND COVENANT DEFEASANCE
13.1 COMPANY'S OPTION TO EFFECT DEFEASANCE AND COVENANT DEFEASANCE
The Company may elect, at its option by Board Resolution, at any time,
to have Section 13.2 or Section 13.3 applied to the Outstanding Securities of
any series designated pursuant to Section 3.1 as being defeasible pursuant to
this Article 13 (hereinafter called a "Defeasible Series"), upon compliance with
the conditions set forth below in this Article 13.
13.2 DEFEASANCE AND DISCHARGE
Upon the Company's exercise of the option provided in Section 13.1 to
have this Section 13.2 applied to the Outstanding Securities of any Defeasible
Series, the Company shall be deemed to have been discharged from its
obligations, with respect to the Outstanding Securities of such series as
provided in this Section on and after the date the conditions set forth in
Section 13.4 are satisfied (hereinafter called "Defeasance"). For this purpose,
such Defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the Outstanding Securities of
such series and to
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have satisfied all its other obligations under the Securities of such series and
this Indenture insofar as the Securities of such series are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), subject to the following which shall survive until
otherwise terminated or discharged hereunder: (1) the rights of Holders of
Securities of such series to receive, solely from the trust fund described in
Section 13.4 and as more fully set forth in such Section, payments in respect of
the principal of and any premium and interest on such Securities of such series
when payments are due, (2) the Company's obligations with respect to the
Securities of such series under Sections 3.4, 3.5, 3.6, 10.2 and 10.3, (3) the
rights, powers, trusts, duties and immunities of the Trustee hereunder,
including, without limitation, its rights under Section 6.7 and (4) this Article
13. Subject to compliance with this Article 13, the Company may exercise its
option provided in Section 13.1 to have this Section 13.2 applied to the
Outstanding Securities of any series notwithstanding the prior exercise of its
option provided in Section 13.1 to have Section 13.3 applied to the Outstanding
Securities of such series.
13.3 COVENANT DEFEASANCE
Upon the exercise by the Company of the option provided in Section 13.1
to have this Section 13.3 applied to the Outstanding Securities of any
Defeasible Series, (a) the Company shall be released from its obligations under
Section 10.5 [and 10.7], and under any other covenant to which the Company is
subject with respect to such series of Securities by virtue of Section 3.1(t)
and Article 8 and (b) the occurrence of any event specified in Sections 5.1(d)
(with respect to either of Section 10.5 [or 10.7] and any other covenant to
which the Company is subject with respect to such series of Securities by virtue
of Section 3.1(t) and Article 8), 5.1(e) and 5.1(h) shall be deemed not to be or
result in an Event of Default, in each case with respect to the Outstanding
Securities of such series as provided in this Section on and after the date the
conditions set forth in Section 13.4 are satisfied (hereinafter called "Covenant
Defeasance"). For this purpose, such Covenant Defeasance means that the Company
may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such specified Section (to the extent
so specified in the case of Section 5.1(d)), whether directly or indirectly by
reason of any reference elsewhere herein to any such Section or by reason of any
reference in any such Section to any other provision herein or in any other
document, but the remainder of this Indenture and the Securities of such series
shall be unaffected thereby. [IF APPLICABLE, INSERT --; provided, however, that
notwithstanding the provisions of Article 15, in the event that the Company
deposits money or government obligations in compliance with this Article 13, the
money or government obligations so deposited will not be subject to the
subordination provisions of Article 15 and the indebtedness evidenced by such
Outstanding Securities of any Defeasible Series will not be subordinated in
right of payment to the holders of applicable Senior Indebtedness to the extent
of the money or government obligations so deposited.]
13.4 CONDITIONS TO DEFEASANCE AND COVENANT DEFEASANCE
The following shall be the conditions to application of Section 13.2 or
13.3 to the Outstanding Securities of any Defeasible Series:
(a) The Company shall elect by Board Resolution to effect a Defeasance
pursuant to Section 13.2 or a Covenant Defeasance pursuant to Section 13.3 with
respect to the Outstanding Securities of any Defeasible Series.
(b) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee that satisfies the requirements
contemplated by Section 6.9 and agrees to comply with the provisions of this
Article 13 applicable to it) and conveyed all right, title and interest to the
Trustee for the benefit of the Holders of the Securities of such series, under
the terms of an irrevocable trust agreement in form and substance satisfactory
to the Trustee, as trust funds in trust for the purpose of
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making the following payments, specifically pledged to the Trustee as security
for, and dedicated solely to, the benefit of the Holders of Outstanding
Securities of such series, (i) an amount in the currency in which the Securities
of such series are denominated and in which payments of principal, premium (if
any) and interest are to be made, or (ii) the equivalent in Government
Obligations denominated in the currency in which the Securities of such series
are denominated and in which payments of principal, premium (if any), or
interest are to be made, issued by the government that issued such currency,
through the scheduled payment of principal and interest in respect thereof in
accordance with their terms, not later than one day before the due date of any
payment, money in an amount, or (iii) a combination thereof, in each case
sufficient, in the opinion of a nationally recognized firm of independent public
accountants or chartered accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, without consideration of
the reinvestment of such interest and after payment of all federal, state,
provincial and local taxes or other charges and assessments in respect thereof
payable by the Trustee and which shall be applied by the Trustee (or any such
other qualifying trustee) to pay and discharge each installment of principal
(including mandatory sinking fund payments) of, and premium (not relating to
optional redemption), if any, and interest on, the Outstanding Securities of
such series on the dates such installments of principal of, and premium (not
relating to optional redemption), if any, or interest are due up to the Stated
Maturity Date, or the Redemption Date, as the case may be (PROVIDED THAT in the
case of redemption, before such deposit, the Company must give to the Trustee,
in accordance with Section 11.2 hereof, a notice of its election to redeem the
Outstanding Securities at a future date in accordance with Article 11 hereof,
which notice shall be irrevocable).
