================================================================================
ENERGY PARTNERS, LTD.,
as Issuer
and
[ ],
as Trustee
INDENTURE
Dated as of [ ], [ ]
SUBORDINATED DEBT SECURITIES
================================================================================
ENERGY PARTNERS, LTD.
CROSS-REFERENCE SHEET
This Cross-Reference Sheet shows the location in this Indenture of the
provisions inserted pursuant to Sections 310-318(a), inclusive, of the Trust
Indenture Act of 1939, as amended. This Cross-Reference Sheet shall not, for any
purpose, be deemed to be a part of this Indenture.
Trust Indenture Indenture
Act Section Section
----------- -------
ss.310(a)(1),(2)........................................... 6.09
(a)(3),(4).......................................... Not Applicable
(a)(5).............................................. 6.09
(b)................................................. 6.08, 6.10
(c)................................................. Not Applicable
ss.311(a),(b).............................................. 6.13
(c)................................................. Not Applicable
ss.312(a) ................................................. 7.01, 7.02(a)
(b)................................................. 7.02(b)
(c)................................................. 7.02(c)
ss.313(a)(1)-(4),(6)-(8)................................... 7.03(a)
(a)(5).............................................. Not Applicable
(b)(1).............................................. Not Applicable
(b)(2).............................................. 7.03
(c),(d)............................................. 7.03
ss.314(a) ................................................. 7.04
(b)................................................. Not Applicable
(c)(1),(2).......................................... 1.03
(c)(3).............................................. Not Applicable
(d)................................................. Not Applicable
(e)................................................. 1.03
(f)................................................. Not Applicable
ss.315(a) ................................................. 6.01(a)
(b)................................................. 6.02
(c)................................................. 6.01(b)
(d)................................................. 6.01(c)
(d)(1).............................................. 6.01(a)
(d)(2).............................................. 6.01(c)(2)
(d)(3).............................................. 6.01(c)(3)
(e)................................................. 5.14
ss.316(a)(1)(A)............................................ 5.12
(a)(1)(B)........................................... 5.13
(a)(2).............................................. Not Applicable
(b)................................................. 5.08
ss.317(a)(1)............................................... 5.03
(a)(2).............................................. 5.04(a)
(b)................................................. 10.03
ss.318(a) ................................................. 1.08
TABLE OF CONTENTS
Page
----
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01. Definitions...........................................1
SECTION 1.02. Incorporation by Reference of Trust Indenture Act.....6
SECTION 1.03. Compliance Certificates and Opinions..................7
SECTION 1.04. Form of Documents Delivered to Trustee................7
SECTION 1.05. Acts of Holders.......................................8
SECTION 1.06. Notices, Etc., to Trustee and Company.................9
SECTION 1.07. Notices to Holders; Waiver............................9
SECTION 1.08. Conflict With Trust Indenture Act....................10
SECTION 1.09. Effect of Headings and Table of Contents.............10
SECTION 1.10. Successors and Assigns...............................10
SECTION 1.11. Separability Clause..................................10
SECTION 1.12. Benefits of Indenture................................10
SECTION 1.13. Governing Law........................................11
SECTION 1.14. Legal Holidays.......................................11
ARTICLE TWO
FORM OF SECURITIES
SECTION 2.01. Forms Generally......................................11
SECTION 2.02. Form of Trustee's Certificate of Authentication......12
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Title and Terms......................................12
SECTION 3.02. Denominations........................................15
SECTION 3.03. Execution, Authentication, Delivery and Dating.......15
SECTION 3.04. Temporary Securities.................................16
SECTION 3.05. Registration; Registration of Transfer and Exchange..17
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities.....18
SECTION 3.07. Payment of Interest; Interest Rights Preserved.......19
-i-
Page
----
SECTION 3.08. Persons Deemed Owners................................20
SECTION 3.09. Cancellation.........................................20
SECTION 3.10. Computation of Interest..............................20
SECTION 3.11. CUSIP Numbers........................................21
SECTION 3.12. Book-Entry Provisions for Global Security............21
ARTICLE FOUR
SATISFACTION AND DISCHARGE; DEFEASANCE; UNCLAIMED MONEYS
SECTION 4.01. Satisfaction and Discharge of Indenture..............22
SECTION 4.02. Legal Defeasance of Securities of any Series.........23
SECTION 4.03. Covenant Defeasance..................................25
SECTION 4.04. Deposited Moneys To Be Held in Trust by Trustee......26
SECTION 4.05. Paying Agent To Repay Moneys Held....................26
SECTION 4.06. Return of Unclaimed Moneys...........................26
SECTION 4.07. Reinstatement........................................27
ARTICLE FIVE
REMEDIES
SECTION 5.01. Events of Default....................................27
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment...28
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement
by Trustee.........................................30
SECTION 5.04. Trustee May File Proofs of Claim.....................30
SECTION 5.05. Trustee May Enforce Claims Without Possession of
Securities.........................................31
SECTION 5.06. Application of Money Collected.......................31
SECTION 5.07. Limitation on Suits..................................32
SECTION 5.08. Unconditional Right of Holders To Receive Principal
and Interest.......................................33
SECTION 5.09. Restoration of Rights and Remedies...................33
SECTION 5.10. Rights and Remedies Cumulative.......................33
SECTION 5.11. Delay or Omission Not Waiver.........................33
SECTION 5.12. Control by Holders...................................34
SECTION 5.13. Waiver of Past Defaults..............................34
SECTION 5.14. Undertaking for Costs................................34
ARTICLE SIX
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities..................35
SECTION 6.02. Notice of Defaults...................................36
-ii-
Page
----
SECTION 6.03. Certain Rights of Trustee............................36
SECTION 6.04. Not Responsible for Recitals or Issuance of
Securities.........................................38
SECTION 6.05. May Hold Securities..................................38
SECTION 6.06. Money Held in Trust..................................38
SECTION 6.07. Compensation and Reimbursement.......................38
SECTION 6.08. Disqualification; Conflicting Interests..............39
SECTION 6.09. Corporate Trustee Required; Eligibility..............39
SECTION 6.10. Resignation and Removal; Appointment of Successor....40
SECTION 6.11. Acceptance of Appointment by Successor...............41
SECTION 6.12. Merger, Conversion, Consolidation or Succession to
Business...........................................42
SECTION 6.13. Preferential Collection of Claims Against Company....43
SECTION 6.14. Trustee's Application for Instructions from the
Company............................................43
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. Company To Furnish Trustee Names and Addresses of
Holders............................................43
SECTION 7.02. Preservation of Information; Communications to
Holders............................................44
SECTION 7.03. Reports by Trustee...................................44
SECTION 7.04. Reports by Company...................................44
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms.45
SECTION 8.02. Successor Corporation Substituted....................46
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders...46
SECTION 9.02. Supplemental Indentures With Consent of Holders......47
SECTION 9.03. Execution of Supplemental Indentures.................48
SECTION 9.04. Effect of Supplemental Indentures....................48
SECTION 9.05. Conformity With Trust Indenture Act..................48
SECTION 9.06. Reference in Securities to Supplemental Indentures...48
ARTICLE TEN
COVENANTS
-iii-
Page
----
SECTION 10.01. Payment of Principal and Interest..................49
SECTION 10.02. Maintenance of Office or Agency....................49
SECTION 10.03. Money for Security Payments To Be Held in Trust....49
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 11.01. Applicability of Article...........................50
SECTION 11.02. Election To Redeem; Notice to Trustee..............50
SECTION 11.03. Selection by Trustee of Securities To Be Redeemed..51
SECTION 11.04. Notice of Redemption...............................51
SECTION 11.05. Deposit of Redemption Price........................52
SECTION 11.06. Securities Payable on Redemption Date..............52
SECTION 11.07. Securities Redeemed in Part........................52
ARTICLE TWELVE
SINKING FUNDS
SECTION 12.01. Applicability of Article...........................53
SECTION 12.02. Satisfaction of Sinking Fund Payments With
Securities.......................................53
SECTION 12.03. Redemption of Securities for Sinking Fund..........54
-iv-
INDENTURE
INDENTURE, dated as of [ ], [ ], between ENERGY PARTNERS, LTD., a Delaware
corporation whose principal office is at 000 Xx. Xxxxxxx Xxx., Xxxxx 0000, Xxx
Xxxxxxx, Xxxxxxxxx 00000 (herein called the "Company"), and [ ], as Trustee
(herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of indebtedness (herein called
the "Securities") to be issued in one or more series as provided in this
Indenture.