(c) In the case of an election under Section 13.2, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the Company
has received from, or there has been published by, the Internal Revenue Service,
a ruling or (ii) since the date hereof, there has been a change in the
applicable Federal income tax law, in case of either (i) or (ii) to the effect
that, and based thereon such opinion shall confirm that, the Holders of such
Securities will not recognize gain or loss for Federal income tax purposes as a
result of the deposit, Defeasance and discharge to be effected with respect to
the Securities of such series and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would be the case if
such deposit, Defeasance and discharge were not to occur.
(d) In the case of an election under Section 13.3 with respect to any
series of Securities required to be registered under the SECURITIES ACT, the
Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Outstanding Securities of such series will not recognize
income, gain or loss for United States Federal income tax purposes as a result
of the deposit and Covenant Defeasance to be effected with respect to the
Securities of such series and will be subject to United States Federal income
tax on the same amount, in the same manner and at the same times as would be the
case if such deposit and Covenant Defeasance were not to occur.
(e) The Company shall have delivered to the Trustee an Officers'
Certificate to the effect that the Securities of such series, if then listed on
any securities exchange, will not be delisted as a result of such deposit.
(f) No Event of Default or event that (after notice of lapse of time or
both) would become an Event of Default shall have occurred and be continuing at
the time of such deposit or, with regard to any Event of Default or any such
event specified in Sections 5.1(f) and 5.1(g), at any time on or prior to the
123rd day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until after such 123rd day).
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(g) Such Defeasance or Covenant Defeasance shall not cause the Trustee
to have a conflicting interest within the meaning of Applicable Legislation
(assuming, in the case of the TRUST INDENTURE ACT, that all Securities are in
default within the meaning of such Act).
(h) Such Defeasance or Covenant Defeasance shall not result in a breach
or violation of, or constitute a default under, any other agreement or
instrument to which the Company is a party or by which it is bound.
(i) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
(j) With respect to any series of Securities required to be registered
under the SECURITIES ACT, such Defeasance or Covenant Defeasance shall not
result in the trust arising from such deposit constituting an investment company
within the meaning of the United States INVESTMENT COMPANY ACT of 1940, as
amended, unless such trust shall be qualified under such Act or exempt from
regulation thereunder.
13.5 DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS
Subject to the provisions of the last paragraph of Section 10.3, all
money and Government Obligations (including the proceeds thereof) deposited with
the Trustee or other qualifying trustee (solely for purposes of this Section and
Section 13.6, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 13.4 in respect of the
Securities of any Defeasible Series shall be held in trust and applied by the
Trustee, in accordance with the provisions of the Securities of such series and
this Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of Securities of such series, of all sums due and to
become due thereon in respect of principal and any premium and interest, but
money so held in trust need not be segregated from other funds except to the
extent required by law [IF APPLICABLE, INSERT -- and shall not be subject to the
claims of the holders of Senior Indebtedness.]
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 13.4 or the principal and interest received in respect
thereof other than any such tax, fee or other charge that by law is for the
account of the Holders of Outstanding Securities.
Notwithstanding anything in this Article 13 to the contrary, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations held by it as provided in Section
13.4 with respect to Securities of any Defeasible Series that, in the opinion of
a nationally recognized firm of independent public accountants or chartered
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof that would then be required to be
deposited to effect an equivalent Covenant Defeasance with respect to the
Securities of such series.
13.6 REINSTATEMENT
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article 13 with respect to the Securities of any series by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
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Company's obligations under this Indenture and the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article 13 with respect to Securities of such series until such time as the
Trustee or Paying Agent is permitted to apply all money held in trust pursuant
to Section 13.5 with respect to Securities of such series in accordance with
this Article 13; provided, however, that if the Company makes any payment of
principal of or any premium or interest on any Security of such series following
the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of Securities of such series to receive such payment from
the money so held in trust.
ARTICLE 14
CONVERSION OF SECURITIES
14.1 APPLICABILITY OF ARTICLE
The provisions of this Article shall be applicable to the Securities of
any series which are convertible into Common Shares, and the issuance of such
Common Shares upon the conversion of such Securities, except as otherwise
specified as contemplated by Section 3.1 for the Securities of such series.
14.2 EXERCISE OF CONVERSION PRIVILEGE
In order to exercise a conversion privilege, the Holder of a Security
of a series with such a privilege shall surrender such Security to the Company
at the office or agency maintained for that purpose pursuant to Section 10.2,
accompanied by written notice to the Company that the Holder elects to convert
such Security or a specified portion thereof. Such notice shall also state, if
different from the name and address of such Holder, the name or names (with
address) in which the certificate or certificates for Common Shares which shall
be issuable on such conversion shall be issued. Securities surrendered for
conversion shall (if so required by the Company or the Trustee) be duly endorsed
by or accompanied by instruments of transfer in forms satisfactory to the
Company and the Trustee duly executed by the registered Holder or its attorney
duly authorized in writing; and Securities so surrendered for conversion during
the period from the close of business on any Regular Record Date to the opening
of business on the next succeeding Interest Payment Date (excluding Securities
or portions thereof called for redemption during such period) shall also be
accompanied by payment of an amount equal to the interest payable on such
Interest Payment Date on the principal amount of such Security then being
converted, and such interest shall be payable to such registered Holder
notwithstanding the conversion of such Security, subject to the provisions of
Section 3.7 relating to the payment of Defaulted Interest by the Company. As
promptly as practicable after the receipt of such notice and of any payment
required pursuant to a Board Resolution and, subject to Section 3.3, set forth,
or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto setting forth the
terms of such series of Security, and the surrender of such Security in
accordance with such reasonable procedures as the Company may prescribe, the
Company shall issue and shall deliver, at the office or agency at which such
Security is surrendered, to such Holder or on its written order, a certificate
or certificates for the number of full Common Shares issuable upon the
conversion of such Security (or specified portion thereof), in accordance with
the provisions of such Board Resolution, Officers' Certificate or supplemental
indenture, and cash as provided therein in respect of any fractional share of
such Common Shares otherwise issuable upon such conversion. Such conversion
shall be deemed to have been effected immediately prior to the close of business
on the date on which such notice and such payment, if required, shall have been
received in proper order for conversion by the Company and such Security shall
have been surrendered as aforesaid (unless such Holder shall have so surrendered
such Security and shall have instructed the Company to effect the conversion on
a particular date following such surrender and such Holder shall be entitled to
convert such Security on such date, in which case such conversion shall be
deemed to be effected immediately prior to the close of business on such date)
and at such time the rights
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of the Holder of such Security as such Security Holder shall cease and the
person or persons in whose name or names any certificate or certificates for
Common Shares shall be issuable upon such conversion shall be deemed to have
become the Holder or Holders of record of the shares represented thereby. Except
as set forth above and subject to the final paragraph of Section 3.7, no payment
or adjustment shall be made upon any conversion on account of any interest
accrued on the Securities surrendered for conversion or on account of any
dividends on the Common Shares issued upon such conversion.
In the case of any Security which is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and
deliver to or on the order of the Holder thereof, at the expense, a new
Security or Securities of the same series, of authorized denominations, in
aggregate principal amount equal to the unconverted portion of such Security.
14.3 NO FRACTIONAL SHARES
No fractional share of Common Shares shall be issued upon conversions
of Securities of any series. If more than one Security shall be surrendered for
conversion at one time by the same Holder, the number of full shares which shall
be issuable upon conversion shall be computed on the basis of the aggregate
principal amount of the Securities (or specified portions thereof to the extent
permitted hereby) so surrendered. If, except for the provisions of this Section
14.3, any Holder of a Security or Securities would be entitled to a fractional
share of Common Shares upon the conversion of such Security or Securities, or
specified portions thereof, the Company shall pay to such Holder an amount in
cash equal to the current market value of such fractional share computed, (i) if
such Common Shares are listed or admitted to unlisted trading privileges on a
national securities exchange, on the basis of the last reported sale price
regular way on such exchange on the last trading day prior to the date of
conversion upon which such a sale shall have been effected, or (ii) if such
Common Shares are not at the time so listed or admitted to unlisted trading
privileges on a national securities exchange, on the basis of the average of the
bid and asked prices of such Common Shares in the over-the-counter market, on
the last trading day prior to the date of conversion, as reported by the
National Quotation Bureau, Incorporated or similar organization if the National
Quotation Bureau, Incorporated is no longer reporting such information, or if
not so available, the fair market price as determined by the Board of Directors.
For purposes of this Section, "trading day" shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday other than any day an which the Common Shares are
not traded on the New York Stock Exchange, or if the Common Shares are not
traded on the New York Stock Exchange, on the principal exchange or market on
which the Common Shares is traded or quoted.
14.4 ADJUSTMENT OF CONVERSION PRICE
The conversion price of Securities of any series that is convertible
into Common Shares shall be adjusted for any stock dividends, stock splits,
reclassification, combinations or similar transactions in accordance with the
term of the supplemental indenture or Board Resolutions setting forth the terms
of the Securities of such series.
Whenever the conversion price is adjusted, the Company shall compute
the adjusted conversion price in accordance with terms of the applicable Board
Resolution or supplemental indenture and shall prepare an Officers' Certificate
setting forth the adjusted conversion price and showing in reasonable detail the
facts upon which such adjustment is based, and such certificate shall forthwith
be filed at each office or agency maintained for the purpose of conversion of
Securities pursuant to Section 10.2 and, if different, with the Trustee. The
Company shall forthwith cause a notice setting forth the adjusted conversion
price to be mailed, first class postage prepaid, to each Holder of Securities of
such series at its address appearing on the Security Register and to any
conversion agent other than the Trustee.