All things necessary to make this Indenture a valid agreement of the
Company and the Trustee, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the Securities
are made, executed, authenticated, issued and delivered, the Company and the
Trustee covenant and agree with each other, for the equal and proportionate
benefit of all Holders (as defined below) of the Securities or of any series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01. Definitions
For all purposes of this Indenture and any indenture supplemental hereto,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article One have the meanings assigned
to them in this Article One and include the plural as well as the singular;
(2) 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
re-
-2-
quired or permitted hereunder shall mean such accounting principles as are
generally accepted at the date of this Indenture; and
(3) 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.
Certain terms, used principally in Article Six, are defined in Section
1.02.
"Act" when used with respect to any Holder has the meaning specified in
Section 1.05.
"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 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.
"Agent Members" has the meaning specified in Section 3.12.
"Authorized Newspaper" means a newspaper of general circulation in the New
York, New York area, printed in the English language and customarily published
on each Business Day, whether or not published on Saturdays, Sundays or
holidays. Whenever successive weekly publications in an Authorized Newspaper are
required hereunder they may be made (unless otherwise expressly provided herein)
on the same or different days of the week and in the same or in different
Authorized Newspapers.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"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 each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in the State of New York are
authorized or obligated by law or executive order to close.
"Capital Stock," as applied to the stock of any Person, means the capital
stock of every class, whether now or hereafter authorized, regardless of whether
such capital stock shall be limited to a fixed sum or percentage with respect to
the rights of the holders thereof to
-3-
participate in dividends and in the distribution of assets upon the voluntary or
involuntary liquidation, dissolution or winding up of such Person.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, 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.
"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, its President,
or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary
or an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee at which
at any particular time its corporate trust business shall be principally
administered, which office is, at the date as of which this Indenture in dated,
located at [ ], Attn: [ ].
"corporation" includes corporations, associations, companies and business
trusts.
"Debt" means indebtedness for money borrowed.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Depository" has the meaning specified in Section 3.12.
"Event of Default" has the meaning specified in Section 5.01.
"Global Security" has the meaning specified in Section 3.01.
"Holder" means a Person in whose name a Security is registered in the
Securities Register.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
or amendments hereto entered into pursuant to the applicable provisions hereof.
-4-
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Maturity," when used with respect to one of the Securities, means the date
on which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President, or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee, which shall to the extent applicable contain the
statements required by Section 1.03.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company, which shall to the extent applicable contain the statements
required by Section 1.03.
"Outstanding," when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment 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; and
(iii) Securities in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this Indenture;
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, 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, only Securities which a Responsible Officer of the Trustee
actually 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 Com-
-5-
pany 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 interest on any Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, limited liability company, unlimited liability
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 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.
"Record Date" for the interest payable on any Interest Payment Date means
the date specified pursuant to Section 3.01.
"Redemption Date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed by or pursuant to this Indenture.
"Responsible Officer," when used with respect to the Trustee, means any
vice president, any senior trust officer, any trust officer 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
and who shall have direct responsibility for the administration of this
Indenture.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any securities authenticated and delivered under
this Indenture.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 3.05.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.07.
-6-
"Stated Maturity," when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subsidiary" means a 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.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended, as
in force at the date as of which this instrument was executed, except as
provided in Section 9.05.
"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
such successor Trustee.
"Vice President," when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
"Voting Stock" means stock which ordinarily has voting power for the
election of a majority 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.
SECTION 1.02. Incorporation by Reference of Trust Indenture Act
Whenever this Indenture refers to a provision of the Trust Indenture Act,
the provision is incorporated by reference in and made a part of this Indenture.
The following Trust Indenture Act terms used in this Indenture have the
following meanings:
"Bankruptcy Act" means the Bankruptcy Act (Title 11 of the United States
Code).
"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the Securities means the Company or any other obligor on the
Securities.
-7-
All the other Trust Indenture Act terms used in this Indenture that are
defined by the Trust Indenture Act, defined by Trust Indenture Act reference to
another statute or defined by Commission rule have the meanings assigned to them
thereby.
SECTION 1.03. 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 expressly provided in this Indenture, 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 shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether such covenant or condition has
been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 1.04. 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.
-8-
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
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such 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.
SECTION 1.05. Acts of Holders
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders of
the Outstanding Securities of all series or one or more series, as the case may
be, 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 Holder or 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 6.01) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section
1.05. The Company may set a record date for purposes of determining the identity
of Holders entitled to vote or consent to any action by vote or consent
authorized or permitted under this Indenture, which record date shall be not
earlier than 30 days prior to the first solicitation of such vote or consent. If
a record date is fixed, those persons who were Holders of Securities at such
record date (or their duly designated proxies), and only those persons, shall be
entitled to take such action by vote or consent or to revoke any vote or consent
previously given, whether or not such persons continue to be Holders after such
record date. No such vote or consent shall be valid or effective for more than
120 days after such record date.
(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
-9-
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 Securities 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.
SECTION 1.06. 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 (unless otherwise herein expressly provided) 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 Indenture or at any other address previously
furnished in writing to the Trustee by the Company, Attention: Corporate
Secretary.
SECTION 1.07. Notices 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 Securities Register, not
later than the latest date, and not earlier than the earliest date, 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
-10-
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.
In case by reason of the suspension of regular mail service, or by reason
of any other cause, it shall be impracticable to give notice as required by this
Indenture, then such method of notification as shall be made with the approval
of the Trustee shall constitute a sufficient notice.
SECTION 1.08. Conflict With Trust Indenture Act
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act 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.
SECTION 1.09. 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.
SECTION 1.10. Successors and Assigns
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 1.11. 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.
SECTION 1.12. 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
and the Holders of Securities, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
-11-
SECTION 1.13. Governing Law
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York, without regard to principles
of conflicts of laws to the extent that the application of the law of another
jurisdiction would be required thereby.
SECTION 1.14. Legal Holidays
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or of the Securities) payment of interest on
or principal (and premium, if any) of such Security need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date, Redemption Date or at the
Stated Maturity; and, if so made, no interest shall accrue for the period from
and after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be.