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14.5 NOTICE OF CERTAIN CORPORATE ACTIONS
In case:
(a) the Company shall declare a dividend (or any other distribution) on
its Common Shares payable otherwise than in cash out of its retained earnings
(other than a dividend for which approval of any stockholders of the Company is
required); or
(b) the Company shall authorize the granting to the holders of its
Common Shares of rights, options or warrants to subscribe for or purchase any
shares of capital stock of any class or of any other rights (other than any such
grant for which approval of any stockholders of the Company is required); or
(c) of any reclassification of the Common Shares (other than a
subdivision or combination of its outstanding shares of Common Shares , or of
any consolidation, merger or share exchange to which the Company is a party and
for which approval of any stockholders of the Company is required), or of the
sale of all or substantially all of the assets; or
(d) of the voluntary or involuntary dissolution, liquidation or winding
up;
then the Company shall cause to be filed with the Trustee, and shall cause to be
mailed to all Holders at their last addresses as they shall appear in the
Securities Register, at least 20 days (or 10 days in any case specified in
clause (a) or (b) above) prior to the applicable record date hereinafter
specified, a notice stating (i) the date on which a record is to be taken for
the purpose of such dividend, distribution, rights, options or warrants, or, if
a record is not to be taken, the date as of which the holders of Common Shares
of record to be entitled to such dividend, distribution, rights, options or
warrants are to be determined, or (ii) the date on which such reclassification,
consolidation, merger, share exchange, sale, dissolution, liquidation or winding
up is expected to become effective, and the date as of which it is expected that
holders of Common Shares of record shall be entitled to exchange their Common
Shares for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, share exchange, sale, dissolution,
liquidation or winding up. If at any time the Trustee shall not be the
conversion agent, a copy of such notice shall also forthwith be filed by the
Company with the Trustee.
14.6 RESERVATION OF SHARES OF COMMON SHARES
The Company shall at all times reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Shares, for the
purpose of effecting the conversion of Securities, the full number of Common
Shares then issuable upon the conversion of all outstanding Securities of any
series that has conversion rights.
14.7 PAYMENT OF CERTAIN TAXES UPON CONVERSION
The Company will pay any and all taxes that may be payable in respect
of the issue or delivery of shares of its Common Shares on conversion of
Securities pursuant hereto. The Company shall not, however, be required to pay
any tax which may be payable in respect of any transfer involved in the issue
and delivery of shares of its Common Shares in a name other than that of the
Holder of the Security or Securities to be converted, and no such issue or
delivery shall be made unless and until the Person requesting such issue has
paid to the Company the amount of any such tax, or has established, to the
satisfaction, that such tax has been paid.
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14.8 NONASSESSABILITY
The Company covenants that all Common Shares which may be issued upon
conversion of Securities will upon issue in accordance with the terms hereof be
duly and validly issued and fully paid and nonassessable.
14.9 EFFECT OF CONSOLIDATION OR MERGER ON CONVERSION PRIVILEGE
In case of any consolidation of the Company with, or merger into or
with any other Person, or in case of any sale of all or substantially all of the
assets of the Company, the Company or the Person formed by such consolidation or
the Person into which the Company shall have been merged or the Person which
shall have acquired such assets, as the case may be, shall execute and deliver
to the Trustee a supplemental indenture in accordance with Section 8.1 providing
that the Holder of each Security then outstanding of any series that is
convertible into Common Shares shall have the right, which right shall be the
exclusive conversion right thereafter available to said Holder (until the
expiration of the conversion right of such Security), to convert such Security
into the kind and amount of shares of stock or other securities or property
(including cash) receivable upon such consolidation, merger or sale by a holder
of the number of Common Shares into which such Security might have been
converted immediately prior to such consolidation, merger or sale, subject to
compliance with the other provisions of this Indenture, such Security and such
supplemental indenture. Such supplemental indenture shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in such Security. The above provisions of this Section
shall similarly apply to successive consolidations, mergers or sales. It is
expressly agreed and understood that anything in this Indenture to the contrary
notwithstanding, if, pursuant to such merger, consolidation or sale, holders of
outstanding Common Shares do not receive Common Shares of the surviving
corporation but receive other securities, cash or other property or any
combination thereof, Holders of Securities shall not have the right to
thereafter convert their Securities into Common Shares of the surviving
corporation or the corporation which shall have acquired such assets, but
rather, shall have the right upon such conversion to receive the other
securities, cash or other property receivable by a holder of the number of
Common Shares into which the Securities held by such holder might have been
converted immediately prior to such consolidation, merger or sale, all as more
fully provided in the first sentence of this Section 14.9. Anything in this
Section 14.9 to the contrary notwithstanding, the provisions of this Section
14.9 shall not apply to a merger or consolidation of another corporation with or
into the Company pursuant to which both of the following conditions are
applicable: (i) the Company is the surviving corporation and (ii) the
outstanding Common Shares are not changed or converted into any other securities
or property (including cash) or changed in number or character or reclassified
pursuant to the terms of such merger or consolidation.
As evidence of the kind and amount of shares of stock or other
securities or property (including cash) into which Securities may properly be
convertible after any such consolidation, merger or sale, or as to the
appropriate adjustments of the conversion prices applicable with respect
thereto, the Trustee shall be furnished with and may accept the certificate or
opinion of an independent certified public accountant with respect thereto; and,
in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely thereon, and shall not be responsible or accountable to any
Holder of Securities for any provision in conformity therewith or approved by
such independent certified accountant which may be contained in said
supplemental indenture.
14.10 DUTIES OF TRUSTEE REGARDING CONVERSION
Neither the Trustee nor any conversion agent shall at any time be under
any duty or responsibility to any Holder of Securities of any series that is
convertible into Common Shares to determine whether any facts exist which may
require any adjustment of the conversion price, or with respect to the nature or
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extent of any such adjustment when made, or with respect to the method employed,
whether herein or in any supplemental indenture, any resolutions of the Board of
Directors or written instrument executed by one or more officers of the Company
provided to be employed in making the same. Neither the Trustee nor any
conversion agent shall be accountable with respect to the validity or value (or
the kind or amount) of any Common Shares, or of any securities or property,
which may at any time be issued or delivered upon the conversion of any
Securities and neither the Trustee nor any conversion agent makes any
representation with respect thereto. Subject to the provisions of Section 6.1,
neither the Trustee nor any conversion agent shall be responsible for any
failure of the Company to issue, transfer or deliver any of its Common Shares or
stock certificates or other securities or property upon the surrender of any
Security for the purpose of conversion or to comply with any of the covenants of
the Company contained in this Article 14 or in the applicable supplemental
indenture, resolutions of the Board of Directors or written instrument executed
by one or more duly authorized officers of the Company.
14.11 REPAYMENT OF CERTAIN FUNDS UPON CONVERSION
Any funds which at any time shall have been deposited by the Company or
on its behalf with the Trustee or any other paying agent for the purpose of
paying the principal of, and premium, if any, and interest, if any, on any of
the Securities (including funds deposited for the sinking fund referred to in
Article 3 hereof) and which shall not be required for such purposes because of
the conversion of such Securities as provided in this Article 14 shall after
such conversion be repaid to the Company by the Trustee upon the Company's
written request by Company Request.
14.12 CANCELLATION OF CONVERTED SECURITIES
All securities surrendered for conversion pursuant to Section 14.2
shall be delivered to the Company and shall be cancelled concurrently with such
conversion.
ARTICLE 15
SUBORDINATION
[THIS ARTICLE SHALL BE RESERVED, UNLESS PURSUANT TO A BOARD RESOLUTION
WITH RESPECT TO THE SECURITIES OF ANY SERIES, THE SECURITIES OF SUCH SERIES ARE
DESIGNATED AS SENIOR SUBORDINATED INDEBTEDNESS OR SUBORDINATED INDEBTEDNESS, IN
WHICH CASE THE FOLLOWING PROVISIONS SHOULD BE INSERTED].
15.1 SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS
The Company covenants and agrees, and each Holder of Securities of each
series, by his acceptance thereof, likewise covenants and agrees, that the
indebtedness represented by the Securities of such series, including the
principal of (and premium, if any) and interest thereon, shall be subordinate
and subject in right of payment, to the extent and in the manner hereinafter set
forth, to the prior payment in full of all Senior Indebtedness of the Company
with respect thereto, whether outstanding on the date of original issuance of
Securities of such series or thereafter incurred; PROVIDED, HOWEVER, that each
series of Securities designated as Senior Indebtedness shall in all respects
rank PARI PASSU with all other series of Securities designated as Senior
Indebtedness; that each series of Securities designated as Senior Subordinated
Indebtedness shall in all respects rank PARI PASSU with all other series of
Securities designated as Senior Subordinated Indebtedness; and that each series
of Securities designated as Subordinated Indebtedness shall in all respects rank
PARI PASSU will all other series of Securities designated as Subordinated
Indebtedness.
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15.2 PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In the event of (a) any insolvency or bankruptcy case or proceeding, or
any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its assets, or
(b) any liquidation, dissolution or other winding up of the Company, whether
voluntary or involuntary and whether or not involving insolvency or bankruptcy,
or (c) any assignment for the benefit of creditors or any other marshaling of
the assets and liabilities of the Company, then and in any such event specified
in (a), (b) or (c) above (each such event, if any, herein sometimes referred to
as a "Proceeding"), the holders of Senior Indebtedness shall be entitled to
receive payment in full of all amounts due or to become due on or in respect of
all Senior Indebtedness, or provision shall be made in money or money's worth
before the Holders of the Securities are entitled to receive any payment or
distribution of assets of the Company, of any kind or character, whether in
cash, property or securities, on account of principal of (or premium, if any) or
interest on the Securities or on account of any purchase or other acquisition of
Securities by the Company or any Subsidiary of the Company (all such payments,
distributions, purchases and acquisitions by the Company herein referred to,
individually and collectively, as a "Securities Payment"), and to that end the
holders of Senior Indebtedness shall be entitled to receive, for application to
the payment thereof, any Securities Payment which may be payable or deliverable
in respect of the Securities in any such Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
Securities Payment before all Senior Indebtedness is paid in full or payment
thereof provided for, and if such fact shall, at or prior to the time of such
Securities Payment, have been made known to a Responsible Officer of the Trustee
or, as the case may be, such Holder, then and in such event such Securities
Payment shall be paid over or delivered forthwith to the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee, agent or other Person making
payment or distribution of assets of the Company, for application to the payment
of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all
Senior Indebtedness in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
For purposes of this Article only, the words "cash, property or
securities" shall not be deemed to include shares or other securities of the
Company provided for by a plan or reorganization or readjustment as reorganized
or readjusted, or securities of the Company or any other corporation which are
subordinated in right of payment to all then outstanding Senior Indebtedness to
substantially the same extent as, or to a greater extent than, the Securities
are so subordinated as provided in this Article. The consolidation of the
Company with, or the merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the conveyance, transfer,
sale or lease of its properties and assets substantially as an entirety to
another corporation upon the terms and conditions set forth in Article 8 shall
not be deemed a Proceeding for the purposes of this Section if the corporation
formed by such consolidation or into which the Company is merged or the
corporation which acquires by conveyance, transfer, sale or lease such
properties and assets substantially as an entirety, as the case may be, shall,
as a part of such consolidation, merger, conveyance, transfer, sale or lease,
comply with the conditions set forth in Article 8.