ARTICLE TWO
FORM OF SECURITIES
SECTION 2.01. Forms Generally
The Securities of each series and the Trustee's certificates of
authentication shall be in substantially such form (not inconsistent with this
Indenture) as shall be established by or pursuant to one or more Board
Resolutions and set forth in such Board Resolutions, or, to the extent
established pursuant to, rather than set forth in, such Board Resolutions, an
Officers' Certificate detailing such establishment, 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 imprinted or otherwise reproduced thereon such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon, not inconsistent with the provisions of this Indenture, as may be
required to comply with any law or with any rules or regulations pursuant
thereto, or with any rules of any securities exchange or to conform to general
usage, all as determined by the officers executing such Securities, as evidenced
by such execution. If the form or forms of Securities of any series are
established by action taken pursuant to a Board Resolution 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 Company Order contemplated by Section 3.03 for the
authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods or, if applicable, may be produced
in any manner
-12-
permitted by the rules of any securities exchange on which the Securities may be
listed, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
SECTION 2.02. Form of Trustee's Certificate of Authentication
The Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the securities of the series designated herein and issued
pursuant to the within-mentioned Indenture.
[ ]
as Trustee
Dated:
By:
------------------------------
Authorized Signatory
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Title and Terms
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is not limited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to Board Resolutions and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series, any or all of the following, as
applicable:
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other series of Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 3.04, 3.05, 3.06, 9.06 or 11.07);
-13-
(3) the date or dates on which the principal of the Securities of the
series is payable or the manner in which such dates are determined;
(4) the rate or rates at which the Securities of the series shall bear
interest, or the manner in which such rates are to be determined, the date
or dates from which such interest shall accrue, or the manner in which such
dates are to be determined, the Interest Payment Dates on which such
interest shall be payable and the Record Dates, if any, for the interest
payable on any Interest Payment Date;
(5) the place or places where the principal of (and premium, if any,
on) and interest, if any, on Securities of the series shall be payable;
(6) the period or periods within which, the date or dates on 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;
(7) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any sinking fund, amortization
or other provisions and the period or periods within which or the date or
dates on which, the price or prices at which and the terms and conditions
upon which Securities of the series shall be redeemed, purchased or repaid,
in whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(9) if other than the Trustee, the identity of the Securities
Registrar and/or the Paying Agent;
(10) 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
5.02;
(11) if other than such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public or
private debts, the coin or currency or currency unit in which payment of
the principal of (and premium, if any, on) or interest, if any, on the
Securities of the series shall be payable;
(12) if the amount of payment of principal of (and premium, if any,
on) or interest, if any, on the Securities of the series may be determined
with reference to an index, formula or other method based on a coin or
currency or currency unit other than that in which the Securities are
stated to be payable, the manner in which such amounts shall be determined;
-14-
(13) if the principal of (and premium, if any, on) or interest, if
any, on the Securities of the series are to be payable, at the election of
the Company or a Holder thereof, in a coin or currency or currency unit
other than that in which the Securities are stated to be payable, the
period or periods within which, or the date or dates on which and the terms
and conditions upon which, such election may be made;
(14) whether the Securities of the series are subject to defeasance or
covenant defeasance, or such other means of satisfaction and discharge as
may be specified for a series;
(15) any deletions or modifications of or additions to the Events of
Default set forth in Section 5.01 or covenants of the Company set forth in
Article Eight or Ten pertaining to the Securities of the series;
(16) the forms of the Securities of any series;
(17) whether any Securities will be represented by a global Security
(a "Global Security") and the terms of any such Global Security;
(18) the applicable CUSIP numbers;
(19) the terms governing the subordination of the Securities to senior
indebtedness of the Company and any provisions related thereto;
(20) whether the Securities will be guaranteed by any of the Company's
Subsidiaries and the terms of any guarantees;
(21) whether and upon what terms the Securities will be convertible
into or exchangeable for other securities or other property; and
(22) any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to the series (which
terms may be inconsistent with the provisions of this Indenture but shall
not violate the Trust Indenture Act).
Not all Securities of any one series need 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 a Board Resolution, such Board Resolution and the Officers' Certificate
setting forth the terms of the series shall be delivered to the Trustee at or
prior to the delivery of the Company Order for authentication and delivery of
Securities of such series.
-15-
The principal of (and premium, if any, on) and interest on the Securities
shall be payable at the office or agency of the Company maintained by the
Company for such purpose; provided, however, that interest may be payable at the
option of the Company by check mailed to the address of the person entitled
thereto as such address shall appear on the Securities Register.
SECTION 3.02. Denominations
The Securities of each series shall be issuable in definitive registered
form without coupons and in such denominations as shall be specified as
contemplated by Section 3.01. In the absence of any such provision with respect
to the Securities of any series, the Securities of such series shall be issuable
in denominations of $1,000 and any integral multiple thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its President, or one of its Vice Presidents, and by its Secretary
or one of its Assistant Secretaries. 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 such Company Order shall authenticate and deliver such Securities as in
this Indenture provided and not otherwise. If not all the Securities of any
series are to be issued at one time and if the Board Resolution or supplemental
indenture establishing such series shall so permit, such Company Order may set
forth procedures acceptable to the Trustee for the issuance of such Securities
and the determination of the terms of particular Securities of such series such
as interest rate, Stated Maturity, date of issuance and date from which interest
shall accrue. 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 shall be fully protected in relying
upon, an Opinion of Counsel stating:
(a) that the form or forms and terms of such Securities have been
established in conformity with the provisions of this Indenture and
-16-
(b) that such Securities, when completed by appropriate insertions and
executed by the Company and delivered to the Trustee for authentication in
accordance with this Indenture, authenticated and delivered by the Trustee
in accordance with this Indenture and issued by the Company in the manner
and subject to any conditions specified in such Opinion of Counsel, will
constitute the legal, valid and binding obligations of the Company.
If not all the Securities of any series are to be issued at one time, it
shall not be necessary to deliver an Opinion of Counsel at the time of issuance
of each Security, but such opinion with appropriate modifications shall be
delivered at or before the time of issuance of the first Security of such
series. The Trustee shall not be required to authenticate Securities if the
issuance 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.
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.
SECTION 3.04. 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, 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.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of each such series to be prepared without unreasonable
delay. After the preparation of definitive Securities of any series, the
temporary Securities of each such series shall be exchangeable for definitive
Securities upon surrender of the temporary Securities of such series at any
office or agency of the Company designated pursuant to Section 10.02, 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 a like principal amount of
definitive Securities of authorized denominations of the same series. Until so
exchanged the temporary Securities of any series
-17-
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
SECTION 3.05. 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 designated pursuant to Section 10.02 being herein sometimes
collectively referred to as the "Securities 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 "Securities Registrar" for the purposes of registration and transfer
of Securities as herein provided.
Upon surrender for registration of transfer of any Securities of a series
at an office or agency of the Company designated pursuant to Section 10.02 for
such purpose, 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, of a like
aggregate principal amount.
At the option of the Holder, Securities of a series may be exchanged for
other Securities of the same series, of any authorized denominations, of a like
aggregate principal amount, upon surrender of the Securities of such series to
be exchanged at such office or agency, and upon payment, if the Company shall so
require, of the charges hereinafter provided. 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 Securities Registrar) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Securities 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 3.04 or 9.06 not involving any transfer.