15.3 PRIOR PAYMENT TO SENIOR INDEBTEDNESS UPON ACCELERATION OF
SECURITIES
In the event that any Securities are declared due and payable before
their Stated Maturity (an "Acceleration of Securities"), the holders of the
Senior Indebtedness outstanding at the time of such Acceleration of Securities
shall be entitled to receive payment in full of all amounts due or which become
due as a result of such Acceleration of Securities on or in respect of all such
Senior Indebtedness, or
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provision shall be made for such payment in money or money's worth, before the
Holders of the Securities are entitled to receive any Securities Payment.
In the event that, notwithstanding the foregoing, the Company shall
make any Securities Payment to the Trustee or any Holder prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such Securities Payment, have been made known to a Responsible Officer
of the Trustee or such Holder, as the case may be, then and in such event such
Securities Payment shall be paid over and delivered forthwith to the Company,
for application to the payment of all Senior Indebtedness remaining unpaid, to
the extent necessary to pay all Senior Indebtedness in full, after giving effect
to any concurrent payment or distribution to or for the holders of Senior
Indebtedness.
The provisions of this Section shall not apply to any Securities
Payment with respect to which Section 15.2 would be applicable.
15.4 NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT
(a) In the event and during the continuation of any default in the
payment of principal of (or premium, if any) or interest on or other monetary
obligation with respect to any Senior Indebtedness beyond any applicable grace
period with respect thereto or, with respect to any series of Securities
designated as Subordinated Indebtedness, in the event that any event of default
with respect to any Senior Indebtedness shall have occurred and be continuing
permitting the holders of such Senior Indebtedness (or a trustee or other
representative on behalf of the holders thereof) to declare such Senior
Indebtedness due and payable prior to the date on which it would otherwise have
become due and payable, unless and until such event of default shall have been
cured or waived or shall have ceased to exist and, if any such Senior
Indebtedness shall have been accelerated, such acceleration shall have been
rescinded or annulled, or in the event any judicial proceeding shall be pending
with respect to any such default, then no Securities Payment shall be made to
the Trustee or any Holder in respect of the Securities; provided, however, that
nothing in this Section shall prevent the satisfaction of any sinking fund
payment in accordance with Article 12 by delivering and crediting pursuant to
Section 12.2 Securities which have been acquired (upon redemption or otherwise)
prior to such default in payment or event of default or which have been
converted pursuant to Article 14.
(b) In addition and notwithstanding the foregoing, with respect to any
series of Securities designated as Senior Subordinated Indebtedness or
Subordinated Indebtedness, during the continuance of any event of default other
than the payment of principal of (or premium, if any) or interest on or other
monetary obligation with respect to any Senior Indebtedness, no payment may be
made by the Company upon or in respect of any series of Securities designated as
Senior Subordinated Indebtedness or Subordinated Indebtedness for a payment
blockage period ("Payment Blockage Period") commencing on the date the Company
shall have received a notice from a holder of Senior Indebtedness or a trustee
or other representative thereof and ending 179 days thereafter (unless such
event of default shall have been cured or waived or such Payment Blockage Period
shall have been terminated by written notice to the Company from such holder,
trustee or representative thereof). Notwithstanding anything to the contrary
herein, in no event shall any one Payment Blockage Period extend beyond 179
days. Notwithstanding anything to the contrary herein, Payment Blockage Periods
aggregating more than 179 days may not be commenced with respect to any series
of Securities designated as Senior Subordinated Indebtedness or Subordinated
Indebtedness during any period of 360 consecutive days.
(c) In the event that, notwithstanding the foregoing, the Company shall
make any Securities Payment to the Trustee or any Holder prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such Securities Payment, have been made known to a Responsible Officer
of the Trustee or, as the case may be, such Holder then and in such event such
Securities Payment
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xxxxx xx paid over and delivered forthwith to the Company for application to the
payment of all Senior Indebtedness remaining unpaid, to the extent necessary to
pay all Senior Indebtedness in full, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Indebtedness.
(d) The provisions of this Section 15.4 shall not apply to any
Securities Payment with respect to which Section 15.2 would be applicable.
15.5 PAYMENT PERMITTED IF NO DEFAULT
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities shall prevent (a) the Company at any time except during
the pendency of any Proceeding referred to in Section 15.2 or under the
conditions described in Section 15.3 or 15.4, from making at any time Securities
Payments, or (b) the application by the Trustee of any money deposited with it
hereunder to Securities Payments or the retention of such Securities Payment by
the Holders, if, at the time of such application by the Trustee, it did not have
actual knowledge that such Securities Payment would have been prohibited by the
provisions of this Article.