-18-
The Company shall not be required to (i) issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 days before the day of the selection for redemption of Securities of
that series under Section 11.03 and ending at the close of business on the day
of the mailing of notice of redemption or (ii) register the transfer of or
exchange any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
Any Holder of a Global Security shall, by acceptance of such Global
Security, agree that transfers of beneficial interests in such Global Security
may be effected only through a book entry system maintained by the Holder of
such Global Security (or its agent), and that ownership of a beneficial interest
in the Security shall be required to be reflected in a book entry.
SECTION 3.06. 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 like series, tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
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 upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of like series, 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, pay such Security.
Upon the issuance of any new Security under this Section 3.06, 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 issued pursuant to this Section 3.06 in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the 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 duly issued hereunder.
-19-
The provisions of this Section 3.06 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.
SECTION 3.07. Payment of Interest; Interest Rights Preserved
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date or within 30 days thereafter shall be
paid to the Person in whose name such Security (or one or more Predecessor
Securities) is registered at the close of business on the Record Date for such
interest; provided, however, that each installment of interest on any Security
may at the Company's option be paid by mailing a check for such interest,
payable to or upon the written order of the Person entitled thereto pursuant to
Section 3.08, to the address of such Person as it appears on the Securities
Register.
Any interest on any Security which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date or within 30 days thereafter
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
registered Holder on the relevant Record Date; and, except as hereinafter
provided, such Defaulted Interest may be paid by the Company, at its election in
each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security and
the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date
of the proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 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 at his address as it appears in the Securities 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 mailed as aforesaid, such Defaulted Interest shall be paid to
the Persons in whose names the Securities (or their respective Predecessor
Se-
-20-
curities) are registered on such Special Record Date and shall no longer be
payable pursuant to the following clause (2).
(2) 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 given by the Company to the Trustee of the proposed payment pursuant
to this clause, such payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 3.07, each Security
delivered under this Indenture upon 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.
SECTION 3.08. 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 premium, if any, on)
and (subject to Section 3.07) interest, if any, 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.
SECTION 3.09. 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 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 3.09, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee shall
be disposed of by the Trustee in its customary manner.
SECTION 3.10. Computation of Interest
Except as otherwise specified as contemplated by Section 3.01 for
Securities of any series, any interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
-21-
SECTION 3.11. CUSIP Numbers
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use CUSIP numbers in notices of
redemption as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Trustee of any
change in the CUSIP numbers.
SECTION 3.12. Book-Entry Provisions for Global Security
(a) Any Global Security of a series initially shall (i) be registered in
the name of the depository, who shall be The Depository Trust Company or as
otherwise identified in the Board Resolution authorizing the issuance of such
series of Securities (the "Depository") or the nominee of such Depository, (ii)
be delivered to the Trustee as custodian for such Depository and (iii) bear any
required legends.
Members of, or participants in, the Depository ("Agent Members") shall have
no rights under this Indenture with respect to any Global Security held on their
behalf by the Depository, or the Trustee as its custodian, or under the Global
Security, and the Depository may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner of the Global Security
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
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 the Depository or impair, as between the Depository and its Agent
Members, the operation of customary practices governing the exercise of the
rights of a Holder of any Security.
(b) Transfers of any Global Security shall be limited to transfers in
whole, but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in the Global Security may be
transferred or exchanged for definitive Securities in accordance with the rules
and procedures of the Depository. Definitive Securities shall be transferred to
all beneficial owners in exchange for their beneficial interests in a Global
Security only if (i) the Depository notifies the Company that it is unwilling or
unable to continue as Depository for the Global Security and a successor
depository is not appointed by the Company within 90 days of such notice or (ii)
an Event of Default has occurred and is continuing.
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in any Global Security to beneficial owners pursuant to
paragraph (b), the Securities Registrar shall (if one or more definitive
Securities are to be issued) reflect on the Securi-
-22-
ties Register the date and a decrease in the principal amount of the Global
Security in an amount equal to the principal amount of the beneficial interest
in the Global Security to be transferred, and the Company shall execute, and the
Trustee shall authenticate and deliver, one or more definitive Securities of
like tenor and amount.
(d) In connection with the transfer of an entire Global Security to
beneficial owners pursuant to paragraph (b), the Global Security shall be deemed
to be surrendered to the Trustee for cancellation, and the Company shall
execute, and the Trustee shall authenticate and deliver, to each beneficial
owner identified by the Depository in exchange for its beneficial interest in
the Global Security, an equal aggregate principal amount of definitive
Securities of authorized denominations.
(e) The Holder of any Global Security may grant proxies and otherwise
authorize any person, including Agent Members and persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Securities of such series.
ARTICLE FOUR
SATISFACTION AND DISCHARGE; DEFEASANCE; UNCLAIMED MONEYS
SECTION 4.01. Satisfaction and Discharge of Indenture
If at any time
(a) the Company shall have paid or caused to be paid the principal of
and premium, if any, on and interest on all the Securities of any series
outstanding hereunder, as and when the same shall have become due and
payable, or
(b) the Company shall have delivered to the Trustee for cancellation
all Securities of any series theretofore authenticated (other than any
Securities which shall have been destroyed, lost or stolen and which shall
have been replaced or paid as provided in Section 3.06), or
(c) (i) all the Securities of such series not theretofore delivered to
the Trustee for cancellation shall have become due and payable, are by
their terms to become due and payable within one year or are to be called
for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption; and (ii) the Company shall
have irrevocably deposited or caused to be irrevocably deposited with the
Trustee (or an escrow agent satisfactory to the Trustee) as trust funds the
entire amount in cash (other than moneys repaid by the Trustee or any
paying agent to the Company in accordance with Section 4.06) or direct
noncallable obligations of, or noncallable obligations guaranteed by, the
United States of America or an
-23-
agency thereof for the payment of which guarantee or obligation the full
faith and credit of the United States is pledged ("U.S. Government
Obligations"), maturing as to principal and interest in such amounts and at
such times without consideration of any reinvestment of such principal and
interest as will ensure the availability of cash, or a combination of U.S.
Government Obligations and cash, sufficient to pay at Stated Maturity all
the Securities of such series not theretofore delivered to the Trustee for
cancellation, including principal (and premium, if any) and interest due or
to become due to such date of Stated Maturity (including any mandatory
sinking fund payments) or Redemption Date, as the case may be,
and if, in any such case, the Company shall also pay or cause to be
paid all other sums payable hereunder by the Company with respect to
Securities of such series,
then this Indenture shall cease to be of further effect with respect to
Securities of such series (except as to (i) rights of registration of transfer
and exchange, (ii) substitution of apparently mutilated, defaced, destroyed,
lost or stolen Securities, (iii) rights of Holders to receive payments of
principal thereof and interest thereon, upon the original stated due dates
therefor (including any mandatory sinking fund payments) or Redemption Date (but
not upon acceleration), (iv) the rights, obligations and immunities of the
Trustee hereunder, and (v) the rights of the Holders of Securities of such
series as beneficiaries hereof with respect to the property so deposited with
the Trustee payable to all or any of them), and the Trustee, on demand of the
Company accompanied by an Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided relating to the
satisfaction and discharge of this Indenture with respect to Securities of such
series have been complied with and at the cost and expense of the Company, shall
execute proper instruments acknowledging such satisfaction of and discharging of
this Indenture with respect to Securities of such series.
The Company agrees to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred and to compensate the Trustee for
any services thereafter reasonably and properly rendered by the Trustee in
connection with this Indenture or the Securities of such series.
Notwithstanding the foregoing provisions of this Section 4.01, the
Company's obligations in Section 6.07 shall survive such satisfaction and
discharge.
SECTION 4.02. Legal Defeasance of Securities of any Series
Unless this Section 4.02 is otherwise specified to be inapplicable to
Securities of any series, the Company shall be deemed to have paid and
discharged the entire indebtedness on all the outstanding Securities of any
series on and after the date of the deposit referred to in subparagraph (d)
hereof, and the provisions of this Indenture, as it relates to such outstanding
Securities of such series, shall no longer be in effect (and the Trustee, at the
expense
-24-
of the Company, shall, on demand of the Company, execute proper instruments
acknowledging the same), except as to:
(a) the rights of Holders of Securities of such series to receive,
from the trust funds described in subparagraph (d) hereof, (i) payment of
the principal of and each installment of principal of and interest on the
outstanding Securities of such series on the Stated Maturity of such
principal or installment of principal or interest and (ii) the benefit of
any mandatory sinking fund payments applicable to the Securities of such
series on the day on which such payments are due and payable in accordance
with the terms of this Indenture and the Securities of such series;
(b) the provisions of Sections 3.05, 3.06, 4.07, 5.02, 6.07, 6.10,
10.01 and 10.02; provided, however, that the Company's obligations in
Section 5.02 shall survive only with respect to an Event of Default defined
in Section 5.01(1), 5.01(2) or 5.01(3); and
(c) the rights, powers, trust and immunities of the Trustee hereunder;
provided that, the following conditions shall have been satisfied:
(d) the Company shall have irrevocably deposited or caused to be
irrevocably deposited with the Trustee (or an escrow agent satisfactory to
the Trustee) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for and dedicated
solely to the benefit of the Holders of such Securities cash or U.S.
Government Obligations or a combination of U.S. Government Obligations and
cash, which through the payment of interest and principal in respect
thereof in accordance with their terms, will provide (and without
reinvestment and assuming no tax liability will be imposed on such
Trustee), not later than one day before the due date of any payment of
money, an amount in cash or a combination of U.S. Government Obligations
and cash, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge each installment of
principal of and interest, if any, on and any mandatory sinking fund
payments in respect of all the Securities of such series on the dates such
installments of interest or principal and such sinking fund payments are
due;
(e) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(f) no Default or Event of Default with respect to the Securities of
such series shall have occurred and be continuing on the date of such
deposit;
-25-
(g) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel to the effect that (i) the Company
has received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of execution of this Indenture,
there has been a change in the applicable Federal income tax law, in either
case to the effect that, and based thereon such Opinion of Counsel shall
confirm that, the Holders of the Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a result
of such deposit, defeasance and discharge and will be subject to Federal
income tax on the same amounts and in the same manner and at the same times
as would have been the case if such deposit, defeasance and discharge had
not occurred; and
(h) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this
Section have been complied with.
SECTION 4.03. Covenant Defeasance
Unless this Section 4.03 is otherwise specified to be inapplicable to
Securities of any series, on and after the date of the deposit referred to in
subparagraph (a) hereof, the Company may omit to comply with respect to the
Securities of any Series with any term, provision or condition set forth under
Sections 8.01 and 10.03 as well as any additional covenants specified in a
supplemental indenture for such series of Securities or a Board Resolution (and
the failure to comply with any such covenants shall not constitute a Default or
Event of Default with respect to such Series under Section 5.01) and the
occurrence of any event specified in a supplemental indenture for such series of
Securities or a Board Resolution and designated as an Event of Default shall not
constitute a Default or Event of Default hereunder, with respect to the
Securities of such series, provided that the following conditions shall have
been satisfied:
(a) With reference to this Section 4.03, the Company has irrevocably
deposited or caused to be irrevocably deposited with the Trustee (or an
escrow agent satisfactory to the Trustee) as trust funds in trust for the
purpose of making the following payments specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such Securities
cash or U.S. Government Obligations or a combination of U.S. Government
Obligations and cash, which through the payment of interest and principal
in respect thereof in accordance with their terms, will provide (and
without reinvestment and assuming no tax liability will be imposed on such
Trustee), not later than one day before the due date of any payment of
money, an amount in cash or a combination of U.S. Government Obligations
and cash, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge each installment of
principal of and interest, if any, on and any mandatory sinking fund
payments in re-
-26-
spect of the Securities of such series on the dates such installments of
interest or principal and such sinking fund payments are due;
(b) Such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(c) No Default or Event of Default with respect to the Securities of
such series shall have occurred and be continuing on the date of such
deposit;
(d) The Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that Holders of the Securities of such series will
not recognize income, gain or loss for federal income tax purposes as a
result of such deposit and covenant defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such deposit and covenant defeasance
had not occurred; and
(e) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the covenant defeasance
contemplated by this Section have been complied with.
SECTION 4.04. Deposited Moneys To Be Held in Trust by Trustee
All moneys deposited with the Trustee pursuant to this Article Four shall
be held in trust and applied by it to the payment, either directly or through
any paying agent (including the Company if acting as its own paying agent), to
the Holders of the particular Securities of such series for the payment of which
such moneys have been deposited with the Trustee of all sums due and to become
due thereon for principal and interest.
SECTION 4.05. Paying Agent To Repay Moneys Held
Upon the satisfaction and discharge of this Indenture with respect to
Securities of any series, all moneys then held by any paying agent of the
Securities of such series (other than the Trustee) shall, upon demand of the
Company, be repaid to it or paid to the Trustee, and thereupon such paying agent
shall be released from all further liability with respect to such moneys.
SECTION 4.06. Return of Unclaimed Moneys
Any moneys deposited with or paid to the Trustee for payment of the
principal of or interest on Securities and not applied but remaining unclaimed
by the Holders of Securities of any series for two years after the date upon
which the principal of or interest on such
-27-
Securities, as the case may be, shall have become due and payable, shall be
repaid to the Company by the Trustee on written demand and all liability of the
Trustee shall thereupon cease; and the Holder of any of the Securities of any
series shall thereafter look only to the Company for any payment which such
Holder may be entitled to collect.
SECTION 4.07. Reinstatement
If the Trustee is unable to apply any money or U.S. Government Obligations
in accordance with Article Four with respect to Securities of any series by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's obligations under this Indenture with respect to
the Securities of such series shall be revived and reinstated as though no
deposit had occurred pursuant to Article Four until such time as the Trustee is
permitted to apply all such money or U.S. Government Obligations in accordance
with Article Four; provided, however, that if the Company has made any payment
of interest on or principal of any Securities of such series because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money or U.S.