15.6 SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS
Subject to the payment in full of all Senior Indebtedness, the Holders
of the Securities shall be subrogated to the rights of the holders of such
Senior Indebtedness to receive payments and distributions of cash, property and
securities applicable to the Senior Indebtedness until the principal of (and
premium, if any) and interest on the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holder of the
Senior Indebtedness of any cash, property or securities to which the Holders of
the Securities or the Trustee would be entitled except for the provisions of
this Article, and no payments over pursuant to the provisions of this Article to
the holders of Senior Indebtedness by Holders of the Securities or the Trustee,
shall, as among the Company, creditors other than holders of Senior Indebtedness
and the Holders of the Securities, be deemed to be a payment or distribution by
the Company to or on account of the Senior Indebtedness.
15.7 PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS AND SUBJECT TO
APPLICABLE LAWS
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities on the
one hand and the holders of Senior Indebtedness on the other hand and are
subject to all applicable laws, including, in the case of the bankruptcy or
insolvency of the Company, the potential application of Canadian legislation.
Nothing contained in this Article or elsewhere in this Indenture or in the
Securities is intended to or shall (a) impair, as among the Company, the
creditors of the Company, other than holders of Senior Indebtedness and the
Holders of the Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Securities the principal of and
interest on the Securities as and when the same shall become due and payable in
accordance with their terms; or (b) affect the relative rights against the
Company of the Holders of the Securities and creditors of the Company, other
than the holders of Senior Indebtedness; or (c) prevent the Trustee or the
Holder of any Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
under this Article of the holders of Senior Indebtedness to receive cash,
property and securities otherwise payable or deliverable to the Trustee or such
Holder.
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15.8 TRUSTEE TO EFFECTUATE SUBORDINATION
Each Holder of a Security, by his acceptance thereof, authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
15.9 NO WAIVER OF SUBORDINATION PROVISIONS
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company,
or by any act or failure to act, in good faith, by any such holder, or by any
non-compliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Holders of the Securities to the holders of
Senior Indebtedness, do any one or more of the following: (i) change the manner,
place or terms of payment or the time of payment of, or renew or alter Senior
Indebtedness, or otherwise amend or supplement in any manner Senior Indebtedness
or any instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding; (ii) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing Senior Indebtedness; (iii)
release any Person liable in any manner for the collection of Senior
Indebtedness; and (iv) exercise or refrain from exercising any rights against
the Company or any other Person.
15.10 NOTICE TO TRUSTEE
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities. Notwithstanding the provisions of this
Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Indebtedness or from any trustee therefor or
representative thereof, and prior to the receipt of any such written notice, the
Trustee, subject to the provisions of Section 6.1, shall be entitled in all
respects to assume that no such facts exist; PROVIDED, HOWEVER, that if the
Trustee shall not have received the notice provided for in this Section at least
two Business Days prior to the date upon which by the terms hereof any money may
become payable for any purpose (including, without limitation, the payment of
the principal of (and premium, if any) or interest on any Security), then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such money and to apply the same to the
purpose for which such money was received and shall not be affected by any
notice to the contrary which may be received by it within two Business Days
prior to the date such amounts may be payable.
Subject to the provisions of Section 6.1, the Trustee shall be entitled
to rely on the delivery to it of a written notice, and proof of ownership
acceptable to the Trustee, by a Person representing himself to be a holder of
Senior Indebtedness (or a trustee therefor or representative thereof) to
establish that such notice has been given by a holder of Senior Indebtedness (or
a trustee therefor or representative thereof). In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Indebtedness to participate in any
payment or distribution pursuant to this Article, the Trustee may request such
Person to furnish evidence to the reasonable
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satisfaction of the Trustee as to the amount of Senior Indebtedness held by such
Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article, and if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
15.11 RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to the provisions of Section 6.1, and the
Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such Proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other Person
making such payment or distribution, delivered to the Trustee or to the Holders
of Securities for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article.
15.12 TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if it
shall in good faith and absent gross negligence or willful misconduct,
mistakenly pays over or distributes to Holders of Securities or to the Company
or to any other Person cash, property or securities to which any holders of
Senior Indebtedness shall be entitled by virtue of this Article or otherwise.
15.13 RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS;
PRESERVATION OF TRUSTEE'S RIGHTS
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness which
may at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.7.
15.14 ARTICLE APPLICABLE TO PAYING AGENTS
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; PROVIDED,
HOWEVER, that Sections 15.10 and 15.13 shall not apply to the Company or any
Affiliate of the Company if it or such Affiliate acts as Paying Agent.
15.15 DEFEASANCE OF THIS ARTICLE 15
The subordination of the Securities provided by this Article 15 is
expressly made subject to the provisions for defeasance or covenant defeasance
in Article 13 and, anything herein to the contrary
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notwithstanding, upon the effectiveness of any such defeasance or covenant
defeasance, the Securities then outstanding shall thereupon cease to be
subordinated pursuant to this Article 15.
15.16 SUBSIDIARIES
No payment, distribution of assets or other action may be taken by any
Subsidiary of the Company with respect to the Securities if the Company would be
prohibited by this Article 15 from taking such action.