Government Obligations held by the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 5.01. Events of Default
"Event of Default" with respect to Securities of any series, wherever used
herein, means any one of the following events which shall have occurred and be
continuing (whatever the reason for such Event of Default and whether it shall
be voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body):
(1) default in the payment of the principal of and premium, if any, on
any Security of such series as and when the same shall become due and
payable, either at its Maturity or otherwise; or
(2) default in the payment of any installment of interest on any
Security of such series when it becomes due and payable, and the
continuance of such default for a period of 30 days; or
(3) default in the payment of any sinking fund payment, when and as
due by the terms of the Securities of that series; or
-28-
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture or the Securities in respect of the
Securities of such series (other than a covenant or warranty in respect of
the Securities of such series a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with), 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 all series affected
thereby, 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
(5) the entry of a decree or order by a court having jurisdiction in
the premises adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking relief, reorganization, arrangement,
adjustment or composition of or in respect of the Company under U.S.
federal bankruptcy law or any other applicable U.S. federal or state law,
or appointing a receiver, liquidator, assignee, trustee, sequestrator,
custodian or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order unstayed and in
effect for a period of 90 consecutive days; or
(6) the institution by the Company of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under U.S.
federal bankruptcy law or any other applicable U.S. federal or state law,
or the consent by it to the filing of such petition or to the appointment
of or taking of possession by a receiver, liquidator, assignee, trustee,
sequestrator, custodian or similar official of the Company or of any
substantial part of its property, or the making by it of a general
assignment for the benefit of creditors, or the admission by the Company in
writing of 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
(7) any other Event of Default provided with respect to Securities of
that series.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment
If an Event of Default described in Section 5.01(l), (2), (3), (4) (if the
Event of Default under clause (4) is with respect to less than all series of
Securities then Outstanding) or (7) above occurs and is continuing, then and in
every such case the Trustee or the Holders of not less than 25% in principal
amount of the Securities of such series then Outstanding (each such series
voting as a separate class) may declare the principal of all the Securities of
-29-
such 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 shall become and shall be immediately due and payable, anything
in this Indenture or in the Security contained to the contrary notwithstanding.
Upon payment of such amount, all obligations of the Company in respect of the
payment of principal of the Securities of such series shall terminate. If an
Event of Default described in Section 5.01(4) (if the Event of Default under
clause (4) is with respect to all series of Securities then Outstanding), (5) or
(6) above occurs and is continuing, then and in every such case, unless the
principal of all the Securities shall have already become due and payable, the
Trustee or the Holders of not less than 25% in principal amount of all the
Securities then Outstanding (treated as one class) which have not previously
become due and payable may declare the entire principal of all the Securities
then Outstanding to be due and payable immediately, by notice in writing to the
Company (and to the Trustee if given by Holders) and upon any such declaration
such principal shall become and shall be immediately due and payable, anything
in this Indenture or in the Securities contained to the contrary
notwithstanding. Upon payment of such amount, all obligations of the Company in
respect of the payment of principal of the Securities shall terminate.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in principal amount of the Outstanding Securities of each series so affected, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue installments of interest on the Securities of
such series, and
(B) the principal of (and premium, if any, on) and any sinking
fund payments with respect to any Securities of such series which have
become due otherwise than by such declaration of acceleration, with
interest thereon from the date such principal became due at the rate
borne by the Securities of such series, and
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the rate borne by
the Securities of such series, 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
-30-
(2) all Events of Default, other than the nonpayment of the principal
of Securities of such 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.
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee
The Company covenants that if default is made in the payment of (1) any
installment of interest on any Security of any series when such interest becomes
due and payable and such default continues for a period of 30 days or (2) the
principal of (and premium, if any, on) any Security of any series at the
Maturity thereof or otherwise, the Company will, upon demand of the Trustee, pay
to the Trustee, for the benefit of the Holders of such Securities of each series
so affected, the whole amount then due and payable on such Securities of such
series for principal (and premium, if any) or interest, if any, or both, as the
case may be, with interest upon the overdue principal and, to the extent that
payment of such interest shall be legally enforceable, upon overdue installments
of interest, at the rate per annum borne by the Securities during the period of
such default; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon the Securities of each series so
affected and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any other obligor upon the
Securities of each series so affected, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders 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.
SECTION 5.04. Trustee May File Proofs of Claim
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the prin-
-31-
cipal of the Securities of each series so affected shall then be due and payable
as therein expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand on the Company for the payment of overdue
principal or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(a) to file and prove a claim for the amount of principal (and
premium, if any) and interest, if any, owing and unpaid in respect of the
Securities of each series so affected and to file such other papers or
documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Holders allowed in such judicial proceeding and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator, custodian 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 6.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 5.05. 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.
SECTION 5.06. Application of Money Collected
Any money collected by the Trustee pursuant to this Article Five 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 (and premium,
if any) or interest, if any, upon
-32-
presentation of the Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
6.07;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any, on) and interest, if any, on the
Securities of the series in respect of which or for the benefit of which
such money has been collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest, if any, respectively; and
THIRD: The balance, if any, to the Company.
SECTION 5.07. 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 each series affected (with each series voting as
a separate class) 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 indemnity
reasonably satisfactory to it against the costs, expenses and liabilities
to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(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 each series affected
(with each series voting as a separate class);
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, dis-
-33-
turb or prejudice the rights of any other Holders, or to obtain or to seek to
obtain priority or preference over any other Holders or to enforce any right
under this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all the Holders.
SECTION 5.08. Unconditional Right of Holders To Receive Principal and Interest
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any, on) and (subject to Section
3.07) interest, if any, on such Security on or after the Stated Maturity
expressed in such Security (or, in the case of redemption, 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.
SECTION 5.09. 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.
SECTION 5.10. Rights and Remedies Cumulative
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.
SECTION 5.11. Delay or Omission Not Waiver
No delay or omission of the Trustee or of any Holder of any Security 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.
-34-
SECTION 5.12. Control by Holders
The Holders of a majority in principal amount of the Outstanding Securities
of each series affected (each series voting as a separate class) shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee, with respect to the Securities of such series; provided that
(a) such direction shall not be in conflict with any rule of law or with
this Indenture and
(b) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 5.13. Waiver of Past Defaults
The Holders of not less than a majority in principal amount of the
Outstanding Securities of each series (each series voting as a separate class)
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 (and premium, if any, on) or
interest, if any, on any Security or
(b) in respect of a covenant or provision hereof which under Article
Nine 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.
SECTION 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 or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section 5.14 shall not apply to
-35-
any suit instituted by the Trustee, 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 each series affected, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of (or premium,
if any, on) or interest, if any, on any Security of such series on or after the
Stated Maturity expressed in such Security (or, in the case of redemption, on or
after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities
(a) With respect to the Securities of any series, except during the
continuance of an Event of Default with respect to Securities of such series,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of any mathematical calculations or other facts
stated therein).
(b) In case an Event of Default with respect to the Securities of any
series has occurred and is continuing, the Trustee shall with respect to the
Securities of such series, exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise,
as a prudent person would exercise or use under the circumstances in the conduct
of such person's own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that
(1) this paragraph (c) shall not be construed to limit the effect of
paragraph (a) of this Section 6.01;
-36-
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it with respect to the Securities of any series
in good faith in accordance with the direction of the Holders of a majority
in principal amount of the Outstanding Securities of such series relating
to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Indenture.
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.
The Trustee, however, may so advance or expend its own funds if, in its own
reasonable judgment, the Trustee believes that repayment of such funds or
adequate indemnity against such risk or liability has been reasonably assured to
it.
SECTION 6.02. Notice of Defaults
Within 90 days after the occurrence of any default hereunder with respect
to the Securities of any series, the Trustee shall transmit by mail to all
Holders of such series entitled to receive reports pursuant to Section 7.04
notice of such default hereunder known to the Trustee, unless such default shall
have been cured or waived; provided, however, that, except in the case of a
default in the payment of the principal of (and premium, if any) or interest, if
any, on any Security of such series, the Trustee shall be protected in
withholding such notice if and so long as the Board of Directors, the executive
committee or a trust committee of directors or Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
interest of the Holders; and provided, further, that in the case of any default
of the character specified in Section 5.01(4) with respect to Securities of such
series, no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section 6.02, 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.
SECTION 6.03. Certain Rights of Trustee
Except as otherwise provided in Section 6.01:
(a) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note or other
-37-
paper or document (whether in its original or facsimile form) 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 and any
resolution of the Board of Directors 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;
(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 reasonably
satisfactory to it 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 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, at the expense of the Company, and shall incur no liability or
additional liability of any kind by reason of such inquiry or
investigation;
(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;
(h) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Indenture;
-38-
(i) the Trustee shall not be deemed to have notice of any default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Securities and this Indenture;
and
(j) the rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its
capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder.
SECTION 6.04. 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 assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Securities. The Trustee shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 6.05. May Hold Securities
The Trustee, any Paying Agent, any Securities Registrar or any other agent
of the Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 6.08 and 6.13, may otherwise deal
with the Company with the same rights it would have if it were not the Trustee,
Paying Agent, Securities Registrar or such other agent.
SECTION 6.06. 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.
SECTION 6.07. Compensation and Reimbursement
The Company agrees
(a) to pay to the Trustee from time to time such compensation as shall
be agreed upon in writing from time to time 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);
-39-
(b) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all 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 any such expense,
disbursement or advance as may be attributable to its negligence or willful
misconduct; and
(c) to indemnify the Trustee and any predecessor Trustee for, and to
hold it harmless against, any and all loss, liability, claim, damage or
expense incurred without negligence or willful misconduct on its part,
arising out of or in connection with the acceptance or administration of
this Indenture, 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.
As security for the performance of the obligations of the Company under
this Section 6.07, the Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of and premium, if any, on or
interest, if any, on the Securities.
SECTION 6.08. Disqualification; Conflicting Interests
If the Trustee has or shall acquire any conflicting interest within the
meaning of the Trust Indenture Act with respect to the Securities of any series,
it shall either eliminate such conflicting interest or resign with respect to
the Securities of such series, to the extent and in the manner provided by, and
subject to the provisions of, the Trust Indenture Act and this Indenture.
SECTION 6.09. Corporate Trustee Required; Eligibility
There shall at all times be a Trustee hereunder with respect to each series
of Securities which shall be a Person eligible under the Trust Indenture Act,
having a combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by U.S. Federal or State authority. If such
corporation 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 6.09, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. No obligor of the
Securities or Person directly or indirectly controlling, controlled by or under
common control with such obligor shall serve as Trustee upon such Securities. If
at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 6.09, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article Six.
-40-
SECTION 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 Six shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(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 an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition at the expense of the Company any court of
competent jurisdiction for the appointment of a successor Trustee.
(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 to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the receipt of such notice of
removal, the removed Trustee may petition at the expense of the Company any
court of competent jurisdiction for the appointment of a successor Trustee.
(d) If at any time with respect to any series of Securities:
(1) the Trustee shall fail to comply with Section 6.08 after
written request therefor by the Company or by any Holder who has been
a bona fide Holder of a Security of such series for at least six
months, or
(2) the Trustee shall cease to be eligible under Section 6.09 and
shall fail to resign after written request therefor by the Company or
by any such Holder, or
(3) 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 or liquidation, then, in any
such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to such series of Securities or (ii) 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 and the appointment of a successor Trustee.
(4) 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 re-
-41-
spect 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). 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 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 shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided,
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
appointment of a successor Trustee.
(5) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee by
mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of the Securities of one or more or all
series, as the case may be, to which the resignation, removal or
appointment relates, as their names and addresses appear in the
Securities Register. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
SECTION 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 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, subject, nevertheless to its lien, if
any, provided for in Section 6.07.
(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 xxxxx-
-42-
able 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 6.11, 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 Six.
SECTION 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 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, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto; provided such corporation shall be otherwise qualified and
eligible under this Article Six. 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.
-43-
SECTION 6.13. Preferential Collection of Claims Against Company
If and when the Trustee shall become a creditor of the Company (or any
other obligor of the Securities), the Trustee shall be subject to the terms of
the Trust Indenture Act regarding collection of claims against the Company (or
such obligor).
SECTION 6.14. Trustee's Application for Instructions from the Company
Any application by the Trustee for written instructions from the Company
may, at the option of the Trustee, set forth in writing any action proposed to
be taken or omitted by the Trustee under this Indenture and the date on and/or
after which such action shall be taken or such omission shall be effective. The
Trustee shall not be liable for any action taken by, or omission of, the Trustee
in accordance with a proposal included in such application on or after the date
specified in such application (which date shall not be less than three Business
Days after the date any officer of the Company actually receives such
application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. Company To Furnish Trustee Names and Addresses of Holders
The Company will furnish or cause to be furnished to the Trustee:
(a) semiannually, not more than 15 days after each Record Date, a list, in
such form as the Trustee may reasonably require, of the names and addresses of
the Holders as of such Record Date 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;
excluding from any such list names and addresses received by the Trustee in its
capacity as Securities Registrar.
-44-
SECTION 7.02. Preservation of Information; Communications to Holders
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, (i) the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.01 and (ii) the names and
addresses of Holders received by the Trustee in its capacity as Securities
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished.
(b) Holders may communicate as provided in Section 312(b) of the Trust
Indenture Act with other Holders with respect to their rights under this
Indenture or under the Securities.
(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 the
disclosure of any such information as to the names and addresses of the Holders
in accordance with paragraph (b) of this Section 7.02, regardless of the source
from which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
paragraph (b) of this Section 7.02.
SECTION 7.03. Reports by Trustee
(a) Within 60 days after May 15 of each year in which any of the Securities
are Outstanding, the Trustee shall transmit to Holders such reports concerning
the Trustee and its actions under this Indenture as may be required under the
Trust Indenture Act at the time and in the manner provided therein.
(b) A copy of each such report shall, at the time of transmission to
Holders, be filed by the Trustee with each stock exchange upon which the
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when the Securities are listed on any stock exchange.
SECTION 7.04. Reports by Company
(a) The Company shall file with the Trustee, within 15 days after the
Company is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company is required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934, as amended, and shall otherwise comply with Section 314(a) of the
Trust Indenture Act.
-45-
(b) The Company shall furnish to the Trustee, within 120 days after the end
of each fiscal year, a brief certificate from the principal executive officer,
principal financial officer or principal accounting officer as to his or her
knowledge of the Company's compliance with all conditions and covenants under
this Indenture. For purposes of this paragraph (b), such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms
The Company shall not consolidate or amalgamate with or merge into any
other Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, unless:
(1) in case the Company shall consolidate or amalgamate with or merge
into another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person formed by such
consolidation or amalgamation or into which the Company is merged or the
Person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an entirety shall be
a corporation, partnership, limited liability company, unlimited liability
company or trust organized and existing under the laws of the United States
of America, any state thereof or the District of Columbia and 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 interest, if any, on all the
Securities and the performance of every covenant of this Indenture on the
part of the Company to be performed or observed;
(2) immediately after giving effect to 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 occurred and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate
stating that such consolidation, merger, conveyance, transfer or lease and,
if a supplemen-
-46-
tal indenture is required in connection with such transaction, such supplemental
indenture comply with this Article Eight and that all conditions precedent
herein provided for relating to such transaction have been complied with.