15.17 RESCISSION
The provisions of this Article 15 shall continue to be effective or be
reinstated, as the case may be, if at any time any payment in respect of any of
the Senior Indebtedness is rescinded or must otherwise be returned by the holder
thereof upon the insolvency, bankruptcy or reorganization of the Company or
otherwise, all as though such payment had not been made.
15.18 CERTAIN CONVERSIONS OR EXCHANGES DEEMED PAYMENT
For purposes of this Article only, (a) the issuance and delivery of
junior securities upon conversion or exchange of Securities in accordance with
their terms shall not be deemed to constitute a Securities Payment, and (b) the
payment, issuance or delivery of cash, property or securities (other than junior
securities) upon conversion or exchange of a Security shall be deemed to
constitute a Securities Payment. For the purposes of this Section, the term
"junior securities" means (i) shares of any class of the Company and (ii) other
securities of the Company which are subordinated in right of payment to all
Senior Indebtedness which may be outstanding at the time of issuance or delivery
of such securities to substantially the same extent as, or to a greater extent
than, the Securities are so subordinated as provided in this Article. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities is
intended to or shall impair, as among the Company, its creditors other than
holders of Senior Indebtedness and the Holders of the Securities, the right
which is absolute and unconditional, of the Holder of any Security to convert or
exchange such Security in accordance with its terms.
ARTICLE 16
MEETINGS OF HOLDERS OF SECURITIES
16.1 PURPOSES FOR WHICH MEETINGS MAY BE CALLED
A meeting of Holders of Securities of any or all series may be called
at any time and from time to time pursuant to this Article to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this indenture to be made, given or taken by Holders of
Securities of such series.
16.2 CALL, NOTICE AND PLACE OF MEETINGS
(a) The Trustee may at any time call a meeting of Holders of Securities
of any series for any purpose specified in Section 16.1, to be held at such time
and at such place in Houston, Texas, in New York, New York or in any other
location, as the Trustee shall determine. Notice of every meeting of Holders of
Securities of any series, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such meeting, shall be
given, in the manner specified in Section 1.6, not less than 20 nor more than
180 days prior to the date fixed for the meeting.
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(b) In case at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 10% in aggregate principal amount of the Outstanding
Securities of any series, shall have requested the Trustee for any such series
to call a meeting of the Holders of Securities of such series for any purpose
specified in Section 16.1, by written request setting forth in reasonable detail
the action proposed to be taken at the meeting, and the Trustee shall not have
made the first publication of the notice of such meeting within 30 days after
receipt of such request or shall not thereafter proceed to cause the meeting to
be held as provided herein, then the Company or the Holders of Securities of
such series in the amount above specified, as the case may be, may determine the
time and the place in Houston, Texas, or in New York, New York, for such meeting
and may call such meeting for such purposes by giving notice thereof as provided
in Subsection (a) of this Section.
16.3 PERSONS ENTITLED TO VOTE AT MEETINGS
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
16.4 QUORUM; ACTION
The Persons entitled to vote a majority in aggregate principal amount
of the Outstanding Securities of a series shall constitute a quorum for a
meeting of Holders of Securities of such series. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of Securities of such series, be
dissolved. In any other case, the meeting may be adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Subject to Section 16.5(d), notice of the
reconvening of any adjourned meeting shall be given as provided in Section
16.2(a), except that such notice need be given only once not less than five days
prior to the date on which the meeting is scheduled to be reconvened. Notice of
the reconvening of an adjourned meeting shall state expressly that Persons
entitled to vote a majority in principal amount of the Outstanding Securities of
such series shall constitute a quorum.
Except as limited by the proviso to Section 9.2, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of a
majority in aggregate principal amount of the Outstanding Securities of that
series; provided, however, that, except as limited by the proviso to Section
9.2, any resolution with respect to any request, demand, authorization,
direction, notice, consent or waiver which this Indenture expressly provides may
be made, given or taken by the Holders of a specified percentage that is less
than a majority in aggregate principal amount of the Outstanding Securities of a
series may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the Holders
of such specified percentage in aggregate principal amount of the Outstanding
Securities of that series.
Except as limited by the proviso to Section 9.2, any resolution passed
or decision taken at any meeting of Holders of Securities of any series duly
held in accordance with this Section shall be binding on all the Holders of
Securities of such series, whether or not present or represented at the meeting.
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16.5 DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS
(a) The holding of Securities shall be proved in the manner specified
in Section 1.3, and the appointment of any proxy shall be proved in the manner
specified in Section 1.3. Such regulations may provide that written instruments
appointing proxies, regular or on their face, may be presumed valid and genuine
without the proof specified in Section 1.3 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 16.2(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall appoint a temporary chairman. A permanent chairman and
a permanent secretary of the meeting shall be elected by vote of the Persons
entitled to vote a majority in aggregate principal amount of the Outstanding
Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series and each
proxy shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or as a proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 16.2 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in aggregate principal amount of
the Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
16.6 COUNTING VOTES AND RECORDING ACTION OF MEETINGS
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at he meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting, and there shall be
attached to such record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that such notice was given as provided in Section 16.2 and, if
applicable, Section 16.4. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting., Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
XXXXXXXXX ENERGY, INC.
By:
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Name:
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Title:
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ATTEST:
, as Trustee
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By:
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Name:
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Title:
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ATTEST:
By:
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Name:
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Title:
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