SECTION 8.02. Successor Corporation Substituted
Upon any consolidation or merger by the Company with or into any other
Person or any conveyance, transfer or lease of the properties and assets of the
Company substantially as an entirety to any Person in accordance with Section
8.01, the successor corporation, partnership, limited liability company,
unlimited liability company or trust formed by or resulting from 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, partnership, limited liability
company, unlimited liability company or trust had been named as the Company
herein, and thereafter, except in the case of a lease to another Person, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. 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:
(1) 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
(2) to add to the covenants of the Company or to the Events of Default
for the benefit of the Holders of all or any series of Securities, or to
surrender any right or power herein conferred upon the Company; or
(3) to secure the Securities; or
(4) 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 questions arising
under this In-
-47-
denture; provided such action shall not adversely affect the interests of
the Holders in any material respect; or
(5) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one trustee, pursuant to the requirements
of Section 6.11.
SECTION 9.02. Supplemental Indentures With Consent of Holders
With the consent of the Holders of not less than a majority in principal
amount of the Securities at the time Outstanding of all series affected by such
supplemental indenture (each such series voting as a separate class), 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 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,
(1) change the Stated Maturity of the principal of (or premium, if
any, on), or any installment of principal of or interest, if any, on, any
Security, or reduce the principal amount thereof or the interest thereon,
or change the place of payment where, or the coin or currency in which, any
Security or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof, or
(2) reduce the percentage in principal amount of the Outstanding
Securities, 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
(3) modify any of the provisions of this Section 9.02 or Section 5.13,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby.
A supplemental indenture that changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or that modifies the
rights of the Holders of Securities of
-48-
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 9.02 to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article Nine or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and 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.
SECTION 9.04. Effect of Supplemental Indentures
Upon the execution of any supplemental indenture under this Article Nine,
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.
SECTION 9.05. Conformity With Trust Indenture Act
Every supplemental indenture executed pursuant to this Article Nine shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.06. Reference in Securities to Supplemental Indentures
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article Nine 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 so modified as to conform, in the opinion of the Trustee and the
Board of Directors, 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.
-49-
ARTICLE TEN
COVENANTS
SECTION 10.01. Payment of Principal and Interest
For the benefit of each series of Securities, the Company will duly and
punctually pay the principal of (and premium, if any) and interest, if any, on
the Securities of that series in accordance with the terms of such Securities
and this Indenture.
SECTION 10.02. Maintenance of Office or Agency
The Company will maintain an office or agency where Securities may be
presented or surrendered for payment, where Securities may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities 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, 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 may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations. The Company
will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
SECTION 10.03. Money for Security 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 premium, if any) or interest, if any, on any of the securities
of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (or premium, if any) or
interest, if any, so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, on each
due date of the principal of (or premium, if any) or interest, if any, on any
Securities, deposit with a Paying Agent a sum sufficient to pay the principal or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal or interest, and
-50-
(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 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 10.03, that such
Paying Agent will:
(a) hold all sums held by it for the payment of the principal of (or
premium, if any) or interest, if any, 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 of that series) in the making of any
payment of principal of (or premium, if any, on) or interest, if any, on
the Securities of that series when the same shall be due and payable; 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.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 11.01. 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 3.01 for Securities of any series) in
accordance with this Article Eleven; provided, however, that if any provision of
any such Security shall conflict with any provision of this Article Eleven, the
provision of such Security shall govern. Except as otherwise set forth in any
Security, each Security shall be subject to partial redemption only in the
amount of $1,000 or integral multiples thereof.
SECTION 11.02. Election To Redeem; Notice to Trustee
The right of the Company to elect to redeem any Securities of any series
shall be set forth in the terms of such Securities of such series established in
accordance with Section 3.01. In case of any redemption at the election of the
Company of less than all the Securities of any series, the Company shall, at
least 45 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
re-
-51-
deemed and shall deliver to the Trustee such documentation and records as shall
enable the Trustee to select the Securities to be redeemed pursuant to Section
11.03. 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.
SECTION 11.03. Selection by Trustee of Securities To Be Redeemed
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as may be
specified by the terms of such Securities or, if no such method is so specified,
by such method as the Trustee shall deem appropriate and which may provide for
the selection for redemption of portions of the principal amount of Securities
of such series.
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.
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.
SECTION 11.04. Notice of Redemption
Notice of redemption shall be given by the Company or, at the Company's
request, by the Trustee to the Holders of the Securities to be redeemed, by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date, to each Holder of Securities to be redeemed, at
such Holder's address appearing in the Securities Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed;
-52-
(4) 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;
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price;
(6) that the redemption is for a sinking fund, if such is the case;
and
(7) the applicable CUSIP numbers.
SECTION 11.05. Deposit of Redemption Price
On or before 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 10.03) an amount of
money 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.
SECTION 11.06. 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 and at the place or places therein specified, and from and
after such date (unless the Company shall default in the payment of the
Redemption Price and accrued interest, if any) 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 installments of interest whose Stated Maturity is on or prior to the
Redemption Date shall 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
3.07.
If any Security called for redemption shall not be so paid upon surrender
therefor, the Redemption Price shall, until paid, bear interest from the
Redemption Date at the rate prescribed therefor in the Security.
SECTION 11.07. Securities Redeemed in Part
Any Security that is to be redeemed only in part shall be surrendered at
the 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 Com-
-53-
pany 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, 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 TWELVE
SINKING FUNDS
SECTION 12.01. Applicability of Article
The provisions of this Article Twelve shall be applicable to any sinking
fund for the retirement of Securities of a series except as otherwise
contemplated by Section 3.01 for Securities of such series; provided, however,
that if any provision of any such Security shall conflict with any provision of
this Article Twelve, the provision of such Security shall govern.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment." If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 12.02. 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.
SECTION 12.02. Satisfaction of Sinking Fund Payments With Securities
The Company may (i) deliver to the Trustee Outstanding Securities of a
series (other than any previously called for redemption) theretofore purchased
or otherwise acquired by the Company and (ii) receive credit for Securities of a
series which have been previously delivered to the Trustee by the Company or for
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 the same 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.
-54-
SECTION 12.03. 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 or crediting Securities of that series
pursuant to Section 12.02 (which Securities will, if not previously delivered,
accompany such certificate) and whether the Company intends to exercise its
right to make a permitted optional sinking fund payment with respect to such
series. Such certificate shall be irrevocable and upon its delivery the Company
shall be obligated to make the cash payment or payments therein referred to, if
any, on or before the next succeeding sinking fund payment date. In the case of
the failure of the Company to deliver such certificate, the sinking fund payment
due on the next succeeding sinking fund payment date for that series shall be
paid entirely in cash and shall be sufficient to redeem the principal amount of
such Securities subject to a mandatory sinking fund payment without the option
to deliver or credit Securities of such series as provided in Section 12.02 and
without the right to make any optional sinking fund payment, if any, with
respect to such series.
Not more than 60 days before each such sinking fund payment date, the
Trustee shall select the Securities of such series to be redeemed upon such
sinking fund payment date in the manner specified in Section 11.03 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 11.04. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 11.06 and 11.07.
On or prior to any sinking fund payment date, the Company shall pay to the
Trustee in cash a sum equal to any interest accrued to the date fixed for
redemption of Securities or portions thereof to be redeemed on such sinking fund
payment date pursuant to this Section 12.03.
This instrument may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
-55-
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed all as of the day and year first above written.
ENERGY PARTNERS, LTD.,
as Issuer
By:
-------------------------------------
Name:
Title:
[ ], as Trustee
By:
-------------------------------------
Name:
Title:
